M/s Malik Muhammad Riaz and Rashid Qureshi hereinafter referred to as the respondents are owner and manager, respectively, of a Compressed Natural Gas outlet situated at Shama Chowk Sargodha under the name and style of Toheed CNG. The officials of Sui Northern Gas Pipeline Ltd. on suspicion, raided the outlet on 3.01.2013 and removed the Gas Meter which was sealed and transmitted to the concerned laboratory while observing codal formalities. This exercise was under taken in the presence of respondent No.1. According to the technical report Gas Meter seals were found tempered to commit theft of gas. It is in this backdrop that on the application of Usman Habib Manager, Sui Northern Gas Pipeline Ltd. a case vide FIR No. 133, dated 13.04.2013 under Sections 462(c), registered with Police Station Sajid Shaheed Sargodha was registered; section 462-e PPC was added on 10.06.2013 vide case diary No.13. Loss to the public exchequer was estimated as Rs.5,40,20,000/- on the basis of gas pilferage spreading over 208 days.
2. Confronted with this situation, respondent No.1 filed a civil suit on 22.03.2013 seeking a declaration alongwith consequential relief in terms of an injunction against the deptt. On criminal side, the respondents secured bail in anticipation to their arrest; they were admitted to ad-interim pre- arrest bail on 20.04.2013 which was confirmed by a learned Additional Sessions Judge at Sargodha vide order dated 18.06.2013. The State filed present petition for cancellation of bail which came up before a learned Judge in Chamber on 19.08.2013 who issued notices to the respondents for 10.09.2013; ever since 10.09.2013 this matter is lingering on for one reason or another.
3. Learned Prosecutor General contends that there existed sufficient evidence which prima facie connected the respondents with the crime alleged against them and as such there was no occasion for the learned Additional Sessions Judge to extend judicial protection to the respondents by granting them pre-arrest bail which is an extra ordinary relief designed to protect innocent people facing false charges.
4. On the contrary, learned counsel for respondents has vehemently defended the impugned order contending that it is very late in the day to recall pre-arrest bail as report 173 Cr.P.C has already been submitted in the trial Court. By making a reference to the civil Suit referred to above, it is argued that the respondents were rightly granted pre-arrest bail which cannot be recalled in the absence of strong and cogent grounds which are lacking according to learned counsel.
5. Heard.
6. Grant of pre-arrest bail is an extra ordinary relief to be granted only in an extra ordinary situation to protect innocent persons against victimization on trump up charges through abuse of process of law; it is suspension of usual course of law which is arrest in cognizable cases.
A person seeking judicial protection must establish that he is entitled to this relief in equity and that he would suffer irreparable humiliation in case this protection is denied to him. This view is being followed consistently since the advent of Hidyat Ullah Khan's case (PLD 1949 Lah.21). In the present case, no malice or malafide could be attributed either to the complainant who is a state functionary or to the police which acted on a departmental request wherein theft of a natural resource is alleged on the basis of technical and forensic evidence which cannot be summarily ignored. Reliance on a civil Suit filed by respondent No.1 by the learned Additional Sessions Judge is misconceived as it is a civil suit seeking a declaration simlicitor in respect of dues which respondent No.1 claims to have deposited; this has no nexus with the alleged theft nor offer any defence thereto. Reference to malafide on part of the complainant by the learned Additional Sessions Judge is illusionary to say the least. The impugned order being not in consonance with the law declared by the Superior Courts is far from being judicious and proceed on premises which cannot be attended to while examining the plea seeking pre-arrest bail as it is not a substitute for post arrest bail. In so far as plea raised by learned counsel for respondents about submission of report under 173 Cr.P.C and the present belated stage is concerned, mere flux of time cannot indemnify a wrong nor validate an order which is otherwise not sustainable in law. Interim orders reflect that respondents themselves are principal contributory to the delay that occurred in disposal of this petition; they cannot claim premium of their own conduct. Given the technical forensic evidence, prima facie framing the respondents with the charge coupled with the massive loss to the public exchequer san justification for the relief granted to the respondents.
7. Consequently, impugned order dated 18.06.2013 is suspended and pre-arrest bail granted to the respondents is recalled. Petition is allowed.