These are three bail petitions, namely; Cr. Misc. Nos. 1527/13-71, 1606/13-71, and 1608/9-71, arising out of the same matter, therefore, they are being disposed of together.
2. Arif Raza, XEN, Khalid Rashid, S.D.O. And Muhammad Saleem, Line Superintendent, all employees of WAPDA are accused of offences under sections 218, 409, 468, 471, 477-A, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947, for having committed criminal breach of trust in respect of large quantities of Copper Conductor Wire (hereinafter called the wire) and also for offences of forgery for purpose of cheating, falsification of accounts and making of incorrect records. The case was registered against them on 17-5-1971 at the instance of a D. S. P. Who on being deputation is attached to WAPDA. The precise allegation is that the petitioners were required to replace old copper wire with aluminium wire in a vast area and the so removed copper wire was to be deposited in the WAPDA stores. Instead of depositing the entire standard copper wire in the Stores, they deposited different qualities of wire. At the stage of the F. I. R. The estimated value of the misappropriated wire was about Rs. 1,60,000, but during the investigation the police found that the value of the wire is much more and may be above Rs. 4,00,000.
2. Soon after the registration of the case the petitioners moved the learned Sessions Judge for anticipatory bail. They were granted interim bail, but by his order dated 5-6-1971, the learned Sessions Judge Lahore, who is also Senior Special Judge, dismissed the application on consideration of the merits of the case. The petitioners then moved this Court for anticipatory bail.
Their petition was dismissed by me in limine on 7-6-1971. 1 also decided the matter on merits after having noticed all the arguments advanced on behalf of the petitioners. The contention then raised briefly were, that no deficiency had been found, in so far as the deposited wire was concerned; that no correct data was ever kept; that the variation of weight to the extent of 5 % condonable under the rules; that the petitioners having submitted their explanations to the higher authorities, they were entitled to the bail till the decision of their explanations; that Arif Raza Khan, petitioner took charge of the present post only three months prior to the registration of the case; and that this being a case under section 409, P. P. C. Alleged to have been committed by public servants, on the authority of Ch. Bashir Ahmad v. The State (1) they were entitled to bail. On the question of possibility of false implication, I made some observations in the earlier order, which it is necessary to reproduce:- "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 the negative.
The three petitioners sought and availed of the opportunity to address arguments in support of the contentions raised (1) PLD 1969 Pesh. 49 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."
Khawaja Sultan Ahmad, the learned counsel for Arif Raza Khan, however, has stated that the said petitioner could not open his lips at that stage for sound reasons. In fact according to the learned counsel, the case against the said petitioner is due to the ill-will which the Director C & I bore against him, on account of the petitioner having conducted, an enquiry against two persons who were related to the Director; but the exact relationship the learned counsel did not know.
3. After arrest the petitioners were produced before the learned Assistant Commissioner, Lahore on 8 6-1971 and were remanded to police custody till 10-6-1971. An application for bail moved before the learned A. C. Was adjourned to 10-6-1971. On 10-6-1971 the D. S. P. By a written application, supported by reasons, sought remand of the accused to police custody for another five days. The learned A. C. Rejected the application and sent the accused to judicial lock-up. The bail application was adjourned to 11-6-1971, when the learned A. C. Was informed that an application had also been moved before the Special Judge (Central), therefore, he (A. C.) adjourned the matter to 12-6-1971.
The Special Judge (Central) rejected the application on 12-6-1971 on the ground; that he had no jurisdiction. This was noticed by the learned A. C. Who directed that the application for bail pending before him be presented before the Special Judge, (Provincial). The latter, however, by his order dated 14-6-1971, observed that he had no jurisdiction in the matter. On the same day, the learned A.
C. Granted interim bail to all the three petitioners till 21st of June 1971 without noticing in his order that the petition for bail, though anticipatory, had earlier been dismissed by the learned Sessions Judge and the High Court, on merits. It is now established that the learned A. C. Was informed about these orders, before he allowed the interim bail to the petitioners.
4. Arif Raza Khan had moved the learned Sessions Judge again on 12-6-1971 for bail and as explained by his counsel, the application was moved before the Sessions Judge in his capacity as Senior Special Judge; who had both the jurisdictions, as Central and Provincial Special Judge. This petition was dis--missed on merits on the same day. Arif Raza Khan, the peti--tioner failed to inform the learned A. C. On 14-6-1971 about the order passed by the Senior Special Judge on 12-6- 1971. He instead moved the High Court in Cr. Misc. No. 1527/B-71 for bail. When it came up before me in motion hearing, Khawaja Sultan Ahmad, the learned counsel for Arif Raza Khan stated that he had been informed that the petitioner had been released on bail by some Court, and that he had no further information, therefore, he was unable to pursue the bail petition filed by his client on 14- 6-1971. I directed the O. S. D. II to make enquiries in this behalf, who reported that Ch. Nazeer Ahmed, Assistant Commis--sioner, Lahore (Saddar) allowed interim bail. The records were summoned from the Court of the A. C. And the matter again came up before me on 16-6-1971 in the presence of Khawaja Sultan Ahmed and Mr. Muhammad Iqbal Bhatti, Advocates. After perusing the records carefully 1 issued notice to the State and the accused for considering the question of the validity or otherwise of the order passed by the learned A. C. On 10-6-1971 refusing the remand of the petitioners to the police custody and his order dated 14-6-1971 granting bail to them. As I was then under the impression that the learned A. C. Might have been mis--led or if he consciously passed some wrong orders he may, if the law permitted him and he also wanted to pass any legal order on the file, do so, during the pendency of the proceedings before the High Court. I, therefore, remarked in my order dated 16-6-1971, that, "if the learned Assistant Commissioner wants to pass any legal order in respect of the proceedings pending before him, this order shall not be a bar. On 18-6-1971, the case again came up before me in the presence of Ch. Nazeer Ahmad Khan and Mr. Muhammad Iqbal, Advocates, counsel for Khalid Rashid and Muhammad Saleem, petitioners, Khawaja Sultan Ahmed, Advocate, counsel, for Arif Raza Khan, petitioner, Mr. Kamal Mustafa Bokhary, Asstt. Advocate-General and the D.S.P. Incharge Investigation. The D.S.P. Made a categorical statement that the police wanted the remand of the petitioners to police custody and that the order passed by the learned A. C. Be set aside. The learned Asstt. Advocate-General adopted the statement of the D. S. P. As prayer by the State. He also vehemently argued that the order of the learned A. C. Granting bail to the petitioners was not only improper and bad on merits, but was also without jurisdiction and thus prayer for the cancellation of bail.
5. After hearing the matter at some length, Ch. Nazeer Ahmad Khan suggested that this Court should not pass any order till the learned A. C. Was able to finally consider the question of bail and that the matter should be adjourned till after 21-6-1971 Khawaja Sultan Ahmad opposed the suggestion. I, however, agreeing with Ch. Nazeer Ahmad Khan adjourned the case to 22-6-1971. The learned A. C. By his order dated 21-6-1971 cancelled the bail earlier granted by him. On the question of jurisdiction, he held that he had the jurisdiction to grant bail. It is interesting to note that in the earlier order granting interim bail, he was not at all conscious that he had jurisdiction to grant bail.
On the other hand, the order of the learner A. C. Indicates that he had doubts as to who had the jurisdiction in the matter. On merits, he observed, that he had bee kept in dark about the proceedings on the question of bail and therefore, relying on Amir Khan v. The State (1970 SCMR 789), he held that the petitioners having wilfully suppressed the relevant facts before him were not entitled to any assistance and thus he recalled hi order dated 14-6-1971.
6. Mr. Muhammad Iqbal Bhatti, Advocate who appeared before the learned A. C. Categorically stated before me that the learned A. C. Was informed about all the orders. Excepting the on passed by the Senior Special Judge on 12-6-1971. This is a collateral issue and I do not want to make any further comment as the decision in this petition does not entirely depend upon the question whether the petitioners, in any way, misled the learned A. C. It is, however, remarked that the learned A.C. For unexplained reasons, appears to have acted in an undue haste. The file of the case before the learned A. C. Shows that on the day that he sent the petitioners to judicial lock-up he recommended to the District Magistrate that, "Accused Arif Raza Khan is XEN whereas accused Khalid Rashid is S. D. O. And accused. Muhammad Saleem is Line Superintendent. In view of their social status, education etc.; they are accustomed to a superior mode of living, if approved, they may be given B Class". On the next day the recommendation was approved by the District.
Magistrate and on that very day the papers were received by the A. C. It is quite possible that the learned A. C. On 10-6-1971 thought that the accused including Muhammad Saleem, Line Superintendent being men of higher social status, they should be saved from usual police interrogation for a period of time which. Is otherwise normal for other accused in such like cases. (I have come across another case of similar nature in which another learned Magistrate at Lahore, in spite of there being no applica--tion from the police for remand of the accused to the custody of the police, insisted on remanding the accused to the police custody, because the theft of copper wire of almost of the same type was considered as a serious matter and question of recovery in such like cases afforded sufficient ground for remanding the accused to police custody). In granting bail to the petitioners, subsequently, the learned A. C. Without mentioning a single ground on merits as to why in an offence punishable with trans--portation for life he thought it fit to grant bail, in my view, appears to have been influenced, again, by the social status education etc." of the petitioners. In my order dated 16-6-1971 I had also noted (in Cr. Misc. 1527/B-71) that the language of the surety bonds and correction therein could lead to an impres--sion that the bonds were prepared before the order of bail was passed. It is necessary to remark in that behalf that the learned A. C. Is not responsible for what happened outside his Court and in what circumstances the surety bonds were so prepared. I will close this part of the case by the simple observation; that the learned A. C. Should in future, at least, try not to be miss-led and one way of doing so is not to act in haste; as, otherwise, such haste was neither required by law, nor warranted by facts of the case.
7. After the refusal by the learned A.C. The petitioners again moved this Court for bail in Cr. Misc. No. 1606/B-71 and Cr. Misc. No. 1608/B-71. All the learned counsel have addressed lengthy arguments.
The learned A. A. G, to start with, contended that the order of learned A. C. Dated 10-6-1971 should be set aside and the accused should be remanded to the police custody because valuable information has to be obtained from there by the police for the purpose of making some recoveries and also for the purpose of ascertaining as to where from the substituted wire, deposited by them in the stores, was procured by them. He also contended that there is the possibility of other culprits involved in the entire affair and the police had insufficient time to interrogate. In fact, according to him, if the nights and Court attendance is excluded, the entire period of remand to the police custody amounted to sixteen hours. He also contended that this Court has the power in revision to set aside the order of the learned A. C. And remand the accused to the police custody. Without contesting the position taken by the learned A. A. G. On the question of jurisdiction, the learned counsel for the accused vehemently contended that the learned Magistrate having once exercised the discretion in the matter, it has never been the practice of the High Court to interfere with such like orders and this case should not be treated as exceptional one. After some arguments on this question, the learned A. A. G. Did not press for the setting aside of the order of the learned A. C.
Dated 10-6-1971. In view of the statement made by the learned A. A G., I do not consider it necessary to deal with this aspect of the matter any further and the same is dropped.
8. Before dealing with the contentions of the learned counsel for the petitioners in support of the bail petitions it is necessary to mention that the police has produced before the Court two samples of copper wire one alleged to have been removed by the petitioners, which looks like a rope having several strands and the other a single strand wire, which amongst other is said to have been substituted and deposited in the stores. The police also produced record for my perusal and I went through some parts of its contents.
9. Ch. Nazeer Ahmad Khan, the learned counsel for the petitioners in Cr. Misc. No. 1608/B-71 has raised the conten--tions: (1) that there is a delay of 12 days in the registration of the case after the detection of the alleged crime; (2) that there has been no progress in the investigation, in so far as collection of evidence is concerned, in particular no material recovery has been made; (3) that the wire was removed from "long feeders" in borders areas. This, according to the learned counsel, was not original wire, because soon after 1965 War, repair was done with substitute wire, therefore, there is no proof with the police that the standard rope type copper wire was in fact removed; (4) that with regard to the length of wire deposited, according to his estimate there is no deficiency; (5) that the investigation of the police was not based on correct lines; (6) that during the investigation on 3-5-1971, wire of different types was seen by the WAPDA Detection Staff as having been dis-- mantled; (7) that the estimated price of the alleged misappropriated wire is highly inflated; and (8) that the case involves checking of accounts, stores and the accused being Government servants with good record, on principle; they are entitled to bail. Reliance is placed on Keshav Vasudeo Kortikar v. Emperor (AIR 1933 Bom. 492) and Ch. Bashir v. The State.
10. Khawaja Sultan Ahmad, the learned counsel for the petitioner in Cr. Misc. 1606/8-71, in addition, urged: (1) that his client being XEN was incharge of eleven Divisions and he never went on the spot and that it can be verified from his Transport Log Book; (2) that he only countersigned the estimates because they tallied with the survey and other records; (3) that he did not know what was actual position at the time of the revised estimate, as several thefts had taken place; (4) that the expression "in the presence of XEN" in some documents is a for--gery; and (5) that he has been involved due to enmity.
11. Mr. Kamal Mustafa Bokhary, the learned A. A. G. Explained the circumstances in which the crime was detected. On 5-5-1971 the WAPDA Complaint Cell received an information about this matter. It was marked for enquiry to Mr. Muhammad Yousaf, Technical Officer. He went on the spot on 5-5- 1971, which was the last day of disma ntling of about a couple of months. The dismantling process had been divided into three sectors, namely; Shalamar, Hudyara and Saddar Muhammad Yousaf found a truck loaded with wire. Muhammad Saleem was present at the spot. Muhammad Yousaf wanted to see the records including the dismantling register, but Saleem stated that they were with the Audit Section. This did not satisfy the Technical Officer, who sent for Mr. Arif Raza Khan, petitioner, who came at the site and tried to support Muhammad Saleem in respect of the records.
According to the prosecution, it is signi--ficant that even the record of dismantling of that very day i.e. 5-5-1971, was concealed from the Technical Officer. The latter took the sample of the dismantled wire in the presence of the XEN, who signed the memo. The sample shows that the wire dismantled on that day was mainly the standard wire. Muhammad Yousaf then went to the Office of Khalid Rashid petitioner and asked for the papers. He gave the same reply that they were with the Audit Section. As the petitioners were avoiding the examination of the documents by the Technical Officer, the latter made attempts till 15th of May 1971, to procure the records from different sources and was able to get the original estimate of the dismantled wire relating to Shalamar and Saddar links. He then checked the stores where he found that the standard wire was deposited only for the first time and that too on the last day of operation i.e., on 5-5-1971. The entire enquiry by the Technical Officer took about 12 days, therefore, the formal, registration of the case was delayed till 17th of May 1971. The original report related only to two sectors i.e., Shalamar and Saddar and the estimated value was over Rs. 1,00,000. This report was based on the revised estimates by the petitioners. 1-he facts about Hudyara area, which is the largest of all, are used on the original estimate, which involved an amount of over Rs. 3,00,000. That is why Mr. Bokhary explained that the slue of the misappropriated wire comes to more than Rs. 4,00,000. He also explained that Rs. 3 per pound is the Book value, but the police has worked out the price on the basis of the last auction price, which is Rs. 8.40 per pound. From 7-5-1971 to 6-6-1971 the police was throughout asking the petitioners to produce all the estimates, the daily entry register and the dismantling register; but they avoided to cooperate with the police. They were able to obtain interim anticipatory bail within two days of the registration of the case from the learned Sessions Judges, who ultimately refused to confirm the same on 5-6-1971. Their anticipatory bail was rejected by the High Court on 7-6-1971.
The petitioners were formally arrested and on the 8th of June 1971, they were produced before the learned Magistrate, who flowed remand to the police custody till 10-6-1971, when they were sent to the judicial lock-up. Thus the police had only a few hours of questioning the accused and that they have not been thoroughly interrogated by the police because of lack of time and opportunity. In spite of that, according to the learned A. A. G, the police has collected sufficient evidences against the petitioners. Some of the items are: the original estimates, indicating the quantity and quality of the wire, prepared by Khalid Rashid and Muhammad Saleem and countersigned by Arif Raza Khan; the revised estimate of Saddar and Shalamar Links signed by the petitioners, some of these revised estimates were prepared subsequently, but were anti-dated by them; the original estimate of Hudyara Link in a tampered condition; survey record (map) prepared and kept since 1966 by the WAPDA, showing the quantity, quality and length of the wire after repair; the failure of the petitioners to deposit the standard wire in the store till 4-5-1971; some responsible witnesses from the WAPDA, whose statements have been recorded under section 161, ,r. P. C. And who have supported the entire prosecution case against the petitioners; an amount of Rs. 9,030 has been taken into -possession by the police which is a part of the sale proceeds of the misappropriated wire and which presumably was given to some persons by the petitioners as hush-money; the failure of the petitioners to send inventories daily and those which were sent are undated. Thus, according to the learned A. A. G, when he investigation is still in progress, the police has been able to collect sufficient evidence of criminal breach of trust, forgeries, Falsification in accounts and of course, corruption.
12. On the question of law applicable to such like cases the learned A. A. G. Relied on Naranji Premji v. Emperor (AIR 1928 Bom. 244), Rao Harnaraln Singh Sheoji Singh and others v. The State (AIR 1958 Pb. 123) and Salehon and others v. The State (PLD 1969 SC 267) to contend that the case fell within the prohibition contained in subsection (1) of section 497, r. P. C. And, therefore, the petitioners cannot be released on bail.
13. It is not necessary for me to discuss in detail the value of the evidence so far collected by the police. The learned A. A. G. Has given convincing explanation for the so-called delay in the registration of the case. Allegedly the petitioners are responsible for it, because they, by their conduct, tried to avoid the examination of the relevant documents by the Technical Officer and thus made an attempt that the crime should not be detected. The Police has made certain important recoveries of some money and documents some of which have been forged. According to the calculation of the learned A. A. G. After deduct--ing the night hours and time spent in various Courts, the police had only sixteen hours to interrogate the petitioners when they were in their custody. This explains why the police has not been able to make all the recoveries so far.
14. The contention of the learned counsel for the petitioners that the original high quality and heavier wire was replaced by inferior wire before the dismantling has not impressed me. Firstly, the prosecution case about the actual position is support--ed by the survey records prepared in 1966 after the so-called extensive repairs; and secondly according to the estimates pre--pared by the petitioners themselves, the standard wire was to be removed by them; but after dismantling it, they did not deposit this wire in the stores. Their own conduct supported by oral and documentary evidence and the statements made by responsi--ble witnesses from the WAPDA organization have satisfied me that ample reasonable grounds exist to believe that the petitioners are guilty of the offences they have been accused of. The arguments advanced on behalf of Arif Raza Khan, petitioner are of no avail to him at this stage. The evidence against all the petitioners is almost equal. His own signatures are on the relevant documents. The question of enmity cannot be gone into in these proceedings, particularly, when it was not earlier raised before me. The only circumstance that the Log Book of his Transport does not show his visit to the spot is no positive proof of the fact that he never went on the site of dismantling on other Transport. The position taken by him, that he countersigned the estimates because they tallied with the survey record in fact goes in favour of the prosecution. It shows the existence of standard wire before dismantling process started. I am of the view that the arguments advanced by his learned counsel are of no avail to him in these proceedings. Therefore, subject to the question of law which I' will presently discuss, this case is covered by the bar contained in subsection (1) of section 497, Cr. P. C.
15. The question of law with regard to the applicability of bar of subsection (1) of section 497, Cr. P.
C. To section 409, P. P. C. Was raised in the earlier petition as well, but the learned counsel for the petitioners have again argued it at some length. While dealing with this question in the earlier petition, which I dismissed in limine, I observed as follows: -- "Learned counsel for the petitioners throughout the argu--ments 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., provides transportation for life as punishment in similar language as provided in section 307, P. P. C. In respect of a similar case covered by section 307, P. P.
C. Their Lordships of the Supreme Court have, in Salehon and others v. The State PLD 1969 SC 267, held that it is within the prohibition contained in sub--section (1) of section 497, Cr. P. C."
Ch. Nazir Ahmad Khan, the learned counsel for the petitioners conceded that if the ruffling of the Supreme Court in the case of Salehon is considered as having declared a law on bail in respect of an offence under section 307, P. P. C. The punishment provided in section 409, P. P. G. Being similar to the one provided in Khalid section 307, P. P. C., it (Law) will apply to the offence under Rashid section 409, P. P. C. Also. But the contention raised by State him is that their Lordships of the Supreme Court have not declared any law in Salehon's case, .As according to him, some M. A.
Rulings and a line of argument based on the language of Zullah, l some sections of the P. P. C. As the learned counsel put it, of course with respect, have not been specifically noticed by their Lordships of the Supreme Court. I do not agree with the learned counsel: firstly; while deciding a question of law it is not necessary for the Supreme Court to notice every argument or, for that matter, to refer to all rulings and decisions cited before them. My view has the support of a recent ruling of the Supreme Court in the case of Yousaf Ali Khan v. State (PLD 1971 SC 508) and secondly; the decision in the case of Salehon leaves nothing in doubt, in so far as the intention of their Lordships of the Supreme Court is concerned. They have, in so many words declared the law, regarding interpretation of subsection (1) of section 497, Cr. P. C. It cannot be disputed that when the Supreme Court declares law the High Court is bound to follow it. I am of the firm view that the Supreme Court has declared it as law that the phrase, "punishable with death or transportation for life" in subsection (1) of section 497, Cr. P. C. Is to be read as "punishable with death or punishable with transportation for life". Therefore, section 409, P. P. C. Falls within the mischief of the prohibition contained in subsection (1) of section 497, Cr. P. C. As much as, section 307, P. P. C. Relying on the Supreme Court ruling I further hold that the effect of this interpretation is that a Court has discretion to grant bail to a person accused of non-bailable offence, but if the offence is punishable with death or transportation for life, as interpreted by their Lordships, then the power to grant bail is limited to the conditions Laid down in the exception clause arid proviso thereto. Thus if the Court comes to the conclusion that reason--able grounds exist to believe that the accused is guilty of an offence "punishable with death or transportation for life", it would have no jurisdiction to grant bail unless it comes to the conclusion that the case falls under the proviso, which deals with females, persons who are less than 16 years of age and those who are sick or infirm.
16. This case, according to my finding in para. 14 above falls within the bar contained in subsection
(1) of section 497, Cr. P. C. Therefore, obviously the petitioners are not entitled to bail. The question of application of the proviso does not arise.
17. The learned counsel relying on Bombay and Peshawar cases, already noticed, contended that 'on principle' bail should be allowed in cases of present type if the accused are Govern--ment servants with unblemished record; the counsel, the police and other authorities would need their assistance in going through the records and the checking of the stores; and there is likelihood of protracted proceedings before the trial Court. The learned counsel relying on another decision of this Court in Ram Narain v. Emperor (AIR 1932 Lah. 16), vehemently contended that it should be declared by this Court as principle that in such like cases, the accused should ordinarily be released on bail. The Lahore case just noticed does not show that the offence with which Agha Haider, J. Was dealing fell within the bar, as explained above. It is a short judgment, and is reproduced for the sake of convenience and reference: "Mr. Ram Lal has appeared on behalf of the Crown in this matter and says that the Crown has got apprehension that my order dated 2nd March 1931, might be construed as if I had sanctioned the release on bail of the accused for all times during the pendency of the trial. I never meant to pass such an order and in fact such an order could not be passed. Whether accused is to remain at large on bail depends in most cases upon the exigencies of the particular case before Court. I only threw out a hint that in cases of this kind it is desirable that the accused should be given full opportunity of instructing his counsel as regards the accounts etc. The accused is already on bail, security has been furnished and it will be for the trial Magistrate to determine whether that security is sufficient or not. The discretion of the Magistrate at the various stages of the case would not be hampered by the hint which I have thrown out. I am sure this point would be kept in mind by the Magistrate whenever the question of cancellation of bail is raised before him."
It is apparent that apart from the fact that it is not known what the offence involved was; it is clear that the High Court was dealing with an application for cancellation of bail and it was not intended to lay down as a principle in all accounts cases, that the accused should be released on bail. On the contrary, this was treated only as a hint. It was also observed that the Magistrate should watch the proceedings at every stage and that the discretion of the Magistrate "would not be hampered by the hint". I, with greatest respect, am of the view that if his Lordship intended to lay down as law that in cases under section 409, Penal Code and other similar offences punishable with transportation for life, in which accounts are involved, the Magistrate has discretion to allow bail to the accused if the case does not fall within the exception and the proviso to subsection (1) of section 497, Cr. P. C. Then I regret to say that in view of the ruling in Salehon's case it is not a correct law and I am unable to follow the same.
18. The reliance of the learned counsel on Bashir's case from Peshawar is also misplaced. He relied on the following observation by Faizullah Khan, J:- " ....There is ample discretion with the Court irrespective of the fact whether there were reasonable grounds to believe that the accused had committed the offences to allow bail, in that refusing bail in such cases tantamounts to punishment in advance and also entails over-crowding in the judicial lock-up. It will indeed be a poor consolation if a Government servant were to be discharged or acquitted after he had remained in custody for a long time, as it is a matter of common knowledge that ordinarily It takes about one year for trial of such like cases to be concluded. This being the position, the Government servants charged for such like offences must be allowed bail unless and until there are reasonable grounds to believe that the accused might abscond."
I, with respect, do not agree with the observations which are likely to be interpreted as giving special treatment to the Govern--ment servants in matters of bail, nor I agree with the observation that over-crowding in judicial lock-ups, without a proper amend--ment, is a good ground for releasing an accused person on bail, if otherwise it is not within the `discretion' of the Court. On the precise point for which the judgment has been cited, I have to point out, with respect, that his Lordship was of the impres--sion that none of the offences involved in the case before him was punishable with death or transportation for life. In the opening part of the judgment section 409, P.
P. C. Is specifically mentioned and there is no doubt about it that one of the punish--ments provided for this offence is transportation for life. Probably the counsel appearing before his Lordship failed to point out this fact at the time of the hearing of the case. Therefore, I am of the view that the Peshawar case also is of no help to the petitioners. In any case, if his Lordship intended to lay down tile law that in a case under section 409, P. P. C. If it falls within the prohibition contained in subsection (1) of section 497, Cr. P. C. And is not covered by the proviso thereto, the Court has discretion to allow bail, it is not a correct law and I regret to say that I cannot follow it.
19. The only other case left to be examined is that of Keshav Vasudeo Kortikar from Bombay. It undoubtedly supports the learned counsel in his contentions. It was a case under sec--tion 120-B read with section 409, P. P. C. And section 120-B read with section 447-A, P. P. C. The learned Judges pointed out that the accused in that case could not be released on bail by a Magistrate, if there were reasonable grounds for believing that he had been, guilty of an offence specified in sub-- section (1) of section 497, Cr. P. C. With regard to the powers of the High Court and the Court of Session, how--ever, it was observed that they are not as limited as that of a Magistrate under section 497, Cr. P, C. Because it was thought that according to section 498, Cr. P. C. The power of the Sessions Court like that of High Court, is unlimited and not fettered by subsection (1) of section 497, Cr. P. C. In other words, the law Laid down in that case is that the power of the High Court and Court of Session under section 498, Cr. P. C. Is not controlled by the provisions of section 497, Cr. P. C. Our Courts and in particular the Supreme Court have not accepted this interpretation. It is now an established law in Pakistan that the power under section 498 is to be exercised subject to the limiting provisions contained in section 497, Cr. P. C. And that the former section does not confer any additional power on the High Court and the Court of Session. The ruling in Muhammad Ayub v.
Muhammad Yaqoob (PLD 1966 SC 1003) does not leave any scope for any further discussion on this question. The very basis of the decision cited from Bombay High Court has not been accepted as correct, in Pakistan. Therefore, so far as our Courts are concerned, the Bombay Court did not lay down correct law. The considerations noted in that case for exercise of discretion in matters of bail, therefore, are not relevant in the cases covered by the prohibition contained in subsection (1) of section 497. As already noted, if the case falls within this bar then the Court would have no discretion at all to grant bail unless, as observed by our Supreme Court in the case of Salehon, it falls within the proviso. I, therefore, with regret decline to follow the law laid down in the Bombay case.
20. The cases cited by the learned A. A. G. Do not speci--fically deal with the question that the offence under section 409, P.P. C. Falls within the prohibition contained in subsection (1) of section 497, Cr. P. C., I have been able to find a case, namely; Maung Ba Maung. v. Emperor (AIR 1930 Rang.
335) where an offence under section 409, I. P. C. Was involved any relying on the Full Bench case from Rangoon; King-Emperor v. Nga San Htwa (AIR 1927 Rang. 205) it was held that such an offence, for purpose of bail fell within the prohibition contained in sub--section (1) of section 497 and that the High Court should not grant bail except for some special reasons. We are not concerned with the special reasons which were then considered as sufficient to grant bail, because the view, as it then prevailed in some of the High Courts, was that section 498 of the Cr. P.
C. Conferred additional power on the High Court and the Court of Session and that for special reasons bail could be granted even in cases which fell within the prohibition contained in sub-- section (1) of section 497. This Rangoon case has, however, dealt with the specific question, whether an offence under section 409 of the Penal Code, which is punishable with transportation for life, is included in the prohibition with the affirmative answer.
21. The only other argument to be noted is the probability of a protracted trial in cases like the present one. There are some cases, in which inordinate delay in conclusion of trial, if it amounted to abuse of process of Court, has been considered as good ground for bail in cases falling within the prohibition con--tained in subsection (1) of section 497, Cr. P. C, But in order to give such a finding, the trial must proceed and it has to be proved as any other question of fact that there has been inordinate delay and that it amounted to abuse of process of Court. Their Lordships of the Supreme Court have ruled that the delay per se is no ground for bail in cases falling within the prohibited field. I took note of this aspect of law in Dara and others v. State (PLD 1971 Lah. 391). In the case of Muhammad Nawaz and others v. The State (1968 SCMR 683) their Lordships refused to grant bail, in spite of the fact that there was delay of over four years. In the present case, this question does not, at all, arise. The mere supposition that the accounts have to be gone into and that it may take a long time for the trial to conclude is no ground to anticipate that this would be a case of abuse of process of Court. In such like cases at the preliminary stage, there is absolutely no justification to grant bail, on this ground.
22. In view of the foregoing finding by me about "reason--able grounds to believe" and the discussion on the question of law, I am of the view that the case of all the three petitioners falls within the prohibition contained in subsection (1) of section 497, Cr. P. C. It is not covered by the proviso thereof and none of the so-called principles pressed by the learned counsel is of any help to the petitioners. This Court has no discretion in the matter and thus, there being no force in these petitions, the same are dismissed. The observations made in this judgment on the questions of fact are only in the context of the arguments raised by the learned counsel and shall not influence the mind of the learned trial Court.
23. Before closing this judgment I would like to point out once again (earlier I made an observation in Dara and others v. The State), that the statutory law of bail in Pakistan, in the chang--ed social conditions, appears to be harsh and there is need for serious consideration on the question of its amendment. Sec--tion 497(1) and section 498, Cr. P. C. Can be amended so as to confer more powers on the Court of Session and the High Court and if this is not possible on the High Court alone, through a discretionary jurisdiction in cases "punishable with transportation for life", and in all cases including those punishable with death on ground of actual long delay (per se) even if otherwise it does not amount to abuse of process of Court. The 1 concept of bail before actual arrest by police, is so far based on precedent law only. I am told a proposal was once discussed on legislative side to codify this branch of law of bail. 1 strongly feel that it needs statutory recognition and procedural streamlining so as to provide unambiguous preconditions for making applications in this behalf; specification of situations and offences in which it can be allowed; and consequences that may follow the grant of bail (e. g. Compulsory joining of investigation forthwith by the accused) or on refusal to grant such bail (e.g. Provision for the disposal of the question of physical custody of the accused). In case it is to be provided that on rejection of bail-before- arrest-application, the accused person is to be taken into custody, it might be appropriate to make provision like section 426, Cr. P. C. To allow anticipatory bail for few days so as to enable the accused to approach the next higher Court for the relief.
Copy of this judgment be sent to the Secretary, Law, Govern--ment of Punjab.