KHALIL-UR-REHMAN RAMDAY, J.-This order shall dispose of a suo- motu notice issued to Noor Mohammad, Mohammad Shall and Faruq Azmat who stand accused of offences punishable U/Ss 380/420 of PPC and of an offence punishable U/S 14 of Ordinance VI of 1979, through FIR No.210/90 of P.S. Sadar Depalpur of District Okara and who had secured their release on bail from the Court of the learned A.C./Magistrate Section 30 at Depalpur.
2. The above mentioned FIR had been recorded on a written communication addressed by one Mohammad Amin, SDO of WAPDA at Sahiwal who had stated therein that electrification work of Mauza MANCHERIAN had been commenced by WAPDA in which connection six transformers and other necessary equipment had been stored at the residence of Abdul Ghani, Lumberdar of the said village who had informed the WAPDA authorities that one Mohammad Saleem who was an employee of WAPDA as a helper at Bhai Phairu had come to him in a WAPDA truck bearing No. LHG- 384 and had taken away three transformers in the last week of June on the pretext that the same had to be checked at Sahiwal. He had further informed the complainant-SDO that he had taken a proper receipt from the said Mohammad Saleem helper in token of the receipt of the said transformers.
3. The said complainant-SDO had further reported that these transformers had been fraudulently and dishonestly taken away by Mohammad Saleem helper of WAPDA and that a case should accordingly be registered and investigated.
4. In pursuance of the recording of this FIR, the said Mohammad Saleem accused had been arrested and during the investigation it transpired that he had stolen/misappropriated the said three transformers with the help of Noor Mohammad Foreman of WAPDA and of Mohammad Shall, the driver of the above mentioned truck and had thereafter sold two of these transformers to one Faruq Azmat who is a WAPDA contractor at Lahore.
5. The said two transformers were accordingly recovered from the above mentioned Faruq Azmat on 2.10.1990.
6. The afore mentioned Mohammad Saleem accused, petitioned this Court for his release on bail through Crl. Misc. No.4584-B of 1990 which petition was dismissed by me on 19.12.1990 and while dismissing the said application I had expressed my displeasure over the quality of investigation as the I.O. Had not associated or interrogated the above mentioned truck driver, the Foreman and the WAPDA contractor from whose possession the said two transformers had been recovered.
7. I had asked the D.I.G, of Lahore Range to have the case investigated by some senior and competent officer.
8. After dismissal of his above mentioned first application for his release on bail, Mohammad Saleem accused approached this Court through Crl. Misc. Nos. 1176-B of 1991 and 2242-B of 1991 for his admission to bail but these two applications had also been dismissed by me through my orders passed on 21.4.1990 and 7.10.1991, respectively.
9. The said Mohammad Saleem then filed a fourth petition before this Court bearing Crl. Misc. No. 3182-B of 1991 which came up before this Court on 10.9.1991 and in which notice was issued on 15.9.1991.
10. Through mv order dated 6.10.1991, I called upon the learned Assisting. To check up with the D.I.G, of Lahore Range about the fate of the investigation in compliance with my aforementioned order dated 19.12.1990 passed in Crl. Misc. No. 4584-B of 1990 whereupon it transpired that my said order had not been complied with in its letter and Spirit. The S.P. Of Okara, however, undertook to depute a DSP of the area to personally investigate the case in question.
11. On 5.11.1991 the learned counsel for Mohammad Saleem accused prayed for permission to withdraw Crl. Misc. No. "3182-B of 1991 pending before this Court on the ground that Mohammad Saleem petitioner before this Court had since been admitted to bail by a learned A.S.J. Of Okara on 22.9.1991 i.e. During the pendency of this petition before this Court for the same purpose.
12. Dissatisfied with this conduct of Mohammad Saleem petitioner I issued a notice to him to show cause why the said bail granted to him by a learned A.S.J. At Okara be not recalled? The said matter is being dealt with separately.
13. During these proceedings it came to my notice on 15.1.1992 that as a result of the investigation conducted by the DSP of Depalpur, above mentioned Mohammad Shaft truck driver, Noor Mohammad Foreman and Faruq Azmat contractor had also been found involved in the theft/misappropriation of the said transformers and that having been arrested in the case in question, all three of them had been admitted to bail by the learned A.C./Magistrate Section 30, Depalpur.
14. I summoned the record of the said case relating to the grant of bails in question and considering that legality and propriety of the said bail granting orders required examination, I issued notice to the said three accused persons to show cause why their said bails should not be cancelled.?
15. It is in pursuance of this notice that Mohammad Shaft, Noor Mohammad and Faruq Azmat above mentioned are before me alongwith their respective counsel. They have been heard.
16. After his arrest Noor Mohammad accused had led to the recovery of one transformer on 22.7.1991 whereafter he was sent to judicial lock up on 25.7.1991 and had been released on bail by the above mentioned learned Magistrate on 15.8.1991 i.e. Within less than 30 days of his arrest, on the ground that his person was no longer required by the police; that the offences alleged against him did not fall within the prohibitory clause and that the challan had not been submitted in Court which was a complete violation of the mandatory provisions of Cr. P.C.
17. Faruq Azmat accused had been arrested on 14.11.1991 while Mohammad Shafi accused had been arrested on 21.11.1991. Both of them were admitted to INTERIM AFTER ARREST bail on 21.11.1991 which interim bail, the learned Magistrate had allowed "WITHOUT GOING INTO THE MERITS OF THE CASE" apparently on the ground that Faruq A/.Mat accused Was lying admitted in jail hospital while his mother was on death bed.
18. As is evident from the order granting bail to Faruq Azmat and Mohammad Shafi, the said interim post arrest bail had been allowed without going into the merits of the case and only on the ground, as explained by the said learned Magistrate who had also been summoned by me, that Faruq Azmat's mother was lying on death bed.
19. Faruq Azmat and Mohammad Shafi accused are not related to each other. Consequently, Mohammad Shafi accused was not concerned with the alleged ailment of Faruq Azmat's mother. It is not understandable as to why Mohammad Shafi accused should have been admitted to interim bail after arrest only because Faruq Azmat's mother was lying on death bed.
20. Thus release of Mohammad Shafi accused on bail was wholly arbitrary and was a shocking exercise of discretion by the said learned Magistrate.
21. No document or certificate of any kind was produced before , the learned Magistrate to support the claim that the mother of Faruq Azmat accused was lying on death bed.
22. On my enquiry, however, the learned counsel appearing for Faruq Azmat accused produced a photo stat copy of a certificate issued by Dr. Mahmood Nawaz, M.S. Of Services Hospital, Lahore stating that Mst. Hafeezan Begum was a patient of Court-controlled diabetes and also of Bronchial Asthama, It has also been stated in the said certificate that the said lady was also suffering from Backache and had a hair-line fracture of vertebra and that during the days When this certificate was issued, the said female was unable to move around. This certificate is dated 5.1.1992.
23. The said learned counsel also produced before me discharge ticket issued by the Services Hospital according to which Mst. Hafeezan Begum had remained admitted in the Services Hospital and had been discharged on 31.7.1991. The age of Mst. Hafeezan is mentioned as 60 years and she was stated to have been admitted for Diabetes and Asthama.
24. On my enquiry as to which of the above mentioned diseases, even if the said certificates were admitted as correct, Was a disease on account of which it could have been said that the patient was lying on death bed, Faruq Azmat accused and his learned counsel had nothing to offer except apologies.
25. According to the discharge ticket of the Services Hospital above noticed, the mother of Faruq Azmat accused had been discharged from the hospital in July, 1991 while the bail was allowed to Faruq Azmat accused in December, 1991 on the ground that his mother was lying on death bed.
Even the certificate of the M.S. Above mentioned which was issued in January, 1992 would demonstrate that the diseases mentioned therein had not warranted admission of the patient in question in the hospital as an in-door patient.
26. It would thus appear that the exercise of discretion by the learned Magistrate in releasing even Faruq Azmat accused on bail, was a reckless exercise of discretion.
27. Although, as has been noticed above, even the alleged compassionate ground, on which Faruq Azmat had been released on interim post arrest bail, was non-existent, yet it may be mentioned that the provisions of Section 497 Cr.P.C, do not permit release of accused persons on bail by subordinate courts, on compassionate grounds i.e. On grounds other than the ones mentioned in the said provision.
28. So far as Noor Mohammad accused is concerned, he was the Foreman of WAPDA at the relevant time and had accompanied Mohammad Saleem helper (accused at the time of removing the transformers in question from the custody of Abdul Ghani LUMBERDAR. A stolen transformer had thereafter even been recovered from his possession.
29. In the circumstances, it was with his active connivance and participation and even patronage that the transformers in question, which were public property, had been stolen/misappropriated and he had done all this being an employee of WAPDA.
30. After having been found involved in the present case, he avoided his arrest and it was only after proceedings had been taken U/S 87 Cr.P.C, that he could be arrested on 10.7.1991.
31. In these circumstances, giving him the premium that despite having remained in custody only for about a month, the challan against him had not been submitted in the Court, was not a justifiable exercise of discretion in his favour.
32. And in view of these very circumstances which have been noticed above, he did not deserve to be admitted to bail only because offences alleged against him did not fall within the prohibitory clause 'that investigation with respect to the. Case in question was complete.
33. Consequently, the bail allowed to him by the learned A.C./Magistrate Section 30 of Depalpur on 15,8.1991 is recalled.
34. As has been noticed above, Mohammad Shafi being an employee of WAPDA was the one who was driving the WAPDA truck on which the transformers in question had been taken away and had been transported to Lahore.
35. He was allowed interim post arrest bail by the learned Magistrate not on merits but because the mother of his co-accused namely Faruq Azmat was allegedly on death bed.
36. This was hardly a ground to release Mohammad Shafi on bail, who did not deserve bail even on merits.
37. Resultantly the bail extended to Mohammad Shafi accused through an order dated 21.12.1991 of the said learned Magistrate, is also recalled.
38. Faruq Azmat accused is a WAPDA contractor at Lahore. Two of the transformers in question had been recovered from his possession and at his instance. He had produced a receipt regarding purchase of these transformers from Mohammad Saleem accused and it is mentioned in the said receipt itself that to his knowledge Mohammad Saleem was a helper/employee of WAPDA.
39. Knowing that Mohammad Saleem accused was so employed in WAPDA as a helper and yet purchasing two transformers from him, is by itself sufficient to show bad faith on the part of Faruq Azmat accused and he could not, therefore, be said to be a purchaser of these transformers in good faith.
40. He was arrested on 14.11.1991 and was admitted to interim post arrest bail on 21.12.91 only on the ground that his mother was on death bed.
41. From the examination of his mother's alleged illness, as above noticed, it would transpire that an this assertion on his part was false.
42. Therefore, he was also unjustifiably admitted to bail and the said bail is also recalled.
43. This disposes of Crl. Misc. No.280-B/91 relating to the notices issued to Mohammad Shafi, Noor Mohammad and Faruq Azmat accused for cancellation of the bail allowed to them by the learned Magistrate.
44. But before I part with this order I must express my displeasure over the manner in which the learned Magistrate had exercised his discretion in favour of the above mentioned three accused persons in the matter of granting bail to them. This discretion had been exercised by him in complete disregard of the facts of the case and the law regulating the subject.
45. A notice shall, therefore, issue to the learned A.C./Magistrate Section 30 of Depalpur to show cause why proceeding should not be initiated against him for his said conduct.
46. An independent file shall be constructed with regard to this notice and the same shall be listed before me on 2.3.1992.