' Through the instant petition filed under Section 497(5), Cr.P.C., the petitioner seeks cancellation of post arrest bail granted to Respondent No, 2 in terms of order dated 27.02.2016 by the learned Judge, Special Court-II (Offences in Banks), Punjab, Lahore, in case FIR No, 528, dated 12.11.2015, offence under Section 406, PPC, registered with Police Station, Qila Didar Singh, District Gujranwala.
2. Prosecution story, in brief, as per contents of the crime report is that . The petitioner being proprietor of Aqeel Rice Mills procured a loan of Rs,3,37,50,000/- from HBL, Qilla Dedar Singh Branch after pledging a stock of rice. On 03.11.2015, the petitioner took keys of the godown from the godown supervisor namely Liaqat Ali under the pretext of taking sample and subsequently by committing criminal breach of trust he misappropriated the same. Hence, the instant case has been registered.
3. Learned counsel representing HBL/petitioner (complainant) While initiating ,.His arguments submits that Muhammad Asif Aqeal/Responderit No, 2 preferred Crl. Misc. No, 25867-B/2015 seeking pre-arrest bail, which was declined by this Court in terms of order dated 03.02.2016 while touching upon the merits of the case and thereafter the respondent filed petition seeking post arrest bail before the learned trial Court which was allowed vide order dated 27.02.2016 just after the elapse of twenty days of declining of his pre-arrest bail by this Court in complete disregard to the law and the principles enunciated by the Superior Courts of the country from time to time on the subject. It is argued that once the pre-arrest bail of the respondent was declined by this Court while touching upon the merits of the case, the learned trial Court seized with the matter was not competent to allow the post arrest bail while ignoring the observations rendered by this Court. It is contended that the order of the learned trial Court is in complete derogation of Section 5/6 of Offences in respect of Banks (Special Courts) Ordinance, 1984. In such circumstances, learned counsel for the petitioner submits that the order passed by the learned trial Court is not sustainable and as such the same deserves to be set aside.
4. The learned Deputy Attorney General has supported the contentions raised by learned counsel for the petitioner and has argued that the order passed by the learned trial Court is in total disregard to the facts and circumstances of the instant case and the same is not sustainable under the law.
5. On the other hand, learned counsel representing Respondent No, 2 has opposed the petition with vehemence. It is argued by learned counsel for the respondent that in fact sufficient time has elapsed and charge has already been framed by the learned trial Court, therefore, in the given circumstances, though the order is defective, but direction for early disposal of the case would be in proportionate to the dictates of Justice.
6. We have heard arguments advanced pro and contra and also gone through the record available on file.
7. Admittedly pre-arrest bail petition of the respondent bearing Crl. Misc. No, 25867-B/2015 was declined by this Court in terms of order dated 03.02.2016 through an exhaustive order while touching upon the merits of the case. The accusation against the petitioner is that he along with his real brother/co-accused managed to embezzle 9200 sacks of rice, pledged with HBL, Qilla Dedar Singh Branch, from where they obtained a loan of Rs, 3,37,50,000/-. The whole prosecution case rings around the Respondent No, 2 who in other words is the sole proprietor who has deprived the public institution from huge amount of Rs,3,37,50,000/- by committing criminal breach of trust.
The conduct of Respondent No, 2 cannot be assented especially when he was granted bail by the learned trial Court in a slipshod manner without adverting to the real facts and circumstances of the instant case. Learned trial. Court has altogether ignored the observations of this Court while granting post arrest bail just after twenty days. Such like cases are in rampant now a days wherein the exchequer of Government has been looted in a very brutal manner, which require to be dealt with iron hands. If such like matters are dealt with leniency, it might create further chaos in the society causing further miseries to the public-at-large. In a salutary judgment reported as Dost Muhammad Versus Anwar and 5 others (1993 P.Cr.LJ. 714) (Lahore) it has been held that if the appellate Court dismissed the pre-arrest bail petition of an accused while touching upon the merits of the case, the trial Court is precluded from granting him post arrest bail. In the cited case law, it has been held as follows: "----S. 497/498--If pre-arrest bail had been disallowed on account of non-fulfilment of the requirement of malice, only the grant of bail after arrest on merits by a lower Court would perhaps be not in violation of any command of law or propriety, but if a superior Court has dismissed a pre- arrest bail petition on merits then of course the lower Courts shall stand precluded from accepting the post-arrest bail petition of the said accused persons".
In a similar situation, the august Supreme Court of Pakistan while handing down a salutary judgment in the case titled as Muhammad Ilyas, Chief Manager/Attorney, Allied Bank Ltd. Versus Shahid Ullah and others (PLD 2009 Supreme Court 446), while recalling the order passed by the learned trial Court in a case of Offences in respect of Banks (Special Courts) Ordinance, 1984, has observed as under:- "...S. 497 (5)--Penal Code (XLV of 1860), Ss. 409, 468 & 471--Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Sched. & Ss. 5(6) & 12--Constitution of Pakistan (1973), Art. 185(3)-- Petition for cancellation of bail--Considerations for recalling the order granting bail--Accused along with his co-accused, prima facie, were involved under Ss. 409, 468 & 471, P.P.C. Being scheduled offences of Offences in Respect of Banks (Special Courts) Ordinance, 1984--Sentences prescribed, under Ss. 409, 468 & 471 for the purposes of Offences in Respect of Banks (Special Courts) Ordinance, 1984 had been modified, which the High Court nor the lower Court had taken note of--Material placed on record was sufficient to prima facie, hold that involvement of accused persons at the present stage under Ss. 409, 468 & 471, P.P.C. Could not be overruled--Section 6(7), Offences in Respect of Banks (Special Courts) Ordinance, 1984 provided that the accused, if at all released on bail, the amount of bail shall be fixed having regard to the gravity of the charge, against such person, and where the charge specified any amount in respect of which the offence was alleged to have been committed, shall not be less than the said amount--If order of granting bail was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice or if the Court had come to the conclusion that same was perverse on the face of it, or had been passed in violation of law then the same could be recalled--In the present case, the prosecution had produced convincing evidence to hold that the accused were involved, prima facie, in the commission of the offence, where an amount of Rs,60 lac had been misappropriated by committing the criminal breach of trust by a Banker with the connivance of the co-accused and they also committed forgery or the purpose of cheating etc.--Accused, therefore, in terms of S. 5(7) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 were not entitled for grant of bail on furnishing surety bonds--Supreme Court observed that it could have exercised its discretion to uphold the order of bail granted by the High Court to the accused but on having gone through the different aspects of the case, it was . Concluded that it was not the case wherein such discretion was to be exercised, in favour of such person, who being a Banker and being custodian of public property, dared to cause loss to it with the connivance/assistance of another outsider-- Supreme Court converted the petition for leave to appeal into appeal and allowed--Concession of bail granted to the accused persons were set aside and both the accused, who were present in the Court, were ordered to be taken in custody forthwith".
8. Keeping in view all the facts and circumstances of the instant case and the amount being huge in nature, we are. Of the considered opinion that the learned trial Court has passed the order in disregard to the established principles of law. Hence, this Court is persuaded to accept this petition.
Resultantly, the same is allowed. The Bail granting order dated 27.02.2016 passed by the learned trial Court is recalled.