AZEEM KHAN Versus PROVINCE OF SINDH through Chief Secretary
ORDER
SHAHNAWAZ TARIQ, J.--- Through captioned Constitution Petition, petitioner has agitated order dated 14.10.2015, passed by the Court of Sessions Judge, Karachi South, and sought following prayers:- "a) Declare that detention of the petitioner without proper remand and lawful justification is violation of Articles 4, 9, 10, 14 and 25 of the Constitution of Islamic Republic of Pakistan. b) Declare that the Custody and the remand of the petitioner in terms of order dated 14.10.2015, pass by the learned Sessions Judge, Karachi South, is illegal, ultra vires and without jurisdiction. c) Grant ad-interim bail to the petitioner in FIR No.13 of 2012, under sections 420, 467, 471, 511 and 34, P.P.C., registered at FIA Corporate Crime Circle at Karachi."
2. The relevant facts narrated in instant petition are that petitioner has been running M/s. Mengal Brothers Transport (Pvt.) Ltd. which is enlisted cartage contractor with PSO. Petitioner executed an agreement with PSO for transportation of POL products to Afghanistan. Pursuant to said agreement applicant on behalf of M/s. Megal Brother Transport (Pvt.) Ltd. furnished a bank guarantee, which per confirmation issued by concerned bank, was found fake and fabricated. PSO lodged FIR and initially charge sheet was submitted before the Court of Judicial Magistrate, Karachi South. Learned Sessions Judge, Karachi South vide order dated 14.10.2015, retuned charge sheet to Investigating Officer for its presentation before the Special Court (Offence in Banks) and remanded the petitioner to judicial custody. Investigating Officer submitted charge sheet before the Special Court (Offences in Banks) Karachi, and learned Court while dismissing bail application of petitioner also returned the charge sheet to Investigating Officer for its presentation before the Court of learned Sessions Judge, Karachi South.
3. Learned counsel for petitioner contended that petitioner was granted interim pre-arrest bail by the Court of II-Additional Sessions Judge, Karachi South and he has been regularly appearing before the learned Court and never misused the concession of bail; that M/s. Mengal Brothers Transport (Pvt.) Ltd. has filed Civil Suit bearing No.856 of 2012 against PSO on 01.08.2012 for recovery of cartage charges worth Rs. 187,859,903.11, which is still sub-judice before this Court; that last agreement executed between the parties was for the specific period of w.e.f. 01.01.2011 to 31.12.2011, which was already expired and seized to be effective; that learned Sessions Judge has not properly examined the material available before the Court and passed impugned order without considering the relevant provisions of law; that after presentation of Challan before Special Court (Offences in Banks) at Karachi, applicant preferred bail application which was heard at length and same was dismissed vide order dated 12.11.2015, and charge sheet was returned to Investigating Officer to present the same before the Court of Sessions Judge, Karachi South, but same has yet not been presented before the Sessions Court with ulterior motives; that applicant is behind the bars for about two months and 15 days without adjudication which is violation of Article 10 of the Constitution of Pakistan; that alleged offence is not punishable for death sentence or imprisonment for life, but up to 10 years and fine. Learned counsel relied upon PLD 1996 SC 589, 1985 SCMR 1949, 1994 SCMR 1283, PLD 2007 SC 31, PLD 2005 Karachi 229, PLD 1996 Karachi 517, 2012 YLR 353.
4. While controverting the above submission, learned Standing Counsel contended that applicant has committed fraud by submitting fake bank guarantee against the huge amount with PSO and learned Sessions Judge has rightly returned charge sheet to the Investigating Officer to present the same before the Special Court (Offences in Banks); that 6 co-accused are already absconding in charge sheet and if applicant is enlarged on bail, he will also abscond from the proceedings; that learned Special Court has not properly appreciated the circumstances of the case; that M/s. PSO has already filed criminal revision before this Court against the impugned order passed by learned Special Court (Offences in Banks).
5. We have heard learned counsel for the parties supported with case law and scanned the material available on record.
6. Perusal of record emanates that petitioner was granted ad interim pre-arrest bail by this Court in Bail Application No.82 of 2013 vide order dated 28.01.2013, but later on this Court vide order dated 20.11.2013 converted said ad-interim pre-arrest bail into protective bail, as applicant had directly approached this Court without approaching the concerned Sessions Court. Consequently, petitioner appeared before the Court of learned Sessions Judge, Karachi South by preferring pre-arrest bail application which was transferred to the Court of learned II-Additional Sessions Judge, Karachi South and he was granted ad interim pre-arrest bail vide order dated 05.12.2013. Subsequently, Investigating Officer moved application for return of charge sheet and learned Sessions Judge, Karachi South vide order dated 14.10.2015, was of the view that offence being scheduled, is triable by the Special Court, therefore, he returned charge sheet to Investigating Officer for its presentation before the concerned Special Court (Offences in Banks). Simultaneously, bail was cancelled and petitioner was remanded to judicial custody. The operative part of order dated 14.10.2015 is reproduced as under:-
"On the plain reading of the above provision, it is crystal clear that the offence applied in the charge sheet is scheduled offence and exclusively triable by the Special Court (Offences in Banks) under Ordinance IX of 1984, I, therefore, return the charge sheet to the I.O., with directions to present the same before the Court having jurisdiction. Accused Azeem Khan was granted pre-arrest bail by the learned II-Additional Sessions Judge, Karachi South which is hereby recalled and accused is taken into custody in terms of subsection (7) of section 4 of the Special Courts (Offences in Banks) under Ordinance IX of 1984 and is remanded to judicial custody to produce him before the Special Court (Offences in Banks) at Karachi."
7. In case of Sadiq Ali v. The State (PLD 1966 SC 589), the honourable Supreme Court has observed as follows:-
"Sessions Court has power to make direction for grant of bail to a person whose arrest by police "without warrant" is "imminent and certain" and where circumstances justify such grant. 'Appear' in sections 496 and 497 includes voluntary appearance. Indiscriminate grant of such bail not approved. Sessions Judge granting interim bail before arrest, but subsequently cancelling same. Order of cancellation does not entail that person applying for bail has to be ordered to be given into police custody without there being a request in that behalf by police itself. Applicant to be left to be dealt with as police thought fit in such cases. Order consigning applicant to police custody in absence of such request unwarranted and without jurisdiction. Applicant ordered by Sessions Judge to be remanded to police custody and for that purpose directing Court's orderly to take charge of him. Escape of applicant from such charge not escape from lawful custody. Proceedings under section 224, on basis of such escape not sustainable. Principle akin to, cannot be pressed into service in a case where applicant voluntarily appeared before Court."
In the case of Khan Muhammad and 2 others v. The State (PLD 2005 Karachi 229), it was held as under:-
"Courts not competent to place any restraint on the accused on refusing him pre-arrest bail or cancelling his bail. Courts after admitting the accused not in custody to interim bail may reject, their bail application, but such orders should not entail consequences that they be given in police itself. Proper order in such circumstances by the Courts would be to cancel or reject the ad interim bail and leave the accused to be dealt with by the police as they thought fit. Order remanding such accused to custody is vitiated by lack of jurisdiction, as the Courts are not competent to place any restraint on the accused on refusal or cancellation of his bail."
8. Indeed, it is alleged against the petitioner to have deposited bank guarantee with PSO in the sum of Rs.1.267 Billion from Allied Bank Ltd, Bund Road, Shadipura, Lakhodher, Lahore branch, dated 31.05.2012, during the business dealing for transportation of POL, which subsequently was found fake and forged, thus, apparently he has caused loss if any or defrauded the PSO, but he neither committed any fraud or forgery during the course of day to day business transaction of the bank nor caused any kind of loss to the bank nor the said bank guarantee was result of any collusion or fraud committed by any officer or employee of the bank as envisaged in the Schedule of Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984).
9. It is significant to mention that after lodgment of FIR, initially charge sheet was submitted before the Court of Magistrate and petitioner was facing his trial regularly. Subsequently, after almost 22 months, Investigating Officer without any legal justification had moved application before the learned Sessions Judge for return of charge sheet without collecting any further supportive evidence which may reflect that alleged offence was attracted by the schedule of Offences in Respect of Banks (Special Courts) Ordinance 1984. Investigating Officer has no legal authority to revisit his earlier opinion formed by him on the basis of material collected by him during the course of investigation without gathering fresh evidence in the case. It is incumbent upon the defence counsel as well as prosecutor to honestly and sincerely assist the Court in reaching a final and correct conclusion, and it is the duty of the Court to take utmost care and prevent the abuse of the process of Court, otherwise the faith and trust of the public in the justice system will be shattered. It is well settled principle of law that the High Court is competent to examine and scrutinize that the detenue is not being held in custody without lawful authority or in an unlawful manner and the Court should examine the information, reasons, facts and causes leading to detention, and prosecution is bound to disclose the entire material upon which it has acted and satisfy the Court that such action is lawful and not in violation of law and fundamental rights. Reliance is placed on the case of Government of Sindh v. Raees Farooq (1994 SCMR 1283).
10. Petitioner was initially enlarged on ad-interim pre-arrest bail by the learned II-Additional Sessions Judge, Karachi South vide order dated 05.12.2013, and he was remanded to judicial custody by the learned Sessions Judge, Karachi South vide order 14.10.2015, whereby charge sheet was returned to Investigating Office for its presentation before the concerned Special Court. Nevertheless, during the period of 22 months, petitioner did not misuse the concession of bail nor jumped from the proceedings, therefore, contention raised by learned Standing Counsel regarding abscondment of petitioner if released on bail, is entirely based on the presumption without any legal substance for consideration. Admittedly, there was no request from the Investigating Officer for remanding the petitioner in judicial custody nor to handover the FIA, thus, in absence of such request remand of petitioner to judicial custody is utter violation of the fundamental rights of the petitioner as guaranteed by the Article 10 of Constitution of Pakistan, 1973, and petitioner has been deprived from the right of fair trial to prove his innocence. It is well settled that order of cancellation of bail does not demand or necessitate that person applying for pre-arrest bail has to be ordered to be given into custody, if accused has failed to make out any case for enlargement on bail. Court would not be competent to place any other restraint upon such accused on refusal or cancellation of his bail. Impugned order for consigning the petitioner to judicial custody in absence of such request by the Investigating Officer is unwarranted and without jurisdiction. Reliance is placed on case of Jamaluddin v. The State (1985 SCMR 1949).
11. Conversely, learned counsel for petitioner contended that prosecution has presented Criminal Revision Application No.142 of 2015 in office of this Court against the impugned order passed by learned Special Court, but since then neither same was fixed in Court nor any urgent application has been filed for early hearing to obtain any order in this context and same is lying unattended in office. Learned Standing Counsel did not controvert the submissions made by counsel for petitioner. Above referred scenario reflects mala fide on the part of the prosecution that prosecution is merely interested to keep the petitioner behind the bars, as Investigating Officer has not yet submitted charge sheet before the Court of Sessions Judge, Karachi South, and he is in custody without any charge sheet as well as trial, hence merely filing of revision application by the prosecution would not defeat the legal rights of the petitioner agitated through instant petition.
12. For the facts, circumstances, identical case law referred supra and no objection extended by learned Standing Counsel, petitioner is entitled for the concession of bail. By consent of the parties, petitioner is admitted to post-arrest bail on furnishing solvent surety in the sum of Rs.20.00 million to the satisfaction of Nazir of this Court.
13. The observations made supra are tentative in nature and learned trial Court which ever may be shall decide the case strictly on merits.
These are the detailed reasons for the short order dated 01.01.2016, whereby we have allowed instant Constitution Petition.
JK/A-1/Sindh Bail granted.