' KHALIL-UR-REHMAN RAMDAY, J.---This matter relates to the grant of bail to one Naseem Malik who is a person accused of the alleged commission of offences punishable, inter alias under sections 419/420/468/417/477-A and 109 of Pakistan Penal Code as also for the alleged commission of an offence punishable under section 5 ofthe Prevention of Corruption Act, 1947, vide F.I.R. No, 18, dated 29-1-2002 of Police Station F.I.A., Lahore.
2. As per the said F.! R. It had been alleged that information had reached the F.I.A. Authorities that a gang comprising of persons belonging to Karachi, Islamabad, Lahore and Gujranwala was involved in fraudulently preparing false bank documents and consequently withdrawing huge amounts of money from different banks on the strength of the said forged documents. On 28-1-2002 Inspector Saleem Sadiq complainant of the above mentioned F.I.R. Claimed to have received secret information that the members of this gang had fabricated a false M.T. Relating to above five crores of rupees allegedly issued by the National Bank of Pakistan in Karachi; that the said M.T. Had been sent to the Main Branch of the said bank at Lahore; that for cheating the said bank a fake bank account had been opened in the Main Branch of the N.B.P., Lahore in the name of one Asim Shehzad and that in a day or so the said gang would try to withdraw the said amount of about Rupees five crores from the said branch of the said bank. It had been further alleged that the concerned officers of this branch of the National Bank were alerted and a police party had also been deputed in and around the said Branch to frustrate the said attempt and to catch the culprits. The complainant-Inspector had added that on 29-1-2002, five persons riding on two motor cars bearing Registration No,LXL-595 and LXY-475 reached the said branch at about 10-30 a.m.; that the said motor cars were parked outside the said bank; that one person alighting from motor car No,LXY-475 entered the said bank at which the Branch Manager was again alerted; that the said individual presented a cheque for encashment on which he was checked and interrogated who disclosed that his real name was Rehman and that he had opened a bogus Account bearing No,17-11665-2 in the said branch in the name of one Asim Shehzad with the help of Malik Muhammad Naseem, Proprietor of Naseem International Steel of Naulakha Bazar, Lahore (the accused in question) and Mian Ishfaq, resident of Rehman Pura, Ichhra, Lahore and further that with the assistance and connivance of his other companions, namely, Sagheer Ali, Zafar Hussain and an employee of N.B.P., Karachi, namely, Arshad Ali, they had fabricated a false M.T. For an amount of Rs,4,90,00,000 which M.T. Had been sent to the Main Branch of N.B.P., Lahore and that he had now come to the said bank to withdraw Rs,4,86,00,000. This Rehman had further divulged that his co-accused, namely, Naseem Malik, Malik Ishfaq and Zafar Hussain were sitting in the motor cars outside to get their respective shares in the amount in question. On disclosure of these facts the complainant Inspector and his teammates succeeded in apprehending Sagbeer Ali and Zafar Hussain who were sitting in the above mentioned motor car bearing Registration No,LXY-475 while their other companionsavailable in the other motor car bearing Registration No,LXL-595 managed to slip away.
3. Naseem Malik accused then approached the Special Court (Offences in Banks) Lahore, with a petition' for his admission to pre-arrest bail and was consequently granted interim pre-arrest bail through an order dated 27-2-2002 which interim bail was later confirmed.
4. It was while dealing with post-arrest bail application of Sagheer Ali accused bearing Criminal Miscellaneous No,292-B of 2002 that a learned Division Bench of the Lahore High Court issued a suo motu notice to Naseem Malik accused to show cause why the pre-arrest bail granted to him by the learned Special Court (Offences in Banks) be not re-called. The matter of grant of bail to Sagheer accused and the matter of cancellation of pre-arrest to Naseem Malik accused were finally decided by the Lahore High Court through an order dated 7-8-2002. The bail plea of Sagheer accused was dismissed while the pre-arrest bail granted to Naseem Malik accused was re-called..
The reasons, inter alia, which had weighed with the Honourable High Court in reaching the said conclusions are available in para.6 of the said order dated 7-8-2002 which are reproduced hereunder for ready reference:-- "6. The material shown to us during the course of hearing, if left unrebutted does show the implication of both Sagheer and Nasim in the offences. Statement of Anees Rajput the Manager of the Money Changing Firm directly implicates these two accused. They were also found waiting outside the bank for encashment of the cheque. The forged M.T. Prepared is in the huge amount of around Rs,5 Crore. It was sheer good luck of the bank that it was not deprived of that much of the amount. The essential element of the pre-arrest bail viz. Mala fides of the police has neither been alleged nor shown to exist. There is no reason at all for false implication of these two accused."
5. After re-call of his said pre-arrest bail Naseem Malik accused approached this Court through Criminal Petition for Leave to Appeal No,678-L of 2002 which was filed in this Court on 21-8-2002.
This petition was accompanied by a Criminal Miscellaneous Application No,62-L of 2002 praying for grant of interim pre-arrest bail to Naseem Malik accused pending disposal of Criminal Petition for, Leave to Appeal No,678-L of 2002. This application was dismissed through an order of this Court dated 23-8-2002 and the prayer for admitting Naseem Malik accused to interim pre-arrest bail was thus refused.
6. When Criminal Petition for Leave to Appeal No,678-L. Of 2002 came up before us on 25-2-2003, Dr. Sohail Akhtar, Advocate Supreme Court prayed for permission to withdrawal of the said petition, we wereinformed that Naseem Malik accused had, in the meantime and during the pendency of his bail petition before this Court, allegedly surrendered to custody and had thereafter secured his release on bail after arrest from the Special Court (Offences in Banks) at Lahore. Through our order passed on the said date, we directed the learned counsel for the petitioner to place on record all the documents relating to the grant of said bail to Naseem Malik accused. We also issued notice to the learned Deputy Attorney-General to assist us alongwith the record. We further directed the personal appearance of Naseem Malik accused before this Court on the next date of hearing i.e, on 6-3-2003.
7. Naseem Malik accused is present in person with Mr. Masood Mirza, Advocate Supreme Court and Dr. Sohail Akhtar, Advocate Supreme Court. The learned Deputy Attorney-General is also present alongwith a representative of the F.I.A. With record.
8. What emerges from the record is that after refusal of the interim pre-arrest bail liy this Court on 23-8-2002, Naseem Malik accused allegedly surrendered before the learned Court of first instancei.e, the Special Court (Offences in Banks) Lahore, on 16-9-2002. Within two days thereof i.e, on 18-9-2002 he submitted an application before the Special Court (Offences in Banks) Lahore, for grant of bail after arrest in which notice was issued to the State for 27-9-2002 on which date the learned Judge presiding over the said Special Court directed release of Naseem Malik accused on bail.
9. Being not pleased, at least prima facie with the manner in which Naseem Malik accused had secured his release on bail, we issued notice to him to show cause why the said bail granted to him by the learned Special Court be not re-called.
10. The two learned Advocates Supreme Court representing the said accused have been heard at some length. The learned Deputy Attorney-General has also been heard. Record perused.
11. The release of Naseem Malik accused on bail is open to serious exception for more than one reasons. Firstly, because this bail had been secured from the learned trial Court by withholding the information regarding the pendency of his bail plea before this Court as the bail petition dated 18- 9-2002 filed before the said learned Court makes no mention of the fact that his application for grant of bail was still pending with this Court. Secondly, because while re-calling the pre-arrest to the said accused by the Special Court, the High Court had, besides holding that no case of mala fides had been made out, also found that Naseem Malik accused did not deserve grant of bail even on the merits of the case as would appear from para.6 of the High Court order which has been reproduced above. A finding of the Special Court to thecontrary through its bail granting order dated 27-9-2002 was thus an improper exercise of power.
12. It was argued by the learned counsel for Naseem Malik accused that after his arrest on 16-9- 2002 Naseem Malik accused was taken by the Investigating Officer to the Manager of the Money Changing Firm, namely, Anees Rajput on 24-9-2002 i.e, after notice had been issued to the State in the bail application before the learned Special Court and only three days before the application had been allowed and that on the said date the said Anees Rajput had allegedly declared that the person who had been brought before him was not the person who had come to him on 28-1-2002 alongwith Shehzad and Sagheer accused and that this was the reason which had weighed with to learned Special Court in releasing the accused on bail.
13. Naseem Malik accused stands specifically named and not just named but in fact comprehensively described in the F.I.R. As one of the conspirators and preparators of the crime in question. It was Rehman accused who, after his arrest from the bank had mentioned the said accused, amongst others, as his collaborators. Needless to mention here that the statement of an accused can be validly taken into consideration while deciding the fate of such-like matters. Para 6 of the High Court order dated 7-8-2002 clearly states, inter alia, that the statement made by the Manager of Money Changing Firm, namely, Anees Rajput during the course of investigation directly implicated Naseem Malik accused, amongst others. It appears that it was after the High Court had cancelled the pre-arrest bail of Naseem Malik accused and after he had allegedly surrendered to the custody that the tables got completely turned and in spite of the fact that above mentioned Anees Rajput already stood interrogated by the Investigating Officer and in spite of the fact that Naseem Malik accused had remained available to the Investigating Officer for investigation purpose ever since 27-2-2002, he was allegedly taken to Anees Rajput on 24-9-2002 i.e, 4 days after the filing of his post-arrest bail application before the Special Court and three days before the grant of bail to him by the Special Court and it was a miraculous happening at this crucial juncture that this Anees Rajput took a complete somersault and allegedly refused to identify Naseem Malik accused as the one who had come to him on 28-1-2002. This exercise on the part of the Investigating Officer appears, at least prima facie, to ,be an attempt to oblige Naseem Malik accused.
14. It has been repeatedly held by the Courts of law including this Court that the Courts are not bound by the stance taken by the Investigating Officer while dealing with the criminal matters. The position allegedly taken by the Investigating Officer before the Special Court on 27-9-2002 was not, again prima facie, believable on the face ofit. The learned Special Court never questioned the Investigating Officer about the earlier statement of Anees Rajput nor did the learned Court take the said earlier statement into consideration. The learned Presiding Officer of the Special Court also did not ask the Investigating Officer as to why Naseem Malik accused had not been taken to Anees Rajput for more than seven months i.e, till three days before the decision of the bail application and what was it which had necessitated and in fact compelled the Investigating Officer to rush the said accused to the said witness, namely, Anees Rajput on 27-9-2002. It was not only the Investigating Officer who had taken a complete 'U' turn but it was even the learned Special Prosecutor who underwent a similar change as he also declared that no incriminating material was available with the prosecution against Naseem Malik accused which was a concession not supported by record.
15. The fact that Naseem Malik accused had approached the learned Special Court for his release on bail while his bail petition was pending disposal before this Court; the fact that while so approaching the learned Special Court, Naseem Malik accused withheld information of the pendency of his bail petition before this Court; the fact that the learned Subordinate Court ignored the findings of the Honourable High Court that Naseem Malik accused was not entitled to the grant of bail even on merits of the case; the fact that in granting bail to the said accused the learned trial Court had acted contrary to the conclusions reached by the Honourable High Court and that also on the basis of the stance taken by the Investigating Officer which was seriously questionable and was open to serious exception and finally the fact that in reaching such a conclusion the learned Court of first instance had omitted to take notice of the fact that the accused in question stood named in the F.I.R. Against whom the statement of Anees Rajput already existed on record and who had not been declared innocent by the Investigating Officer, lead us to the irresistible conclusion that Naseem Malik accused had secured his release on bail by grossly abusing the process of Court.
16. In these circumstances, we shall be failing in our obligation to do complete justice if Naseem Malik accused was permitted to continue to enjoy the fruits of such an ill-gotten gain.
17. Resultantly, we set aside the order of the Special Court (Offences in Banks) Lahore, dated 27-9- 2002 whereby Naseem Malik, accused was directed to be released on bail after arrest in the above' mentioned case. Consequently, the said to him is cancelled and he is directed to be taken into custody.
18. In this view of the matter, Criminal Petition for Leave to AppealNo,678-L of 2002 has become infructuous which is accordingly disposed of.
Bail cancelled.