S.M.ZUBAIR, J.--The State has filed this petition under section 497 (5) Cr.P.C, for the cancellation of bail before arrest granted to the respondent Rana Dilbar Hassan in case F.I.R No.20/1989 dated 20.1.1989, under section 409 P.P.C, registered at Police Station Sharakpur, District Sheikhupura, for misappropriating sum of Rs.72,862.00, during his tenure as Chairman Zakat and Usher Committee, Village Dhamkay from 1980 to 1986, vide order dated 10.5.1989 of S.J. AC, Lahore.
2. The brief facts giving arise to this petition are that on the complaint lodged by Hafiz Muhammad Ilyas, Vice-Chairman, and other members of L.Z.C Dhamkay Gharbi, against the respondent, a preliminary enquiry was conducted by Chairman, TZC, Ferozewala under the direction of Assistan Director Social Welfare / Sec DZC Sheikhupura, who vide his report dated 3.2.87 proposed immediate removal of the respondent from his office, and also for the registration of criminal case for mis-appropriation/embezzlement of Local Zakat Fund to the extent of Rs.40,479.00. Thereafter, though probe was made by Administrator Zakat (Inspection) Punjab Lahore, under the order of Chief Administrator Zakat / M.B.R Punjab on 30.3.87, on the application of the respondent dated 30.3.87. In his detailed enquiry on the basis of following pieces of evidence, he came to the conclusion that respondent has committed mis-appropriation of the Local Zakat Fund, that:-
(a) The respondent withdraw Rs.13,000/- on 26.11.84 out of his LZC Bank A/C; disbursed Rs.6,000/- in between 1.1.85 and 26.4.85 after himself utilizing Zakat Fund for the intervening period; and misappropriated the balance of Rs.7,000/-.
(b) The respondent withdrew Rs.6,000/- on 5.5.85 out of his LZC Bank A/C; disbursed Rs.3,300/- on 6.6.85 and then disbursed Rs.3,500/- on 6.9.85 after himself utilizing Zakat Fund for the intervening period of about three months.
(c) The respondent withdrew Rs.12,000/- on 7.9.85 out of his LZC Bank Account; did not disburse a penny out of that amount; and after himself utilizing Rs.12,000/- of Zakat Fund for about eleven months mis-appropriated the entire amount.
(d) The respondent withdrew Rs.11,000/- on 6.6.86 out of his LZC A/C; disbursed Rs.6,100/- on 12.8.86; further withdrew Rs.500/- on 19.8.86 & disbursed Rs.4,900/- on 19.11.86, after himself utilizing Zakat Fund for the intervening period.
(e) The respondent received Rs.42,986/- out of Provincial Zakat Fund in between 7.11.83 & 19.8.86, out of which he disbursed Rs.23,800/- only, thus he mis-appropriated Rs.18,700/-, leaving a balance of Rs.486/- only on 19.8.86 in the bank account of his LZC.
In additional to that the respondent committed procedural irregularities, in the record. The amounts referred to above were withdrawn on the basis of one meeting held on 16.3.80 against the spirit of the relevant law and contravention of the provisions sec 21(1)(2) of the "OPERATIONAL ARRANGEMENTS FOR LOCAL ZAKAT FUNDS"
3. The Administrator Zakat (Inspection) Punjab Lahore, during enquiry against the official conduct of the respondent as Chairman LZC Dhamkay and Dhamkay Gharbi, found that from 16.3.80 to 19.8.86, in all Rs.1,20,788/- were withdrawn by Rana Dilbar Hasan LZC Chairman on different dates, out of which disbursement of Rs.47,140/- only of Local Zakat has been proved through the relevant registers, but the respondent failed to account for the disbursement of Rs.72,862/-, thus mis- appropriated the said amount. He further held that he did not properly maintain the relevant registers that is LZ 11, l2, 13 and Usher Register III, which further prove his mens rea. During the enquiry proceeding, on 14.7.87 and 23.7.87, 24 stamp papers were produced to show that the zakat has been given to the needy persons but the close scrutiny revealed the names of eight dead persons, who received Zakat from the respondent after their death, which shows that even respondent fabricated evidence to set up a false defence. According to the special audit report dated 4.4.90, the respondent misappropriated Rs.73,360/- from the local Zakat fund.
4. The learned law officer, who appeared for the State on the basis of above referred evidence submitted, that in the presence of this material it cannot be said that case has been lodged against the respondent, due to enmity or with ulterior motive, just to harass the innocent person, which is the prime, requirement for granting pre-arrest bail to the accused persons. He further submitted that the learned trial Judge on erroneous appreciation of facts and law, has deprived the police of its legal right to investigate a cognizable case, contrary to the provisions of Criminal Procedure Code, thus this ing order has adversely effected the investigation of the case. The respondent has committed an offence, which falls within the prohibitory clause, hence he was not even entitled to bail after arrest. He also referred to the statements of the respondent before the Inquiry Officers, wherein, he admitted his criminal liability and sought time to re-imburse the amount, but later on resiled from his statements, and failed to honour his commitment. The learned law officer submitted, that the finding of the trial Judge that the case is an outcome of enmity and malice is based upon the gross mis-reading of the material so far collected by the prosecution.
5. The learned law officer further contended that the learned trial Judge by releasing the respondent on pre-arrest bail, has in fact interfered with the investigation of the police contrary to the scheme of the Criminal Procedure Code. He has placed reliance on the following observations of their Lordships of Privy Council in Emperor v. Khwaja Nazir Ahmad (A.I.R (32) 1945 Privy Council 18):- "Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India there is a statutory right on the part of the Police under Ss. 154 and 156, to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court under S.561A".
6. Learned counsel for the respondent has vehemently opposed this petition and submitted that enmity between Hafiz Muhammad Ilyas, Vice- Chairman Of LZC and the respondent is admitted on the record, hence this case was got registered with ulterior motive against the respondent. The learned trial Judge was justified in law to enlarge the respondent on pre-arrest bail to save him from undue humiliation and harassments, hence he has not violated any guiding principles applicable to the case of pre-arrest bail.
7. After hearing the learned counsel for the parties and perusing the record, I am of the opinion, prima facie, there is sufficient material against the respondent for the registration of the criminal case against him. The case was registered after through probe, by two independent officers, hence it cannot be said, that the respondent has been involved due to enmity and malice on the part of Vice-Chairman and his party men. The learned trial Judge on mis-application of law and erroneously appreciation of facts granted pre-arrest bail to the respondent, which amounts to undue interference in the investigation of the cognizable offence by the police, and is against the dictates of law. The Courts under the law are required to keep balance between the parties, keeping in view the right of the police to investigate the crime, and the right of accused to be released on bail, if there appears no reasonable grounds to believe that accused is involved in an offence falling within prohibitory clause, unfortunately this guiding principle was not kept in mind by the learned trial Judge, while enlarging the respondent hastly on pre-arrest bail, which has resulted into the mis-carriage of justice. The impugned order is liable to be set aside on this ground alone. The substantial part of the record is still in the custody of the respondent, which cannot be retrieved, unless, his pre-arrest bail is cancelled.
8. The upshot of the above discussion is that this petition is accepted, order dated 10.5.89 granting pre-arrest bail to the respondent is set aside. The respondent shall be taken into custody as accused in the above mentioned criminal case. 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.