JUDGMENT MUHAMMAD ASIF JAN, J.- F.I.R.No.39/94 dated the 10th of June, 1994 was registered on the written complaint of Mr A.U.Saleem, the then Director General of the Lahore Development Authority, alleging the commission of offences under sections 218/467/468/420/409 and 109 P.P.C read with, section 5 (2) of the Prevention of Corruption Act, 1947, at Police Station Anti-Corruption Establishment, Lahore.
2. The case of the prosecution according to the F.I.R is to the following effect:- That Mian Muhammad Nawaz Sharif the then Chief Minister of the Punjab and Chairman of the Lahore Development Authority caused a wilful loss of about 1.30 crore rupees to the Lahore Development Authority public funds by making allotment of plots in ruthless violation of law/policy.
Some of these allotments were made in favour of a favourite batch of Qila Gujjar Singh, Lahore, 12 such persons including Muhammad Taufique made applications for allotments of plots to the then Chief Minister in the year 1989-90 and Mian Muhammad Nawaz Sharif without getting any verification directed the allotment of plots. According to the prosecution one residential plot measuring 1-Kanal was allotted in the year 1989-90 to Muhammad Taufique petitioner.
3. Muhammad Taufique petitioner was admitted to pre-arrest bail by my learned brother Mr Justice (Retired) Muhammad Amir Malik vide order dated the 16th of June, 1994.
4. A bare reading of the first information report (F.I.R.No.39/94) clearly reveals that as per R.I.R the villain of the piece was Mian Muhammad Nawaz Sharif, the then Chief Minister of the Punjab and Chairman of the Lahore Development Authority.
5. The Lahore Development Authority is an Authority created by the Lahore Development Authority Act 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 Lahore Development Authority 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 sell, lease, exchange or otherwise dispose of any property vested in it.
In this legal frame work, the petitioner was not a part of the Authority but only an applicant for a plot.
The applications for allotment of plots were made to the Chief Minister of the Punjab in his capacity as the Chairman of the Lahore Development Authority and the orders of allotments were made by the Chief Minister of the Punjab being the Chairman of the Lahore Development Authority. Thus, prana facie it does not seem that the petitioner was guilty of any cheating, forgery or criminal breach of trust. As a matter of fact no specific role whatsoever has been assigned to the petitioner.
6. The law relating to the grant of bail before arrest has been laid down in Chapter XXXIX of the Code of Criminal Procedure of 1898. Section 498 of the Code of Criminal Procedure empowers the High Court or Court ol Session to direct that any person be admitted to bail.
7. It was laid down by the Judicial Committee of the Privy Council in the case of Lola Jairam Das and others v. King Emperor reported in A.I.R. 1945 P.C. 94 that Chapter XXXIX of the Code of Criminal Procedure deals exhaustively with the subject of bail to accused persons, the question of grant of bail to convicts being dealt with in section 426 of the Code.
8. The subject of consideration by the Federal Court of Pakistan in the case of The Crown v. Khushi Muhammad reported in PLD 1956 FC 43 was an order passed by Mr Justice M.R Kiani of the Lahore High Court to the effect that an accused person, pending investigation, may be granted bail, "if it is intended to arrest him". The order was passed on the basis of a full Bench decision in the case of Hidayat Ullah Khan v. The Crown reported in PLD 1949 Lahore page 21.
9. The most important proposition that emerges from the Federal Court's Judgment in Khushi Muhammad's case is that the grantee of bail is placed under a restraint, namely, that of the sureties, in place of an existing custody and, therefore, bail is really substitution of one form of custody by another.
10. Their Lordships of the Supreme Court of Pakistan were pleased to observe in the case of Sadiq Ali v. The State reported in PLD 1966 Supreme Court page 589 that it is only the certainty of arrest that can be accepted as the foundation for the exercise of the power of bail and the inevitability of an arrest can be equated with actual restraint or custody. A person against whom accusation has been laid, might reasonably anticipate arrest and before that happens he may voluntarily appear in Court. He would thus be placing himself in custodia legis, to be dealt with in accordance with law.
That is exactly what happened in this case when Muhammad Toufique petitioner voluntarily placed himself in custodia legis and was admitted to prearrest bail my learned brother Mr. Justice (Retired) Muhammad Amir Malik, vide order dated the 16th of June, 1994.
11. Notwithstanding the plethora of Judgments on the subject of the grant or refusal of bail and the distinction between bail before arrest and bail after arrest, a confusion seems to have been crept in the field making it. Into a grey area which has been cleared by the recent decision of the Supreme Court of Pakistan in the case of Sarwar Sultan v. The State & another reported in PLD 1994 Supreme Court page 133 and I can in all humanity only repeat paragraph 9 of the said Judgment which is as follows:- "From legal angle, it can be said that there is material difference between bail after arrest as contemplated under section 497, Cr.P.C and bail before arrest under section 498, Cr.P.C. In non- bailable offence, an accused is not to be released on bail by the Court, if there appear reasonable ground for believing that he has been guilty of offence punishable with death or imprisonment for life or ten years. Of course it is also provided that bail can be granted on exceptional grounds of age, infirmity and sex and also if there are sufficient grounds for further inquiry and also on the ground of statutory delay.
As against that under section 498, Cr.P.C. High Court or Court of Session can grant bail at any stage and this provision is normally used for bail before arrest. In this provision amendment has been made and by Code of Criminal Procedure (Amendment) Act XII of 1976 section 498-A is inserted imposing restriction on grant of bail before arrest to a person, who does not surrender before the Court or against whom no case is registered. Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want of . Recovery of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime. The Court has to. Keep in view all these factors in order to maintain balance between both parties and would be cautious not to give undue advantage to one party over the other at the stage of investigation. Of course there is no cavil about the proposition that the Court has power to grant bad before arrest in an appropriate case, if the Court is satisfied that is a fit case for grant of such relief within the limits of law as stated above."
12. Yet another fundamental principle regarding the grant or refusal of bail is to be found in the ratio decedent of the Judgment rendered by their Lordships of the Supreme Court in the case of Khalid Saigol v. The State reported in PLD 1992 Supreme Court 495, 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 there to there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence."
13. In the same case their Lordships were pleased to hold that:- "We may state straight way that where a Court is called upon to exercise its judicial discretion, it will not be discharging its functions property if it were to proceed upon a priori assumption that in all cases where an offence punishable with death or transportation for life is alleged, bail must as a matter of course be refused.
14. In my humble opinion, a classic Judgment in which the criteria for the grant or refusal of bail has been laid down in the case of Muhammad Iqbal v. The State reported in PLD 1963 Lahore page 279 by the late Mr Justice Manzoor 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 feel 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."
15. In the present case Muhammad Taufique petitioner has not yet been . Found guilty, as a matter of fact, his trial has not even commenced. What offence has been committed by the petitioner by applying for the allotment of a plot will have to be established by the prosecution when the trial commences and it will be for the trial Court to draw its on independent conclusions on the basis of the evidence produced before it. Suffice it to say for the moment that the thrust of the allegations contained in the first information report seem to be against Mian Muhammad Nawaz Sharif who allegedly made allotment in violation of law. Be that as it may, I am restraining myself from making any observation whatsoever, lest it prejudices the case of either the prosecution or the accused, in the light of the ratio decidendi of the recent view of their Lordships of the Supreme Court in the case of Sarwar Sultan v. The State and another reported in PLD 1994 Supreme Court page 133.
16. Prima facie, an allottee may well be a bona fide purchaser for valuable consideration and reference in this context may usefully be made to the case of Manzoor Ahmad Wattoo v. Abdul Wahabul Khairi and another reported in PLD 1994 Lahore 466.
17. What mens rea was involved as far as an allottee who may be a bona fide purchaser for valuable consideration will be for the prosecution to show at the trial when it commences. For the time being no material indicating any mens rea has been brought on record or at least shown in Court during arguments. Only the first information report was repeatedly read out.
18. No ground much less justification has been made out for recalling the ad interim order passed by my learned brother Mr. Justice (Retired)Muhammad Amir Malik on the 16th of June, 1994 admitting the petitioner to pre-arrest interim bail. Resultantly, the ad interim bail before arrest granted to the petitioner vide order dated the 16th of June, 1994 is hereby confirmed.