' The petitioners Rana Ishtiaq Mahmood, Inspector Police, Umar Obaid Ahmad Butt and Ehtashamul Haq both Inspectors of Excise and Taxation Department, seek pre-arrest bail under section 498, Cr.P.C. In case F.I.R. No,156, dated 8-12-1994 registered with Police Station Yakki Gate, Lahore under Article 3/4 of Prohibition of Hadd Ordinance, 1979 read with section 14 of the Dangerous Drugs Act and section 161, P.P.C. With section 5(2) of 1947 (Prevention of Corruption Act, 1947).
2. Briefly, the facts of the case are that the petitioners arrested two persons, namely, Mujahid and Abid Shah on the allegation of heroin smuggling. The petitioners recovered 4 Kg. Heroin and Alcohol from the possession of Mujahid accused. The petitioners in consequence of interrogation of accused Mujahid conducted raids for the arrest of remaining accused persons. As alleged, instead of legal action against the accused persons arrested; the petitioners received an illegal gratification to the tune of Rs,4,00,000 from the accused persons. Abid Shah also paid an amount of Rs,70,000 as illegal gratification to the petitioners as he was involved in heroin smuggling and no legal action was taken against him. The S.H.O. Police Station, Ichhra on the directive of S.S.P., Lahore conducted an enquiry into the aforementioned facts and concluded enquiry against the petitioners; hence F.I.R. No,156/94 was registered against them.
3. The petitioners earlier applied for grant of bail before arrest vide Criminal Miscellaneous No,5277/B of 1994 and were allowed ad interim pre-arrest bail by this Court till 19-12-1994. As the offences under the Prohibition .Of Corruption Act and section 161, P.P.C. Fell within the jurisdiction of Special Judge Anti-Corruption, while the other offences fell within the jurisdiction of learned Sessions Judge; the petitioners filed two separate petitions for grant of bail before arrest. The learned Special Judge Anti-Corruption in respect of the offence under section 161, P.P.C. And section 5(2) of Prevention of Corruption Act, 1947 confirmed the pre-arrest bail of the petitioners; while the learned Additional Sessions Judge dismissed the aforementioned petition for grant of bail before arrest under section 3/4 of Prohibition of Hadd Ordinance, 1979, read with section 14 of the Dangerous Drugs Act.
4. The learned counsel for the petitioners contended that all the witnesses mentioned in the F.I.R.
Have got their statements recorded under section 164, Cr.P.C. And have sworn affidavits, wherein they have exonerated the petitioners from the commission of offences mentioned in the F.I.R.; the statements of certain constables recorded by the Investigating Officer on 26-12-1994; after a period of nearly two months of the alleged occurrence lacks credibility and do not connect the petitioners with the commission of offence either under Article 3/4 of Prohibition of Hadd Ordinance or under section 14 of Dangerous Drugs Act. Further contended that the ingredients of offence under Article 3/4 of Prohibition of Hadd Ordinance are not attracted at all; at the most falls under section 403, P.P.C. The motive behind the accused Ilyas Jat to engage a counsel at this stage is nothing but to involve the petitioners innocently in the case on behalf of certain elements.
5. The learned counsel for the State as well as learned counsel for the accused Ilyas Jat in case F.I.R. No,132/94 controverted the arguments of learned counsel and vehemently contended that the affidavits have been sworn by the witnesses as the amount was repaid to Mujahid and co- accused through a S.P.; the fact of which has been brought on record by the Investigating Officer; the motive behind the affidavits and statements under section 164, Cr.P.C. Is to save the petitioners from criminal liability; further contended that from the petitioners yet recovery is to be made of four kilograms heroin, two kilograms Charas, 20 bottles of Morfia tablets and balance of Rs,92,000 taken as illegal gratification from the accused persons.
6. I have heard the arguments of learned counsel at length and have perused the record of F.I.R.
No,132/94, dated 12-11-1994 and F.I.R. No,145/94, dated 12-11-1994 registered with Police Station Masti Gate, Lahore wherein 7 Kg. Heroin and 2 Kg. Heroin was recovered respectively. I have also examined Zimnis Nos.27 and 30, dated 9-11-1994; Zimnis Nos.19 and 29, dated 10-11-1994; Zimni No,18, dated 11-11-1994 and Report No,4, dated 12-11-1994 of Police Station Yakki Gate. I have also examined the licence No,219 issued dated 11-4-1992 in the name of M. Ilyas Jat; produced by the S.P.
Investigating Officer.
7. The contention of learned counsel that the witnesses mentioned in the F.I.R. Have sworn their affidavits and have got their statements recorded under section 164, Cr.P.C.; wherein have exonerated the petitioners from the commission of offences, is of no help to the petitioners in the light of dictum laid down in case Sanaullah and 3 others v. The State 1983 SCM R 15; as the complainant and constables being also witnesses admittedly would support prosecution case. The contention of learned counsel that after a lapse of about 5 months; recovery from the petitioners would be fictitious and planted one is also without force. At this stage it is not necessary to appreciate and probe into the probabilities of recovery; one has to examine it to see whether prima facie the evidence is sufficient to connect the accused persons with the crime. The petitioners are named in the F.I.R.; the police constables; who were members of the raiding party have implicated the petitioners in their statements and there is nothing on record to show that these witnesses have any enmity against the petitioners. The contention of learned counsel that the recovery of the misappropriated articles and illegal gratification could not be considered as a valid ground for not granting pre-arrest bail is devoid of merits as was held in case Zia-ul-Hassan v. The State PLD 1984 SC 192 that:-- "There is no bar of propriety or law in this behalf. In this behalf it is the duty, amongst others, of the Court granting pre-arrest bail to examine the question whether such an action would not frustrate the investigation vis-a-vis various factors including the relevant recovery. If the order granting pre- arrest bail by the trial Court is silent about it, the presumption would be that it was not conscious about the same."
' Further observed:-- "The Court has no power to grant bail before arrest unless all the conditions laid down by the superior Courts from time to time are satisfied, the most essential of them all being that the intended arrest would be tainted with mala fides which must be specifically stated. It is in this context also that the other condition of irreparable loss is to be viewed."
8. It was observed in case Sarwar Sultan v. The State and another PLD 1994 SC 133 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. And was held that the 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 misappropriated or incriminating articles and other material, which may be necessary to connect him with commission of alleged crime. The most important criterion is that it is the mind of the Court which is to be satisfied that the case under its consideration is a fit case or not for grant of bail in line with guidelines provided by the superior Courts covering all legal requirements.
9. The petitioners are Government servants inasmuch as petitioner No,1 is Police Inspector while the rest are Inspectors of Excise and Taxation Department; nothing has been brought on record that the petitioners are the victims of departmental enquiries and jealousies and the intended arrest was to harass and ridicule the petitioners with an ulterior motive to disagree through the process of being handcuffed. The learned counsel for petitioners remained unable to satisfy the Court with regard to the conditions of mala fide of the intended arrest on the part of either S.S.P., Lahore the complainant S.H.O. Or the Investigating Officer S.P. Crimes Branch.
10. I am of the view, it is, therefore, not a fit case for grant of anticipatory bail, the petition is consequently dismissed.