1. ' This is an application for cancellation of bail granted to the respondent Haji Muhammad Rafiq by the Court of Session, Karachi South on 29-2-1996. The facts of the case are that the complainant Rizwan Masood lodged a report at P.S. Garden on 17-12-1995 stating therein that his father Dr. Muhammad Nasir Masood had a clinic at Office No,5, Rimpa Plaza, who had died on 28-8-1995. The documents belonging to Dr. Muhammad Nasir Masood in respect of his house, plots, saving certificates and some other documents were lying at his clinic. The complainant Rizwan further stated in the F.I.R. That after the death of his father he had searched for the documents but he could not trace the same. He stated in the F.I.R. That he suspected that the documents had been stolen by the respondent Haji Muhammad Rafiq, who happened to be a relation of the complainant, and his deceased father. This report was registered by the police showing the offence falling under section 14 of the Offences Against Property (EOH) Ordinance, 1979.
2. ' The respondent Haji Muhammad Rafiq, whose name appeared in the F.I.R. As a suspect, surrendered himself before the Court of Sessions Judge, Karachi (South) and applied for the grant of bail alleging mala fide against the complainant as well as the police, and stated that he apprehended his arrest, humiliation and maltreatment at the hands of the police in the case in which only suspicion was shown against him. He was granted interim pre-arrest bail on 12-2-1996 and the Sessions Judge, Karachi (South) confirmed the order granting interim pre-arrest bail to the respondent on 29-2-1996, when State Counsel had conceded to the grant of bail. The order confirming the pre-arrest bail to the respondent reads as under:- "There is an inordinate delay in registration of the F.I.R. The complainant in his further statement has stated that the incident was allegedly seen by one Punoo but the said Punoo in his statement under section 161, Cr.P.C. Has not stated anything in this respect. Admittedly, the parties are on inimical terms and the applicant/accused has filed photostat copies of the documents/notices exchanged between the learned counsel for the parties. In the F.I.R. The name of the accused/applicant has been shown as an suspected accused. No recovery has yet been effected.
3. The learned District Attorney has conceded for the confirmation of ad interim pre-arrest bail. The applicant/accused has also filed his affidavit alleging mala fides on the part of the complainant as well as police. The offence alleged also falls outside the ambit of the prohibitory clause to section 497, Cr.P.C. Therefore, I confirm the ad interim pre-arrest bail of the accused/applicant on the same terms and conditions."
4. ' The present application has been filed under the provisions of section 497(5), Cr.P.C. For cancellation of the bail granted to the respondent on the ground that grant of such pre-arrest bail to the respondent amounted to depriving the police of the opportunity to investigate the case after taking the respondent in custody and that if the pre-arrest bail was not granted the police would have recovered stolen documents from the possession of the applicant. The learned counsel for the applicant has relied on a case reported in 1985 PCr.LJ 3007, wherein the pre-arrest bail granted by the trial Court was cancelled by the High Court, holding that investigation of the police should not have been interfered with by the Sessions Judge by granting the pre-arrest bail to the accused.
5. On the other hand, the learned A. A.-G. Has supported the order of the Sessions Judge granting pre-arrest bail to the respondent and has further opposed the maintainability of this application on the ground that the application should have been moved before the trial Court instead of coming directly to the High Court. Learned A. A.-G. On this point relied upon a case reported in 1990 PCr.LJ 340 which in turn is based on other cases mentioned in that judgment.
6. ' I have given due consideration to both the aspects of the case. I am of the view that neither the order granting pre-arrest bail to the applicant needs interference nor the application for cancellation of bail is improperly filed before this Court. In the case reported in 1985 PCr.LJ 3007, the pre-arrest bail was cancelled because it was held, looking to the facts of the case that it was not a fit case for the grant of pre-arrest bail as there was evidence of eye-witnesses having seen occurrence in day light and the accused was charged for an offence punishable with death or imprisonment for life, and it was also held that witnesses were not likely to mistake the identity of the accused, but still the learned Sessions Judge had deemed it proper to admit the accused in interim pre-arrest bail. Thus, it will be seen that the facts of this case are substantively different and distinguishable and in this case there is absolutely no direct evidence against the applicant for having stolen the documents, the description and value of which has also not been mentioned in the F.I.R. Therefore, the contention of the learned counsel for the applicant in this case is not sound.
7. On merits also I find that the Sessions Judge had considered the mala fides and other facts while granting pre-arrest bail to the applicant. Reverting to the contention of the learned A. A.-G. About the non-maintainability of the present application, I have scrutinised the case relied upon by the learned A.A.-G. Reported in NLR 1981 (Criminal)
150. In this case the accused were allowed bail by Additional Sessions Judge, Rawalpindi in a murder case and when the application for cancellation of bail was filed in the High Court, it was held that although the jurisdiction of the High Court and the Sessions Court in the matter of cancellation of bail was concurrent but no cogent reason was given as to why Sessions Court was bypassed and the application for cancellation of bail was filed directly in the High Court. On this account the High Court had directed the petitioner to move the concerned Court for the cancellation of bail. The facts of that case are also distinguishable inasmuch as it was held in the reported case that the learned Additional Sessions Judge had examined the case from a limited angle and various factors to be considered while disposing of the bail matter were ignored by him. On that account it was held that the application should have been filed for cancellation of the bail before the Court granting the same at the first instance. In this case the facts are different and it appears that the trial Court has considered all the factors necessary to be judged while granting bail. Therefore, I do not find force in the contention of the learned A. A.-G. That the application before the High Court for cancellation of the bail is not maintainable without moving the trial Court.
8. The arguments of the learned counsel for the applicant that the investigation was stifled by grant of pre-arrest bail in this case, also has no force in view of the fact that firstly there is no clear allegation that the documents, if any, stolen were in possession of the respondent, secondly, what is the nature of the documents, whether they are valuable securities and what is their value, such details are also lacking in this case. Under these circumstances, it cannot be said that the granting of the pre-arrest bail by the Sessions Judge in this case has resulted into interfering with the investigation of the police. Under these circumstances, I do not find that this is a fit case where the order of the grant of pre-arrest bail be set aside. The application is, therefore, dismissed.