JUDGMENT MUHAMMAD ASIF JAN, J.- Col.(fyd.) Ghazanfar Ali Khan, petitioner, aged about 67 years, on retirement from the Pakistan Army was reemployed on contract basis by the Lahore Development Authority, an Authority set up under the Lahore Development Authority Act of 1975 (Punjab Act No.XXX of 1975), as Director of Administration in 1984. Thereafter, he was retained on contract basis from year to year and in 1987 he was designated Director Estate Management.
Finally, in 1991 his year to year contract was not extended and thus he was relieved of his assignment from the Lahore Development Authority.
2. Col.(Rtd.) Ghazanfar Ali Khan, petitioner, was arrested on the 10th of June, 1994, in pursuance of a case registered vide F.I.R.No.20/94, dated 10.6.1994 at Police Station Anti-Corruption, Lahore Region, Lahore under Sections 420/468, 471/409, 467/109, 218 P.P.C, and Section 5(2) of the Prevention of Corruption Act, 1947, lodged by Mr A.U. Saleem, the then Director General of the Lahore Development Authority.
The petitioner was languishing in the District Jail of Lahore ever-since his arrest i.e. 10.6.1994, without trial.
3. The case of the prosecution, according to F.I.R. No.20/94, briefly stated is to the following effect:- That Mian Muhammad Nawaz Sharif on the last day of his tenure as the Chief Minister of Punjab Chairman, L.DA. Misappropriated many plots by making fictitious allotments, thus twelve valuable plots belonging to the L.DA. Amounting to about Rs.1.78 crore were alienated at the meagre price of Rs.96,000/ per kanal on 6.8.1990. However, because of a constitutional petition in the Lahore High Court brought by way of Writ Petition No. 5979 of 1990 in which this Court was pleased to call for a report from the Lahore Development Authority, the said allotments were cancelled through an ante-dated order by Mr. Qamar-uz-Zaman, the then Director General of the Lahore Development Authority and thus the misappropriation of valuable property the market price of which was about Rs.1.78 crore was prevented. The F.I.R, concludes by saying that the act of illegal and fraudulent allotments stood concluded not only by the orders of Mian Muhammad Nawaz Sharif, the then Chief Minister Punjab/Chairman L. DA, Secretary to the Chief Minister,- the then Director General, L.DA. Mr. Qamar-uz-Zaman and/ or others who may have connived with the official proceedings besides the so-called transferee reported henchmen of the actual beneficiary.
4. Thus, a bare perusal of the F.I.R, clearly reveals that Col.(Rtd) Ghazanfar Ali Khan, the petitioner herein, is not even mentioned in the said FJ.R. According to the F.I.R. No.20/94 the villain of the piece was Mian Muhammad Nawaz Sharif, the then Chief Minister of the Punjab and Chairman of L.DA.
Along with Secretary to the Chief Minister, the then Director General, L.DA., namely, Mr. Qamar-uz- Zaman.
5. The Lahore Development Authority is an Authority created by the Lahore Development Authority of 1975 (Punjab Act No.XXX of 1975). Subsection (2) of Section 4 of the Lahore Development Authority Act, 1975, hereinafter referred to as the Act, provides that:- "The Authority shall be a body corporate, with perpetual succession and a common seal, with powers, subject to the provisions of this Act, to acquire and hold property, both movable and immovable, and may by the said name sue and be sued."
Thus, the L.D A. Is an independent legal person.
Sub-section (3) of Section 4 of the Act provides that the Chief Minister of the Punjab shall be the Chairman of the Authority.
Section 6 of the Act lays down the powers and functions of the Authority and clause (iv) of sub- section (3) of Section 6 gives the Authority the power to sue, lease, exchange or otherwise dispose of any property vested in it.
In this legal framework, Col.(Rtd) Ghazanfar Ali Khan, the petitioner, was not a part of the Authority but only an employee of the Authority and in that capacity bound to carry out and give effect to orders of the Authority, It is also dear that the petitioner in his capacity as an employee of the Authority was neither empowered to entertain applications for the allotment of plots belonging to the LDA and nor did he pass any order for the allotment of any plots of the Authority. The applications for allotment of plots were made to the Chief Minister of the Punjab in his capacity as the Chairman of L.D A. And the orders of allotments were made by the Chief Minister of Punjab being the Chairman of the L.D A. Thus, prima facie it cannot be said that the petitioner was guilty of any cheating, forgery or criminal breach of trust. As a matter of fact no role whatsoever has been assigned to the petitioner.
6. The law relating to the grant or refusal of bail has been laid down in Chapter XXXIX of the Code of Criminal Procedure of 1898. Section 497 Cr.P.C, lays down when bail may be taken in case of non- bailable offence. Sub-section (1) of Section 497 Cr.P.C, provides that:- "When any person accused of any nonbailable offence is arrested or detained without warrant by an officer-incharge of a police-station, or appears or is brought before a Court, he may be released on bail,"
Thus, so far, the Court has a discretion which, of course, must be exercised judiciously and not arbitrarily.
However, the same sub-section has a dichotomy because it goes on to lay down that:- "but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years."
In this part of sub-section (1) of Section 497 Cr.P.C, the discretion of the Court has been curtailed by a prohibition.
Notwithstanding the prohibition contained in the later portion of sub-section (1) of Section 497 Cr.P.C, the first proviso to Section 497(1) Cr.P.C, creates an exception to the prohibition by again creating a discretion in the Court regarding a person who is under the age of 16 years or any woman or any sick or infirm person.
7. The policy of the law and the view of superior Courts has always been that the grant of bail even in case of non-bailable offences is the rule and refusal of bail is an exception. This has been the view of this Court since 192S which is evident from the case entitled "Emperor v. Ghulam Muhammad and others reported in A.I.R. 1925 Lahore 510.
The same view was taken by the Supreme Court of Pakistan in the case of Abdul Malik v. State reported in P.L.D. 1968 SC 349 wherein it was further held that the basic essential governing the matter of bail is that bail should never be withheld as a punishment. In the Same case their Lordships of the Supreme Court were pleased to observe that the words "reasonable grounds" appearing in the later part of sub-section (1) of Section 497 Cr.P.C, are an expression which connote such grounds as would appeal to a reasonable man for connecting the accused with the crime with which he is charged, "grounds" being a word of higher import than "suspicion", but where reasonable grounds are not disclosed and only a further inquiry is warranted, then clearly the case will fall under sub-section (2) of Section 497 Cr.P.C, and in that case bail should not be withheld.
8. The criteria for the grant or refusal of bail has been laid down in the case of Muhammad Iqbal v.
The State reported in P.L.D. 1963 Lahore 279 by the late Mr Justice Manzur Qadir, the then Chief Justice in his inimitable style as follows:- "The provisions relating to bail in respect of persons accused of having committed offences are an attempt to strike a balance between three requirements, all of which are essential.
A person who has not been found guilty is presumed to be not guilty and, therefore, must be treated as such. This is the first requirement. The process by which the guilt of a person is to be found, and in case that guilt is established he is to be brought to punishment, must not be allowed to be defeated. This is the second requirement. Persons who are desperate and fee they have nothing to lose by committing more offences should not be allowed to be in a position to do so.
This is the third requirement.
From the first it follows that an accused person should not be deprived of his liberty during his trial; from the second, that it must be ensured that he faces his trial and does not defeat the inquiry into the allegations against him, by running away or committing suicide, or by destroying or suppressing the evidence against him; from the third, that he must not be let loose on society if he is so placed as to think that he might just as well hang for a sheep as for a lamb."
9. Bail has to be allowed or rejected on the touch stone of Section 497 Cr.P.C, and on the basis of the material placed before the Court and the Court has to make an assessment, albeit tentative regarding the evidentiary value of such material before passing an appropriate and just order. It was for this reason that their Lordships of the Supreme Court were pleased to observe in the case of Khalid Saigol v. The State reported in P.L.D. 1962 SC 49 that:- "The mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence."
10. In the present case, the petitioner was arrested on 10.6.1994 and is in jail ever-since. The investigation has been completed by the investigating agencies and all that has been shown in Court is the F.I.R, and nothing else.. The learned Additional Advocate General has not even stated as to when will the trial of the petitioner commence. It is not possible for the superior Courts of any civilized country having a democratic dispensation to permit its citizens to be detained indefinitely in jails without a fair trial. Every citizen of the State is entitled to a fair and free trial without delay.
This view has earlier been expressed by a Division Bench of this Court in the case of Afahfobzur Rehman's v. State reported in 1993 MLD (Lah.) 1399. The same view was expressed by this Court in the case of Qari Abdul Aziz Jalali v. State reported in P.L.D. 1992 Lahore 165 and the case of Naveed Asif v. State reported in 1987 M.L.O. (Lah.) 1714.
11. As the petitioner is an elderly person being about 67 years old is also both sick and infirm, therefore, a report regarding the state of his health was called for from the Medical Superintendent, Services Hospital, Lahore. The said report dated 28.11.1994 reveals that the petitioner suffers from breathlessness on account of hypertension and his E.C.G. Shows that there is a strain in the left ventricular of the heart. Thus, clearly the petitioner suffers from hypertension and has a heart condition.
12. The first proviso to sub-section (1) of Section 497 Cr.P.C, creates an exception and lays down that even though there may be reasonable grounds for believing that a person is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years, he may still be granted bail if he is sick or infirm. It is significant that the words used are not sick and infirm but sick or infirm meaning thereby that both sickness or infirmity are grounds for the grant of bail independently of each other. The reason for this is not difficult 1 to find. While sickness is relatable to an ailment, illness or disease, infirmity is relatable to weakness and senility independently of any ailment or disease. Both have been treated as independent grounds for the grant of bail.
13. In the present case the petitioner is entitled to the grant of bail on merits because reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years do not exist. Therefore, the case of the petitioner is covered by sub- section (2) of Section 497 Cr.P.C, which entitles him to be released on bail.
14. The petitioner is also entitled to the benefit of the proviso to subsection (1) of Section 497 Cr.P.C, being sick as well as infirm within the meaning of the said proviso. He is, therefore, released on bail provided he furnishes bail bond in the sum of Rs.50,000/- with one Surety in the like amount to the satisfaction of the trial Court/Assistant Commissioner /Duty Magistrate, Lahore.