' The petitioner was an Ambassador of Pakistan accredited to the United Arab Republic at Cairo. He filed Writ Petition No, 1296/77 saying that a case has been registered against him for mala fide reasons and the proceedings be declared as without lawful' authority. The petition was admitted by my learned brother Mr. Justice Zakiu4din Pal. The learned Standing Counsel for the respondents Nos. 1 and 2 was directed to obtain para-wise comments within a week. Along with writ petition, a Civil Miscellaneous Application No,. 1 of 1977 under sections 497 and 498, Cr. P. C. Was filed for grant of anticipatory bail in which notice was issued to the respondents for today, viz. 30-6-1977 and meanwhile the petitioner was allowed pre-arrest bail on interim basis. As my learned brother is on leave today, the case has been marked by My Lord Chief Justice, to this Court.
3. A copy of F. I. R. No, 7 dated 25-4-1977 has been produced by the learned Advocate-General showing that a case under section 409/420/468/471/ 109, P. P. C. And 5(2) of Prevention of Corruption Act, 1947 has been registered against the petitioner. Learned counsel for the petitioner has reiterated that the case has been registered against the petitioner for mala fide reasons and these have not yet been denied by filing a written statement in spite of direction by the Court dated 20-6-1977. He has, next, contended as he had contended at the preliminary hearing previously, that the charges of misappropriation of Government Funds etc. Are not well based because the funds had not been in the direct custody of the petitioner and that being so, he could not be involved in such cases. Learned counsel has further elaborated that the charges against the petitioner are that the petitioner has been responsible for administrative and financial irregularities which came to the notice of the Foreign office on inspection and audit. Learned counsel submits that the matters are of accounting and public record and the presence of the petitioner in custody is not necessary, rather, his being outside would help in ascertainment of disbursement, expenditure and accounting.
3. The learned Advocate-General has submitted that the present civil miscellaneous application for bail in the writ petition is incompetent uncle'. Article 199 of the Constitution, therefore, the same is liable to be dismissed. He has, next, contended that the petitioner should have applied for bail before the learned Sessions Judge in the first instance who has concurrent jurisdiction and therefore, his present application before this Court is incompetent. He has referred to Shabeehul Hassan and another v. The State (1). Nasir-ud-Din Shah and another v. The State (2), Ghulam Haider v. The State (3). The learned Advocate-General has also contended that the petitioner is charged with offences, including an offence under section 409, P. P. C. Which carries a maximum sententce of life imprisonment, therfore, the petitioner is not entitled to bail under section 497, Cr. P.
C. Unless it were to be shown that there are no reasonable grounds to believe that the petitioner is liabe for the offence carrying the aforesaid sentence. Learned counsel has submitted that the provisions of section 498, Cr. P. C. Are subsidiary and ancillary to the provisions of Section 497, and therefore, under the former provision i,e, section 498, Cr. P. C. The petitioner is not entitled to bail.
The learned Advocate-General has, finally, submitted that the investigation is virtually complete and the case is going to be submitted in Court within the next ten or fifteen days.
3. After hearing the learned counsel for the parties it appears to me that the matter in hand is one of confirming or non-confirming anticipatory bail earlier granted to the petitioner by my learned brother Mr. Justice Zakiuddin Pal on 20-6-77. The application was, no doubt, filed in the writ petition referred to above but it was expressly filed under sections 497, and 498, Cr. P. C. Therefore the objection of the learned Advocate-General that the application is incompetent for having been filed with the writ petition is really making a fetish of technicality because the application was under sections 497 and 498, Cr. P. C. And if it had been detached from the writ petition there could.
Have been no objection. Therefore, the application has to be determined on its own merits under the relevant
(1) PLD 1970 Kar. 57 (2) PLD 1963 Lah. 516
(3) 1971 P Cr. L J 117 ' provisions of sections 497, and 498, Cr. P. C. A perusal of the F. I. R. Produced by the learned Advocate-General would show that the allegations against the petitioners are that he has been responsible for certain administrative and financial irregularities which had come to the notice of the Foreign Office on inspection and audit objections. These relate to financial matters ,4 and banking accounts. Naturally, the petitioner would be in a position to explain the allegations if he is free to refer to the record and the accounts. Consequently his custody is not essential. It is established law that bail is not to be withheld as a matter of punishment but for the purposes cf ensuring that an accused is available when put to trial. The petitioner through his learned counsel has given an undertaking that he has no intention of avoiding to stand his trial rather he has said with some vehemence that he would like to clear his name and reputation when he is put to trial.
Moreover, his two passports, one private and the other diplomatic, have already been taken in possession by the D. I.-G. Of F. I. A. Consequently, absconsion of the petitioner from the clutches of law is out of question. The fact that the petitioner had not moved the learned Sessions Judge in the first instance is really not very important at this stage when he had earlier applied for bail in this Court and was granted interim bail and the matter has also been heard at length in the B presence of the learned counsel for the parties. As regards the objection that one of the offences carries a maximum sentence of life imprisonment and the petitioner is not to be released on bail unless there are no reasonable grounds to believe that he is guilty of such an offence per section 497, Cr.
P. C., it is to be seen that the application is under the latest law on the point, i,e, section 498-A, Cr. P.
C. Which lays down that a petitioner may be released on bail if he is present in Court or a case has been registered against 'trim. The learned Advocate-General had referred to Muhammad Ayub v.
Muhammad Yaqub and another (1) to contend that the provisions of section 498, Cr. P. C. Are subsidiary and ancillary to section 497, Cr. P. C. And therefore, the same embargo shall be applicable. It is to be seen in this context that the matter has, again, been referred to the Full Court of the learned Supreme Court of Pakistan in a subsequent case. Moreover, in the circumstances of the present case, it cannot be presumed at this stage that the petitioner will be liable to the maximum sentence and it is established law that if a petitioner is not liable to the maximum sentence in the circumstances of a case, the bar under section 497, Cr. P. C. Is not applicable.
4. As stated above the allegations against the petitioner are regarding financial irregularities and would require accounting and sifting of facts. It has been stated by the learned Advocate-General that the investigation has been completed and the case is ready for being put in Court within the next ten to fifteen days. If the petition has this period at his disposal he would be in a position to explain the allegations by pointing out the D relevant record and the accounts of which he is aware and thus th investigation too would be more comprehensive and exhaustive. He woul of course, assist the investigating agency wherever called upon, as he is bound under the law. Since the case is to be put up to trial before a Court within next ten to fifteen days, as stated by the learned Advocate-General, E there is rio compelling reason in the circumstances of the case not to coal= the bail earlier granted to the petitioner on 20-6-1977.
(1) PLD 1966 SC 1003 ' In view of what has been stated above, bail earlier granted to the petitioner on 20-6-1977 is hereby confirmed.
' The learned Advocate-General has submitted that Mr. Mohammad Nawaz Aulaf, Director, F. I. A.
Investigating Officer undertakes that he would get the goods/luggage of Syed Ahmad Saeed Kirmani, ex-Ambassador of Pakistan to Cairo released from the Customs authorities where those are and this would serve the purpose of the applicant seeking return of the passports in the aforementioned application.
2. Learned counsel for the applicant stated that he accepts the undertaking and does not press this application at this stage.
3. In view of the statements of the learned counsel for the parties, this application is disposed of on the above-mentioned undertakin.