ZIAULHASSAN vs THE STATE

ORDER

1. ' MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from order dated 28.11-1983 of the Lahore High Court; whereby pre-arrest bail granted to the petitioner, a police Head Constable, was cancelled.

2. ' The allegation against the petitioner is that he while performing the duties of a Moharir Malkhana of a Police Station, misappropriated valuable articles entrusted to him for safe custody, by defrauding his superiors including a learned Magistrate.

3. ' The formal F. I. R. Was lodged on 15-6-1983 on an order made by the Superintendent Railway Police on 17-2-1983. It seems that the learned trial Court granted interim pre-arrest bail to the petitioner within few days of the registration of the case without application of mind to the serious questions involved in the case, as a matter of course. The interim bail was confirmed on 29-6-1983 with the following short cryptic order.

4. "Arguments heard. It is not denied that goods were destroyed/disposed of under the orders of the Magistrate. Therefore, interim bail is confirmed."

5. ' The State moved the High Court for cancellation of bail under section 497(5), Cr. P. C. And the same having been cancelled through an elaborate order, leave to appeal has now been sought.

6. Learned counsel has contended that bail granted by the trial Court could not be cancelled under section 497(5) by the High Court after nearly 5 months; that the trial Court should have been approached in the first instance; that the recovery of the misappropriated articles, could not be considered as a valid ground for cancellation of pre-arrest bail; that on merits it was not a fit case for interference with the discretion exercised by the trial Court in granting the pre-arrest bail.

7. There is no rigid rule regarding the period whereafter bail should not be cancelled. It might become relevant in some cases but no hard and fast rule can be laid. It depends upon the circumstances of each case. In a given case notwithstanding long passage of time after the grant of bail, the circumstances might justify the cancellation not only on ground of propriety but alternatively on the ground of it being duty under the law. Ascendance and/or otherwise misuse of the concession can be examples for the former. While an Illegal order of bail or total lack of awareness of the facts and/or the law involved are examples for the latter.

8. Similarly it is not in all cases that the Court granting bail is to be approached in the first instance for cancellation under section 497(5), Cr. P. C. The learned Judge in the High Court has after taking due note of the case law cited before him, has correctly understood, applied and distinguished the relevant rulings. It may be observed that in some cases further wastage of time in moving the lower Court (when time factor is prima facie involved), would be an additional reason for not making direction for moving the lower Court in the first instance. In this case there was ample justification in this behalf.

9. The last two arguments can be considered together. The possible recovery of stolen or misappropriated articles or articles used in the commission of the crime amongst other types of recovery, can be a good ground for cancellation of bail. There is no bar of propriety or law in this behalf. In this behalf it is the duty, amongst others, of the Court granting rearrests bail to examine the question whether such an action would not frustrate the investigation vis-a-vis various factors including the relevant recovery. If the order granting pre-arrest bail by the trial Court is silent about it, the presumption would be that it was not conscious about the same.

10. In this case not only that the learned trial Judge was unaware of this aspect of the case but also the order shows lack of awareness of the basic law about the pre-arrest bail as distinguished from the bail after arrest. The Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts from time to time are satisfied, the most essential of them all being that the intended arrest would be tainted with mala fides which must be specifically stated. It is in this context also that the other condition of irreparable loss is to be viewed. Learned counsel appearing before us did not mention any fact to suggest that the arrest in this case would be mala fide. The High Court indeed was fully justified to interfere with the illegal order brought before it for scrutiny.

11. ' A copy of this judgment shall be sent to the learned trial Judge who passed the order impugned before the High Court so that he should further study the law on question of pre-arrest bail.