' This second bail application filed this time direct in the High Court seeks the release of the petitioners on bail. The petitioner Muhammad Tariq Khan alias Tariq Jan was working as the Executive Officer Contonment Zhob but when he was relieved of his duties on transfer a report was lodged on 15-12-1984 in the Police Station Zhob (F.I.R. 103 of 1984) by one Major Furgan Ali on behalf of the Garrision Commandant Zhob and in persuance thereof he was arrested the same day. The allegations contained in the F.I.R. Are that during the course of handing/taking over the charge of Contonment Executive Officer misappropriation and embezzlement has been detected and in spite of the fact that Mr. Tariq has been relieved majority of the files are still in his possession. Javed Afzal is an Upper Division Clerk in the office. It was apprehended that relevant record would be subjected to mutilation or destruction by these two persons(the petitioners herein). It was further alleged in the report that the petitioners have deprived the Government of a large amount by resorting to illegal, improper method of selling/leasing out the Government property.
2. An application for the release on bail moved before the Special Judge Anti-Corruption Baluchistan was rejected on 23-12-1984 and the prosecution was given "a chance to complete the investigation and recover the relevant record in possession of the accused". The application moved thereafter in the High Court was also rejected on 2-1-1985. While rejecting the bail application my learned brother, Muhammad Jaffar Nairn, J. Then observed "the petitioners have been involved in misappropriation of huge amount of money and it appears that their modus operendi was to auction the plots for higher amount and show lesser amount in the lease deed and for that instances have been quoted by A.A.-G.". Now the investigation has been completed and whatever record was found relevant for the case has been taken into possession by the investigating agency and the accused/petitioners are in judicial lock-up at Zhob but no challan could be filed so for as according to the investigating agency a final report is to be submitted to the appropriate Government they have to take a decision whether the accused are to be prosecuted in a Court of law or only the departmental action would be taken against the accused persons.
3. The present second application was filed in the High Court on 26-1-1985. The learned counsel for the petitioners has complained that the petitioner No,1 is a very Senior Officer of the Government of Pakistan and was arrested very hastily only to be humiliated in utter disregard of the Government instructions and the procedure prescribed for the arrest of the public servants. It has been submitted by the learned counsel for the petitioners that from the material evidence collected during the investigation no case of criminal misappropriation at all is made out and that the trial of the case does not appear to be in sight. Admittedly the trial cannot proceed unless the sanction therefore is accorded by the appropriate Government and for that purpose the case has to be processed by a Committee to be appointed in this behalf which has to consider the entire evidence collected against the accused in order to come to a decision if the prosecution would be necessary. The possibility of prosecution being dropped cannot be ruled out. He has therefore submitted that it would be against the interest of justice if the petitioners are allowed to stay in judicial lock-up for considerable time without being put on trial.
4. Before I consider the merits of the bail application I have to consider a preliminary objection raised by the learned Advocate-General that the previous bail application having been rejected by the High Court this application is not maintainable and if the application for bail is at all to be filed the same should have been made before the Special Judge. The objection is not tenable as the order disposing of the bail application is not a judgment and the application for bail can be repeated on fresh grounds. See Gulzar Hassan Shah v. Ghulam Murtaza silo 4 others PLD 1970 SC 330 .
' The learned counsel for the petitioners has drawn my attention to the observations made by my learned brother Muhammad Jaffar Naim, J. Quoted above and has submitted that this expression of opinion is likely to be pressed against the petitioner and in these special 'ircumstances the application has been moved in the High Court. No doubt it is the ordinary practice that the Court where the trial is to be held should have been moved first but where an expression of opinion touching the merits of the case are made by a Court the trial Court is not expected to ignore it and is likely to be influeced by that opinion. The High Court in such circumstances can be moved but only as an exception to the general rule. I am, therefore, of the view that the bail application can be certainly entertained by the High Court on fresh grounds and there is no bar to my entertaining this application. The objection of the A.-G. Is therefore repelled.
The previous bail application was moved at a time when the investigation was in progress and the learned Assistant Advocate-General was successful in persuading the Hon'ble Judge in the High Court that the "instances have been collected on the basis whereof the misappropriation of huge money had been found out". Now the investigation has been completed and the case is likely to be processed on the basis thereof for the consideration of the Government whether the sanction for the prosecution is to be accorded in this case. I asked the learned Advocate (now appearing for the State) to place the material collected by the investigating agency and state the case of the prosecution against the accused persons. The learned Advocate-General stated the prosecution case in the words which are reproduced:- "That the prosecution allegations against the accused are that they had auctioned plots of Cantonment Zhob to various parties at a higher amount but while executing lease agreements with said auction bidders inserted less amount as auction price and thereby manipulated to take undue advantage and deprived the Cantonment Board Zhob (Government) of large amount which it was entitled to recover as lease money. The accused as civil servants had dominion over to property of the Government and utilized their position to their personal advantage to the detriment of Cantonment Board and thus committed breach of trust. Besides the said accused having manipulated lease agreement mentioning less amount than actual auction bid fraudulently and dishonestly were using these documents as proper and genuine. (409-471, P.P.C.)."
I therefore considered the statements of the persons who have been favoured with the lease agreements but none of them have said in their statements recorded under section 161, Cr.P.C. That they have paid more amount than the amount mentioned in the lease agreements. None of the prosecution witnesses has come forward with any allegation that any excess amount has been received by the accused persons over and above the amount shown in the agreements. The accused persons in these circumstances may be found guilty of dishonourable conduct and the provisions of section 418, P.P.C. May be found attracted but in the face of facts as found the ingredients of criminal misappropriation cannot be said to have been made out. An offence under section 409, P.P.C. Pre-supposes an entrustment and the essential condition of the criminal breach of trust is that a trust of some kind must have been made. It is doubtful if in the circumstances of the case the ingredients of offence punishable under section 409, P.P.C. Are made out. On the completion of the investigation therefore facts other than those stated alleged by the A.A.-G.
Before my learned brother (who had previously rejected the bail application) have now come to light and these are the fresh grounds which entitle the petitioners to prefer this second bail application in the High Court.
5. I am not unmindful of the rule that in the exercise of discretion for grant or refusal of bail the Court should not go into the merits of the case and give a finding thereon. The scope of exercise of such power extends only to find out a prima facie case to ascertain whether reasonable grounds exist to believe that the petitioners are not guilty of an offence punishable in the nature provided for in subsection (1) of section 497, Cr.P.C. There can always be fouDd the cases of exceptional nature in which bail may be granted notwithstanding the limitations imposed by section 497, Cr.P.C. As laid down by the Supreme Court in Khalid Saigal's case PLD 1962 SC 495 that when a Court is called upon to exercise his judicial discretion it will not be discharging its function properly if it were to proceed upon a prior assumption that in all cases where an offence punishable with death or transportation for life is alleged bail as a matter of course be refused nor there can be any rule of practice upon the basis of which such a discretion shall be judicially exercised for rarely will there be two cases in which the facts are alike. To act upon a rule of practice, may therefore, well constitute an arbitrary exercise of a discretionary power, for the exercise of a discretion vested by law in a Court must be upon a sound judicial principles after taking into account the facts and circumstances of each case. The nature of the accusation and the heineousness of the offence alleged, are no doubt very relevant considerations to be taken into consideration but by themselves they are not the only considerations and a Court must depend upon the facts and circumstances of each case. I may add and I say so with respect that the prosecution should not be allowed to dominate the field. It is the duty of the Court to see that neither the prosecution nor the defence is hampered and that the state does not get a free hand and .The accused persons locked-up for months and months together and the investigating agency allowed to proceed leisurely. The principle which guides the Court in the exercise of its jurisdiction is the probability of the accused appearing to take the trial. Since the entire record relevant for the prosecution has already been taken into possession and there is no suggestion by the State that the accused person in any way can influence the prosecution witnesses. The petitioner Muhammad Tariq has already been transferred and relieved of his duties. I am persuaded to entertain this bail application for the reasons given above and exercise the discretion in favour of the accused. I would therefore admit the accused/petitioners to bail. The accused shall be released on bail if they furnish security in the sum of Rs,50,000 (Rupees fifty thousand) with one surety and P.R. In the same amount to the satisfaction of the Assistant Commissioner, Zhob.
6. I had passed an order on 6-2-1985 and had allowed bail with an observation that reasons for the bail will be recorded later on. The above are the reasons for that short order.