This is a petition for anticipatory bail in a case under section 468/409/471. P. P. C.
2. The case was registered at the instance of a Deputy Superintendent of Police on 17-5-1971.
According to the F. I. R., a copy of which has been placed on the record, the petitioners were responsible for removing copper conductor (wire). They were supposed to deposit the removed conductor. The weight removed and deposited conductor, according to the F. I. R., should have been 3,480 pounds; while the weight of the conductor deposited is 1,600 pounds only. Arif Raza Khan petitioner is Executive Engineer and, according to the F. I. R., the other two petitioners have misappropriated the conductor in collusion with the Executive Engineer. The value of the misappro- -priated conductor is stated to be Rs. 1,60,000.
3. The petitioners moved the learned Sessions Judge for anticipatory bail. They were allowed interim bail but on 5-6-1971, their application was dismissed with the following order:- "The present case was registered on 17.5-1971. It is mentioned in the F. I. R. That copper wire from three feeders was to be replaced by aluminium wire and the copper wire so removed were to be deposited in the WAPDA Store.
Note--While I was dictating this order. Arif Raza tried to slip away. It has been alleged in the F. I. R.
That copper wire weighing 3480.6 lbs. Were to be deposited in the store. Against it only 1600 lbs. Of copper wire of various sizes was deposited. It is alleged in the F. I. R. That the copper wire weighing 1880.6 valued at Rs. 1,80,000 had been misappropriated. The Investigating Officer has informed me that on further investigation it has come to light that 4800 lbs. Of copper wire valued at Rs. 4,00,000 has been embezzled by the present petitioners. He further informed me that when the offence was detected, the petitioners tried to commit forgery.
With these allegations I do not consider it a fit case for bail. I reject the bail application."
4. Learned counsel has raised the following contentions:-
(i) that the petitioners have produced some documents before the Police showing that there was no deficiency in so far as the deposited conductor was concerned. According to him, some of the documents are signed by responsible officers;
(ii) that no correct data was ever kept of the weight of the conductor and that the case has been registered on the basis of wrong estimates. In this connection, learned counsel further contended that a variation of five percent in weight is condonable;
(iii) that the petitioners have submitted their explanations before the higher authorities in the WAPDA and that till the decision by the authorities on these explanations either the case should not have been registered or, at least, they are entitled to bail;
(iv) that Arif Raza Khan petitioner took charge of the present post as Executive Engineer only three months prior to the registration of the case; therefore, he could not possibly be responsible for misappropriation.
(v) that the petitioners have been joining the investigation and there is no danger of their abscondence. Learned counsel has relied on Ch. Bashir v. The State PLD 1969 Pesh. 49.
5. On my enquiry from the S. D. O. As to whether he has any complaint or suspicion against anybody showing that he has been falsely implicated due to any enmity, he has replied in
6. The three petitioners sought and availed opportunity to address arguments in support of the contentions raised by their counsel. None of the petitioners has asserted that he or they are being proceeded against with any ulterior motives on the part of anybody or in order to harass them. It is no doubt asserted in the petition which is supported by an affidavit that the Police wants to arrest them and I have no reason to disbelieve this assertion. Two conditions for making petition for anticipatory bail are, therefore, undoubtedly satisfied. They are: that the Police wants to arrest the petitioners, and that they have surrendered to the custody of this Court. Although no allegation of enmity er ulterior motive has been made against anybody in respect of the threat of arrest by the Police yet I considered it necessary in the interest of justice to hear the learned counsel and the petitioners on the merits of the case.
7. Learned counsel for the petitioners throughout the arguments remained under the impression as if none of the offences alleged to have been committed by the petitioners is punishable with transportation for life. Section 409, P. P. C., provided transportation for life as punishment in similar language as provided in section 307, P. P. C. In respect of a case covered by section 307, P. P. C., their Lordships of the Supreme Court have, in case Salehon and others v. The State (PLD 1969 SC 267), held that it is within the prohibition contained in subsection (1) of section 497, Cr. P. C.
8. The first contention of the learned counsel, if considered in the light of the averments made in para. 4 of the petition, means only this much that the petitioners deposited some copper conductor wire against receipts/vouchers after preparing some inventories. This does not show that the deposited quantity was not less than the required quantity. Similarly, the fact that the petitioners have offered explanation to the higher WAPDA authorities or that they have produced some documents before the Police does not show that they have not misappropriated the copper wire. The contention based on the allegation of wrong estimates or variation of weight to the extent of five percent. Cannot be gone into in any detail at this stage. It is mentioned in the order of the learned Sessions Judge that the Investigating Officer who appeared before him informed "that on further investigation it has come to light that 4800 lbs. Of copper wire valued at Rs. 4,00,000 has been embezzled by the present petitioners. He further informed that when the offence was detected, the petitioners tried to commit forgery." In these circumstances, I do not find any force in any of the contentions raised by the learned counsel. The ruling in Bashir v. State cited by him does not apply to the circum--stances of this case and is of no help to the petitioners. It is not a fit case for bail before arrest. I do not find any merit in this petition and the same is dismissed in limine.
9. The petitioners surrendered to the custody of this Court before the commencement of the arguments in this case. The Police Guard of the High Court is directed to contact the Police authorities concerned and transfer this custody to them in accordance with law.
10. After I announced the order and gave the above direction, I noticed that the petitioners started moving towards the door of the Court room; on which I thought that they wanted to slip away. A note was made by the learned Sessions Judge in his order in respect of similar conduct of Arif Raza Khan petitioner. I, therefore, asked the learned counsel to tell his clients that it may not be proper for them to run away in this manner. On this though neither the petitioners nor the learned counsel appearing for them raised any objection, a learned counsel (Mr. Hassan Ahmad Khan Kanwar, Advocate) sitting in the Court room and waiting for his turn to come in another case, stood up and very politely pointed out to me that the direction given by me is not proper because of a Supreme Court ruling on the subject. He then brought to my notice the case of Sadiq Ali v. The State (PLD 1966 SC 589). It is the well-known case in which a learned Sessions Judge after having allowed interim anticipatory bail to an accused person issued notice to the Public Prosecutor, but on the day of final hearing of the case he refused to confirm the interim bail and rejected the application.
At the same time he ordered the accused to be remanded to Police custody and for that purpose directed his Court orderly to take charge of the accused who subsequently escaped from his custody and proceedings under section 224, P. P. C. Were started against him. In the judgment written by S. A. Rahman, 1., their Lordships came to the conclusion that the detention of the accused not being proper he could not be proceeded against under section 224, P. P. C., and consequently quashed the proceedings. It is clear from the facts of that case that the peti--tioner therein had already been allowed interim bail by the learned Sessions Judge and it was on rejection of his application that a fresh order for taking him into custody was passed. Their Lordships noticed that it was done without there being a request in that behalf by the Police itself, presumably meaning that there was no material before the Court to come to a conclu--sion that the Police wanted to arrest the petitioner in that case. The factum of ad interim bail was specifically noticed and it was observed that the proper course for the Sessions Judge was to first cancel the ad interim bail.
11. The present case is distinguishable; in that the petitioners in the very first instance in order that their petition be heard in limine surrendered to the custody of this Court and I felt satisfied that the Police wanted to arrest them. In other words, I was in no doubt that if the Police would have been present they would have arrested the petitioners. Before they could be allowed an interim bail their petition has been dismissed. They were not on interim bail and they being already in the custody of this Court, it is not a fresh order of their arrest. In the peculiar situation that this Court is placed, it is not possible to retain this custody for an indefinite period nor there is any arrangement with the High Court to keep the custody of the petitioners for any length of time. In these circumstances, of course, aid of the Police agency has to be sought and availed of for the purpose of maintaining the custody until an order of release of the accused person is passed. Actually this being a peculiar situation, I asked the learned counsel as to what would he suggest as a way in alternative if the custody of the petitioners is not transferred to the Police; to which one suggestion made was that the petitioners should be allowed interim bail so that they may go and surrender to the Police concerned. If on merits I did not consider it a fit case for bail, it will be an inconsistency if I allow them interim bail for the purpose of transfer of custody from the High Court to the Police. Learned counsel also suggested that if that cannot be done, the accused can be allowed to go wherever they like. This also is not possible because after they have surrend--ered to the custody of this Court and the Court having accepted the custody for the purpose of hearing the petition for anticipatory bail, permitting the accused to go out of the custody without any other order will create an anamolous position. I am with respect, of the opinion that their Lordships while deciding the case of Sadiq Ali, on the peculiar facts of that case, did not intend to lay down the law that in cases of anticipatory bail application, if the accused surrenders to the custody of the High Court, this custody cannot be transferred to the Police, in case of its dismissal in limine.
12. There is another aspect of the matter. In the case of Sadiq Ali, it was held that voluntary appearance before the Court by a person seeking anticipatory bail is covered by the expression "appears" in sections 496 and 497, Cr. P. C., meaning thereby that a person can just appear, of course voluntarily, before the High Court or the Court of Session to order to qualify his petition for anticipatory bail to be heard on merits. A direct consequence flowing therefrom could be that a person without surrendering to the custody of the Court may; by just appearance, seek the hearing of his application on merits: although this is not the situation in the present case. I was satisfied in the very beginning that the petitioners had surrendered to the custody of this Court. The law Laid down by their Lordships in Sadiq Ali's case in this behalf was, however, modified in the subsequent ruling in the case of Muhammad Ayub v. Muhammad Yaqub and another (P L D1966 SC 1003).
S. A. Rahman, J., who wrote the leading judgment, observed on page 1013 of the report as follows: "In Sadiq Ali's case, keeping the dictum of the Privy Council in view, I had expressed the opinion that the word `appears' need not be so confined. It is, however, pointed out by learned counsel for the respondent that with the adoption of this connotation of the word `appears' in the general dictionary sense, the result would be that section 498 itself would seem to become redundant. No statutory definition of the word `appears' is given in the Code and the question what precise meaning should attach to it is an open one. The word `Court' in sections 496 and 497, obviously include the Court of Session and the High Court. If by voluntary appearance, when the person concerned is under immediate apprehension of arrest, either under a warrant, issued by a subordinate Court or without warrant, by the Police, grant of bail becomes possible by order of the Court, without the Court being directly seized of the case, under section 497 there would appear to be no need to have recourse to section 498, at all. The argument has some force. On further reflection, therefore, I have come to the conclusion that the view in Sadiq Ali's case may require a little modifi--cation in so far as the word `appears' in sections 496 and 497, need not be construed to include voluntary appearance, even in circumstance of grave apprehension of arrest. This word may be taken to have been used in sections 496 and 497, fin the same sense as in section 242 or 252 of the Code which obviously contemplate appearance in answer to a process issued by a Court. This interpretation will have the merit of saving section 498 in its own right. The position that emerges then, would be that under sections 496 and 497, Criminal Procedure Code, the Court can bail out a person only, if he has been placed under actual custody or appears in answer to a process issued or is brought before the Court, presumably by the Police, or by some other arresting authority. In other words, these sections apply where there has been an actual arrest, attracting the Court's Jurisdiction or the Court is seized of the proceedings directly, in which bail is requested.
Section 498, however, would be called in aid, before the Court is not seized directly of the proceedings in question and where no actual arrest has been made so far but antici--patory bail is asked for, e.g., where the case is still at a stage of investigation by the Police or is pending in a subordinate Court. The power to grant such anticipatory bail would thus be confined to the High Court and the Court of Session and other Courts would be excluded from its scope".
The underlined observations are very significant. Obviously, the petitioners have not appeared before this Court in answer to any process issued against them nor have they been brought be-- fore this Court. The only third alternative is their actual surrender .So the custody of this Court in consequence of which this petition has been heard on merits. That being so, the petitioners being in actual fact, in the custody of this Court can and should be dealt with according to law by transferring that custody to the competent police authorities.
13. There is yet another aspect of the matter. When sections 497 and 498, Cr. P. C., were enacted, probably the framers of the Code did not clearly visualise anticipatory bail. It is, however, through precedent law which has now almost the force of statute law that a petition for anticipatory bail under section 498 read with section 497, Cr. P. C., can' competently be made. Some of the rulings are in the cases of Hidayat Ullah Khan v. The Crown (PLD 1949 Lah. 21), The Crown v. Khushi Muhammad (PLD 1953 FC 170) and the cases of Sadiq Ali and Muhammad Ayub already cited above. It is also probably for that reason that there is no provision in the Criminal Procedure Code parallel to section 65 thereof specifically empowering the Sessions Court and the High Court to arrest or direct the arrest of (in its presence and within its local jurisdiction) any person for whose arrest a Magistrate may be competent to issue a warrant. If a Magistrate can direct the arrest of a person present in Court, it is not possible to assume that the framers of the Code did not concede similar power to the Court of Session and to the High Court in the circumstances as of the present case; namely, when a person has surrendered to the Court and his bail application having been rejected he has further to be dealt with in accordance with law. I have been informed that there is no specific provision in the Code in that behalf either way. But that does not mean that the Court has no inherent power in such a situation. In a similar situation; I remember having dealt with a case before the Supreme Court. In an appeal against acquittal warrants of arrest, of course executable by the Police agencies, were directed to be issued against the respondents. An application on behalf of the accused-respondents was moved before the Supreme Court to the effect that on having learnt about that warrants they surrendered before the Supreme Court and that instead of sending them to custody they should be released on bail on grounds mentioned in the petition. The purpose of the application, it can be clearly visualised, was to pray for bail in anticipation of actual physical arrest, and in order that the application be heard and disposed of, the accused surrendered before the Supreme Court. The Supreme Court rejected the application and directed the accused-respondent to be taken into custody by the Police (in presence of their Lordships), I have mentioned these facts only to illustrate the proposition that in such like situation unless there is a specific statutory bar, it will be assumed that the Court has the necessary inherent power to deal with it. This supposition has the support, at least indirectly, of the Lahore High Court Rules and Orders, Vol. III, Chapter 10. Rule 14 reads as follows:- "14. If the person who has been released on bail is not arrested on the day of hearing, in accordance with para-- graph (11)(a), above, he will ordinarily be re-arrested in the High Court immediately judgment has been pronounced against him. Note No. (1) under this rule is also very significant. It reads as follows: '(1) The foregoing instructions will apply mutatis mutandis to the case of persons enlarged on bail by a Court of Session."
In somewhat similar context of inherent powers of Courts, I have had the occasion of making some comments in the cases Mst. Khadeja Begum v. The State (Criminal Revision No. 38 of 1969/BWP) and Universal Industries v. Muslim Commercial Bank (Civil Revision No. 57 of 1971).
14. Considering all the circumstances, I feel that the direction given by me in respect of the custody of the petitioners is valid in fact and law.
[Note--The unreported Supreme Court case, a reference to which has been made in the last but one paragraph of the above order, is Ghulam Rasul v. Allah Dad (Miscellaneous Petition No. 34 of 1963 in Criminal Petition for Special Leave to Appeal No. 10 of 1963).] 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.