' KHAWAJA MUHAMMAD SAEED, J.---This petition for leave to appeal is directed against the order of the High Court dated 4-11-2003.
2. Relevant facts culminating into the present petition, briefly stated, are that the respondent, Ehtesab Bireau, blamed the present' petitioners as the employees of the Co-operative Bank in their capacity as Manager and Sub-Inspectors for the embezzlement of Government amount to the tune of Rs.10,00,000. Tie petitioners, in order to avoid their arres, by the Ehtesab Bureau, obtained the inlerin pre-arrest bail order from the High Court which was fixed for confirmation on 810-2003.
The Ehtesab Bureau was directed by the High. Court to appear alongwitl the relevant record before the. Cont. On the aforementioned date but in spite of repeated calls nobody turned up on behalf of the Ehtesab Bureau on 8-10-20)3. Even the record relating to the petitioners was not furnished to the Court, as such the learned Judge felt it appropriate o pass the following order:-- "This case was called for five times, but nobody is present on behalf of the non-petitioners which shows their lack of interest, therefore, the interim bail allowed to the petitioners is not confirmed."
3. On 3-12-2003 an application seeking cancellation of bail granted to the petitioners was moved under section 497(.5) of the Criminal Procedure Code by the learned Chief Prosecutor Ehtesab Bureau. This application under directions of the learned Chief Justice of the High Court was placed for hearing before the same learned Judge on 4-12-2003, who had confirmed the interim bail of the petitioners. The learned Judge of the High Court issued notice to the petitioners for appearance on 15th January, 2004. This order of the high court was challenged by the petitioners before this court on two-fold grounds. Firstly that the order of the High Court whereby their bail was confirmed on 8- 10-2003 was an appealable order. As no appeal, was filed within the prescribed period of limitation before this Court, therefore, the same has attained finality, as such, the application moved for the cancellation of their bail was incompetent under law and liable to be rejected; and secondly that the learned Judge in the High Court without taking into consideration the correct proposition of law wrongly issued notices for appearance to the petitioners. No other ground was raised by the petitioners before this Court.
4. Ch. Muhammad Azam Khan, the learned counsel for the petitioners, argued Ong on 8-10-2003, the case was called five times by the learned Judge in the High Court which was fixed for appropriate orders in respect of interim pre-arrest bail previously allowed to the petitioners but nobody turned up on behalf of the Ehtesab Bureau. Even the record relating to the case of the petitioners was not produced before the High Court for its perusal. Resultantly the High Court confirmed the bail of the petitioners. According to him, the bail is not intended to be punitive. Its purpose is to secure the attendance of the accused person at the time of hearing of the case against him. There is no allegation against his clients that they are avoiding their trial. He further argued that the application moved by the Ehtesab Bureau was liable to be rejected as the same was moved without the sanction of the Government as laid down by this Court in case titled.
Ehtesab Bureau v. Ch. Abdul Razzaq and others decided on 4-12-2003 (2004 YLR 1446), therefore, there was no justification to entertain the application moved under section 497(5), Cr.P.C.
Alternatively he argued that as his clients were admitted to bail under section 498, Cr.P.C., therefore, the application under section 497(5), Cr. P.C. For the cancellation of bail was not justi fied.
This provision of law could be invoked only against such a person who was iI.l the custody of the State agency and was subsequently released on bail by the Court the present case his clients were admitted to pre-arrest bail. They were never arrested, as such, the provisions for the cancellation of bail contained in subsection (5) of section 497, Cr.P.C. Were not applicabhe to their case. It was further argued that tho learned Chief Prosecutor of the Ehtesab Bureau could seek the indulgence of ,he Courts .Only in such matters, which are specifically entrusted to him by the Chairman of the Ehtesab Bureau. In the present case the application moved by the Chief Prosecutor for the cancellation of bail is not appended with any such document showing that he was authorized by the Chairman Ehtesab Bureau to file the same before the High Court, therefore, even from this angle there was no justification for the High Court to issue notices to his clients.
5. Conversely Mr. S.A. Mehmood Saddozai, the learned Chief Prosecutor, Ehtesab Bureau, argued that this petition for leave to appeal is barred by limitation, as such, without entering into the merits of the case the same is liable to be dismissed summarily on this sole ground. He further argued that section 498, Cr.P.C. Is subsidiary and ancillary to section 497, Cr.P.C., therefore, the restriction imposed in section 497 alongwith the proviso contained therein equally apply to the High Court and the Sessions Court, when dealing with bail matters under section 498, Cr.P.C. According to him mere this fact that a person was admitted to bail pre-arrest does not debar the Courts from canceling the bail of such person who in the opinion of the Court has violated the terms of bail. The learned counsel relied upon different authorities in support of his contention whereby the bail allowed to an accused person was recalled at a subsequent stage. These authorities need' not be discussed in this order for the reasons, which we shall record in the later part of this order. He strenuously argued that the matter relating to the sanction of Government or entrustment of the case to him by the Chairman, Ehtesab Bureau for moving application for cancellation of bail may not be allowed to be raised from the other side as these points were not raised in the petition for leave to appeal.
6. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. Before attending the merits of this case firstly we would like to attend the question of limitation raised by the learned Chief Prosecutor, Ehtesab Bureau. In the present case the limitation available to the petitioners was 30 days which period was to expire on 4-1-2004. On 3-1-2004 petitioner No.2 moved an application before the High Court for obtaining the attested copies of the impugned order and other documents as the same were the mandatory requirement of the Azad Jammu and Kashmir Supreme Court Rules, 1978. Copies were provided to him on 5-1-2004. If the period spent in obtaining the attested copies of these documents is excluded then the petition for leave to appeal filed by Raja Nasim is well within time.
7. Now coming to the merits of the case, before, attending the moot points raised in this case, let us make it clear that the orders relating to the liberty of the citizens are not passed in routine. Any person against whom a case is registered with the Law Enforcing Agency of the State can seek the concession of bail from the competent Courts. The Courts are expected to exercise their jurisdiction with due care and caution by carefully taking into consideration the material collected against such accused person alongwith the relevant provisions of law as laid down in sections 496, 497 and 498, Cr.P.C. We, therefore, e.Gree with the learned Chief Prosecutor of the Ehtesab Bureau that the provisions contained in section 498 are subsidiary and ancillary to section 497, Cr.P.C.
Therefore, while passing any order under section 498, Cr.P.C., the Sessions Court or the High Court is bound to look into the restrictions contained in the provisos to section 497, Cr.P.C. The mere fact that any person accused of an offence for which punishment of death, life imprisonment or imprisonment exceeding 10 years can be recorded, would not be sufficient to deprive such person from his liberty. The Courts have to consider reasonable grounds at a higher pedestal than mere suspicion and allegation before depriving an accused person from his liberty. Therefore, if reasonable grounds are not available and the grounds which exist, need further investigation and inquiry into the guilt of such person, then the case will fall under section 497(2), Cr.P.C. In which bail cannot be withheld as of punishment. If a person is admitted to pre-arrest bail at an earlier stage of investigation and later on the material connecting accused person with alleged offence becomes available to the prosecution, the indulgence of the Court can be craved for the cancellation of bail under section 497(5), Cr.P.C. An application before the trial Court can be moved even for the cancellation of bail if the case is one where the concession of bail allowed to an accused person by the Sessions Judge or the High Court is violated by accused person in any manner. For example if he without any justification absents himself from the Court on the date fixed in the case for further proceedings or on account of his illegal acts he is blamed for tampering with evidence against him. We, therefore, found no merit in the submission of the learned counsel for the petitioners that after allowing pre-arrest bail the High Court had lost the jurisdictional competence to entertain the application seeking cancellation of bail of the petitioners.
8. The learned counsel for the petitioners had requested that two grounds raised by him during the course of his arguments may be resolved. Firstly that as the application for cancellation of bail was moved without the prior sanction of the Government, therefore, this application was liable to be rejected without entering into the merits of the case in the light of the judgment of this Court titled Ehtesab Bureau v. Ch. Abdul Razzaq and others, decided on 4-12-2003. The relevant observations appearing at page 13 of the judgment read as under:-- "12. It may also be stated that the Ehtesab Bureau of AJ&K in accordance with rule 2(1) and rule 47 of the AJ&K Rules of Business, 1985, read with Serial No.14 of Schedule 1 of the said Rules, is an attached department of the Law, Justice and Parliamentary Affairs Department of Azad Government of the State of Jammu and Kashmir. An appeal on behalf of the Ehtesab Bureau could not be filed without the prior approval/sanction of the Government. The instant appeal even on this score is also not maintainable."
9. This question was not raised by him in his petition for leave to appeal. Even subsequently no application was moved by the petitioner seeking permission to raise this point through amendment under Order XIX, rule 6 of the Supreme Court Rules, 1978. Only such questions can be allowed to be raised for decision before the Court, which are pleaded in petition or concise statement. We have repeatedly laid down that if a party wants to raise any new point which was not pleaded in the memorandum of petition, appeal or the concise statement, it may move an application for the permission of the Court to raise such point and after permission such party shall be entitled to incorporate that point in its concise statement so that the other party may also get a chance to file additional concise statement to such extent. But this point was neither pleaded in the petition for leave to appeal nor any such application was moved by the petitioners seeking permission to raise this point, therefore, in order to have consistency in the application of law it is not felt appropriate by us to allow him to raise this point at the stage of arguments. He may raise this point before the High Court in the light of Ch. Abdul Razzaq's case. His second point was that the Chairman, Ehtesab Bureau had not directed the Chief Prosecutor to file application for the cancellation of bail of the accused petitioners before the High Court, therefore, the application moved by him was not legally maintainable. As this point was also not raised in his petition for leave to appeal, therefore, we refuse to resolve this point even in this order. This point shall be resolved in some other case where its decision shall be imperative for the just resolution of the controversy.
10. The learned Chief Prosecutor, Ehtesab Bureau submitted that under section 47 of the Ehtesab Bureau Act, 2001 (hereinafter to be referred as the Act of 2001), it is laid down that Ehtesab Bureau shall be a special institution of the Law, Justice and Parliamentary Affairs Department. In the same way he also relied upon Schedule 1 of the Rules of. Business, 1985, in which the Legislative Assembly, Supreme Court, High Court, Shariat Court. Election Commission, Service Tribunal and the Ehtesab Bureau have been entered as special institutions. He, therefore, submitted that the law was not properly followed while deciding Ch. Abdul Razzaq's case. He, therefore, craved that the view taken, by us, in the aforementioned case may be reviewed.
11. Before proceeding further it appears appropriate to reproduce the relevant provisions referred to by the learned Chief Prosecutor. Section 47 of the Act of 2001, reads as under:-- "SpecialInstitutions:---For the purposes of this Act and the Rules of Business, 1985, the Ehtesab Bureau shall be a special institution of the Law, Justice and Parliamentary Affairs Department."
12. Under Schedule 1 of the Rules of Business, 1985, in the list of special institutions the Ehtesab Bureau has been mentioned at Serial No.10(vii). There are some institutions which are the creation of the provisions of Interim Constitution Act whereas some other institutions like Ehtesab Bureau, have been created through the Act of the Assembly. Whether such institutions which are created under the Act of the Assembly are also special institutions like Supreme Court, High Court, Legislative Assembly, Service Tribunal and Election Commission, which have been established to meet the requirement of the Constitution Act is a question which shall be resolved in a case when and where such question shall be raised. Presently we admit, as has been rightly argued by the learned Chief Prosecutor of the Ehtesab Bureau, that the administrative control of all special institutions exclusively vests in the head of such institutions as is mentioned in Schedule IX of the Rules of Business, which need not be reproduced in this order. But it cannot be ignored that under rule 47 of the Rules of Business, 1985, no doubt the special institutions and autonomous bodies are the independent organs in the sphere of their functions assigned to them under the relevant law but , for administrative and financial purposes, all such special institutions are attached department of the Law, Justice and Parliamentary Affairs Department of Azad Jammu and Kashmir.
13. A criminal revision titled Justice Syed Hussain Mazhar Kalim v. Chief Justice Azad Jammu and Kashmir Shariat Court, (No.7 of 2002), was filed before this Court by one of the learned Judges of the Shariat Court in which he arrayed in the line of respondents the learned Chief Justice of the High Court/Shariat Court. The High Court sent the case to the Law Department to arrange prosecution on behalf of the High Court/Shariat Court before this Court. In furtherance to the demand made, the Government engaged Mr. Abdul Rashid Abbasi, a learned Senior Member from local bar to defend the orders of the High Court/Shariat Court before this Court. The culminating effect of the aforementioned provisions would be that even though the special institutions have the exclusive jurisdiction in the sphere of their functions assigned to them under the relevant law but they cannot indulge in the matters out side the spheres of the relevant law without the sanction of the Government. So the litigation in respect of any matter in any Court is an extraneous matter not falling within the purview of the relevant law, therefore, the Ehtesab Bureau cannot indulge in litigation before the superior forums like High Court and the Supreme Court in respect of any matter having penal consequences without sanction of the Government, therefore, view expressed by us in Abdul Razzaq's case is correct which need no interference by us. An elaborate decision on this question of law shall be given When and where the same shall be imperative.
In view of the above, this petition for leave to appeal having no merit is dismissed.