' KHAWAJA MUHAMMAD SHARIF, J.---This order shall dispose of Criminal Miscellaneous No,4574- CB/07 (Muhammad Asad Salcem v. Mst. Saloomi Rana) and Cr1. Misc. No,3375-B/07 (Zeeshan Bhatti v. State) as they arise out of the same F.I.R. No, 576/2006 dated 27-12-2006 under sections 408/109, P.P.C., Police Station Samanabad, Lahore.
2. Mr. Muhammad Ahsan Bhoon, Advocate for the petitioner in Cr1. Misc. No,3375-B/07 (Zeeshan Bhatti v. State) submits that the petitioner has falsely been implicated in this case; that the amount in question- was deposited in the account of Mst. Saloomi Rana, she withdrew the same and the petitioner Zeeshan Bhatti has nothing to do with the said amount because he never took the said cheque, one Muhammad Aslam "deposited the said in the bank and that the offence does not fall within the prohibitory clause of section 497(1), Cr.P.C. Learned counsel, while advancing his arguments further submits that not only on merits but the petitioner is also entitled to bail on the medical ground. According to him, the medical report received from the Services Hospital is to the effect that the petitioner is the patient of extreme degree of general weakness, has been advised to continue with -the treatment already given to him and in case of backache he may be referred to Orthopedic Surgeon and that 'petitioner's case is also covered by first proviso to section 497(1)
Cr.P.C. And is entitled to bail on the medical ground as well.
3. The learned Additional Advocate General Punjab Ch. Muhammad Hanif Khatana assisted by the learned Assistant Prosecutor General Punjab and complainant's learned counsel, submits that the petitioner Zeeshan Bhatti is named in the F.I.R.; that he is the husband of respondent Saloomi Rana to whom notice for cancellation of her bail was issued; that the amount involved in this case is rupees fifty lac which is a big amount; that the grant of bail is a discretionary relief which cannot be granted as a matter of right even in the cases which do not fall within the prohibitory clause of section 497(1) Cr . P. C .
4. Ch. Arshad Mehmood, Advocate for the complainant, while opposing bail after arrest of the petitioner in Crl. Misc. No,3375-B/07 (Zeeshan Bhatti v. State), in addition to the above contentions, contends that the petitioner was employee of the complainant; that he was given the cheque of Rs,50,000,00 which was of cash amount; that he did not turn up and received a telephonic calls in the office of the complainant that his (Zeeshan Bhatti)'s wife and sister-in-law had met an accident and he will come in the office after 2/3 days; that thereafter, the complainant came to know that the cheque in question had been deposited in the account of respondent Saloomi Rana who withdrew the same; that in such like circumstances grant of bail is not a rule; that the petitioner in Crl. Misc. No,3375-B/07 (Zeeshan Bhatti v. State) is also involved in many other criminal cases along with his wife Saloomi Rana respondent in Crl. Misc. No,4574-CB/07 (Muhammad Asad Saleem v. Mst. Saloomi Rana) and that he is not, entitled to bail; in support of the above submissions, learned counsel for the petitioner/complainant has relied on the precedent case law reported-in 2003 SCM R 573, 2002 SCM R 422, 1997 SCM R 278, PLD 1997 SC 545, 2006 M LD 403, 2006 PCr.LJ 584, 2003 M LD 125, 1999 PCr.LJ 1384, PLD 1999 SC 504 and 2005 PCr.LJ 1797.
5. Syed Tahir Abbas Rizvi, Assistant Prosecutor General assisted by learned counsel for the petitioner in Cri. Misc. No,4574-CB/07 (Muhammad Asad Salem v. Mst. Saloomi Rana) submits that respondent Saloomi Rana was allowed bail before arrest by the learned Additional Sessions Judge Lahore, bail cancellation petition was moved before this Court in which many notices were issued for appearance/representation of the respondent Saloomi Rana but she did not appear, ultimately her bail was cancelled passing a detailed order, the said order was challenged before the august Supreme Court of Pakistan in Crl. P. No,160/2007 (Mst. Saloomi Rana v. Muhammad Asad Saleem etc.), it was decided by the learned Full Bench of the Honorable Supreme Court of Pakistan vide order dated 4-6-2007 and her bail was cancelled, she was taken into custody, but, surprisingly, she was produced before the learned Duty Judicial Magistrate 1st Class, Model Town, Lahore (Mr. Shahzib Dar), who, vide order dated 5-6-2007 without going through the order Of the apex Court of the country and treating it to be a bailable offence, granted bail to the respondent within a span of twenty four hours. While advancing the arguments, it was further contended that the respondent Saloomi Rana has misused the concession of bail, the learned Magistrate was only a Duty while the learned llaqa Magistrate (Mr. Muhammad Younis Awan) was on one day leave; that the learned Duty Judicial Magistrate 1st Class, Model Town, Lahore (Mr. Shahzib Dar) has violated the dictum laid down by the august Supreme Court of Pakistan in Zubair's case (PLD 1986 SC 173); that the respondent Saloomi Rana deliberately avoided service of the process issued by this Court; that recovery of rupees fifty lac has yet to. Be recovered and that in the peculiar facts and circumstances of this case, her bail may be cancelled.
6. While defending the ing order of the learned Duty Judicial Magistrate Ist Class, Model Town, Lahore. (Mr. Shahziz Dar) passed in favour of respondent Saloomi Rana, her learned counsel Ch. Imran Masood, Advocate, submits that as far as respondent Saloomi Rana is concerned according to the recent amendment made in the relevant provisions of law, the offence alleged against her is a bailable one which offence even does not fall within the prohibitory clause of section 497(1)
Cr.P.C.; that the respondent was allowed bail by the learned Judicial Magistrate and the remedy to file a bail cancellation petition or a revision petition was available with the learned Additional Sessions Judge and they could not have filed this bail cancellation petition directly before this Court, so, this bail cancellation petition is not maintainable before this Court and is liable to be dismissed. Adds that so far as involvement of the respondent Saloomi Rana in other criminal cases is concerned, she was acquitted in two cases and only one case is pending and on that ground her bail cannot be cancelled. He has placed reliance on 2003 YLR. 1911, 1990 PCr.LJ 1186, 2005 M LD 942, PLD 1973 Lahore 874, 1991 M LD 518, 1985 PSC 689, PLD 1989 Supreme Court 585, 2004 PCr.LJ 996 and PLD 1973 SC 478.
7. I have heard learned counsel for the parties at a great length, have given anxious consideration to their submissions and have also gone through the precedent case law cited at the bar. First of all I would like to take up Crl. Misc. No,3375-B/07 (Zeeshan Bhatti v. State) which was moved before this Court on merits as well as on medical ground. So far as grant of bail on the medical ground is concerned, reliance was placed by the learned counsel for the petitioner on a medical certificate issued by the Medical Officer, District Jail, Lahore dated 3-5- 2007 (at page 11 of Crl, Misc. No,3375- E1/07 (Zeeshan Bhatti v. State), wherein, it was opined as under:-- "It is submitted that I examined the above said prisoner. He complains of Palpitation Breathlessness and pain on the left side of the chest (ischemic Heart disease).
8. "He is also suffering from Heamaturia (Blood in Urine) and pus in urine. He also complains of pain in both the loins (Kidney area). He is suffering from multiple diseases and needs specialized investigation and expert management in a well equipped Institutions, facilities for which are not available in jail Hospital".
9. In order to reach at a just decision of the case, I had constituted two Boards of Doctors i.e, one from Punjab Institute of Cardiology Lahore and the other from the Medical Superintendent of Services Hospital Lahore. The relevant portion of the report submitted by the Punjab Institute of Cardiology Lahore dated 8-6-2007 is to the following effect:- "No Cardiac problem. Acute Anxiety State. Needs: Tab Xanax 0.5 BD; when require"
10. A report was also received from the Medical Superintendent Services Hospital Lahore dated 22- 6-2007 which reads as under:- ............ The reports of advised tests are within normal limits. He is advised to continue the treatment already advised. However, if his backache does not settle in few days, he may be referred to Orthopedic Surgeon".
11. In view of the above medical reports of two renowned hospitals' of the Province, the argument for the grant of bail on the medical ground has no force because it is settled by now by the Superior Courts of the country including the apex Court that until and unless the disease is not life threatening, accused cannot be enlarged on bail. So far as grant of bail on merit is concerned, allegation against the petitioner Zeeshan Bhatti is that he along with his wife respondent Saloomi Rana usurped rupees fifty lac because he was employee of the complainant, he gave him a cheque of the above said amount for its encashment from the. Bank, he did not turn up for 2/3 days, it was informed to the complainant that his (Zeeshan Bhatti)'s wife and sister had met- an accident and ultimately the complainant came to know that the said cheque was deposited in the account of respondent Saloomi Rana which amount was accordingly withdrawn by her. It is correct that the grant of bail in cases not falling Within the prohibitory clause of section 497(1) Cr.P.C. Is a rule and refusal is an exception but I am of the, prima facie, view that it is a case which fails within exceptions 'because both of them i.e, Zeeshan Bhatti petitioner in Crl. Misc. No,3375-B/07 (Zeeshan Bhatti v. State) and B respondent Saloomi Rana in Crl. Misc. No,4574-CB/07 (Muhammad Asad Saleem v. Mst. Saloomi Rana) are husband and wife, who in connivance with each other have caused a damage of huge amount of rupees fifty lac which' big amount has yet to be recovered. In this regard reliance is 'placed on Muhammad Siddique v. Imtiaz Begum and .2 others (2002 SCM R 442) wherein the august Supreme Court of Pakistan was pleased to observe that bail in non- bailable offences cannot be claimed as a matter of right even through the same do not fall within the 'prohibitory clause of section 497(1), Cr.P.C., so, Crl. Misc. No,3375-B/07 (Zeeshan Bhatti v. State) has - no merit and is accordingly dismissed.
11. Now I would like to take .Up the case of respondent Saloomi Rana in Crl. Misc. No,4574-CB/07 (Muhammad Asad Saleem v. Mst Saloomi Rana). I am sorry to say that Duty Judicial Magistrate Ist Class, Model Town, Lahore (Mr. Shazib Dar) did not accept the request of the police for the' grant of ten days physical remand 'of' respondent Saloomi Rana notwithstanding the fact that it was very much mentioned in the said request that her bail was cancelled by the august Supreme Court of Pakistan, he, even did not bother to go through the said bail cancellation order of the apex Court of the country and granted bail to respondent Saloomi Rana within a span of 24 hours. He was the Duty Magistrate, the learned llaqa Magistrate (Mr. Muhammad Younis Awan) was on one day's leave, he could have waited for him in view of the dictum laid down by the Honorable. Supreme Court of Pakistan in Zubair's case (PLD 1986 SC 173), wherein, it was held that application of the co- accused should be decided by the same learned Court. In my view, he has violated the said judgment of the apex Court of the country. He even did not take pain to see that a huge amount of rupees fifty lac is yet to be recovered but throwing behind all the principles settled by the apex Court of the country, the order of the august Supreme Court of Pakistan whereby her bail was cancelled and the law settled in Zubair's case (PLD 1986 SC 173), he granted bail to respondent Saloomi Rana for reasons best known to him i.e, Duty Judicial Magistrate Ist Class, Model Town, Lahore (Mr. Shazib Dar). It is imperative to quote relevant portion of the order of the august Supreme Court of Pakistan passed in Crl. P. No,160/2007 (Mst. Saloomi Rana v. Muhammad Asad Saleem etc.), wherein, vide order, dated 4-6-2007, while cancelling bail of the respondent Saloomi Rana, Full Bench of the apex Court (consisting of three Honorable Judges) was pleased to observe as under:-- " During the course of hearing whereof it transpired that a cheque worth Rs,50,00,000 was deposited by her husband, the co-accused in her within mentioned bank account being operated solely by her, which she personally withdrew from the bank the very next day at the counter, whereof has been vouched by the bank official and has been admitted by her learned counsel at the rostrum stating that it was done at the instance of her husband, the co-accused with whom she has estranged relationship".
12. It is very important to note here that in the bail cancellation petition i.e, Cr1. Misc. No,4574-CB/07 (Muhammad Asad Saleem v. Mst. Saloomi Rana) an affidavit. Has been placed on record by the complainant but no counter affidavit has been filed by the respondent or on her behalf to rebut the allegations levelled in the said affidavit, meaning thereby, that those contents of the affidavit remained un-rebutted and accepted by the respondent. It was argued by the learned counsel for the respondent Saloomi Rana that during the existence of remedy to file a bail cancellation petition/revision before the learned Court of Sessions, bail cancellation petition before this Court was not . Maintainable. This argument has no force due to earlier attitude of the respondent Saloomi Rana in not coining to this Court although she was summoned many a times and ultimately her bail was cancelled. The precedent case law relied upon by the learned counsel for the respondent Saloomi Rana is distinguishable from the facts and 'circumstances of the case in hand and is not applicable in this case.
13. In view of the above resume of facts and law this Court has come to the conclusion that respondent Saloomi Rana is not entitled to the discretionary relief of bail, the ing order passed by Duty Judicial Magistrate Ist Class, Model Town, Lahore (Mr. Shazib Dar) dated 5-6-2007 is hereby recalled, her bail is cancelled, respondent Saloomi Rana is present in Court and shall be taken into custody.
Bail cancelled. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.