' NASIR ASLAM ZAHID, J.---This petition for leave is directed against the order dated 20-5-1998 passed by the Balochistan High Court allowing a miscellaneous application filed in a disposed of Criminal Bail Application No,326 of 1997. We have heard the arguments of Mr. Abdul Hafiz Pirzada, learned Sr. ASC for Petitioners Abdul Rashid Nasir and Taftan Oil Company (Private) Limited (hereinafter referred to as TOC); Mr. Tariq Mehmood, learned ASC for respondent No,1 Pakistan State Oil Company Limited (PSO); Mr. Abdul Samad Dogar, learned ASC for respondent No,2, National Bank of Pakistan. No one has appeared on behalf of respondent No,3, the State through F.I.A. With the assistance of the learned counsel, we have referred to the relevant record.
2. The impugned order by a Division Bench of the High Court of Balochistan allowed Miscellaneous Application No,146 of 1998 filed in disposed of Criminal Bail Application No,326 of 1997. Earlier, before disposal of the said bail application filed by petitioner Abdur Rashid Nasir, certain amounts had been deposited by petitioner No,1 and thereafter, he was granted bail in the criminal case details whereof are mentioned in the later part of this order. In Criminal Miscellaneous Application No,146 of 1998 filed by PSO, prayer was made for release in favour of PSO the amount deposited by petitioner No,1 in the said Bail Application. Criminal Miscellaneous application of PSO was allowed in the following terms:-- "(i) The Registrar shall refund the amount deposited by Abdul Rashid Nasir in NBP Account with Profit earned uptil now to the PSO subject of furnishing undertaking by its authorized persons, to the effect: 'That PSO shall pay back the amount with the profit which is being paid by the National Bank of Pakistan, if at any stage it is so determined/directed to it finally by the competent Court of jurisdiction . '
(ii) This order shall not cause prejudice to any party in any manner as far as their civil dispute pending before different forums/Courts in the Province of Balochistan are concerned; ' Application stands disposed of accordingly."
' The background of the relevant facts are given in the memo. Of petition for leave filed before this Court by the petitioner and paras. 1 to 8 there are reproduced here for convenience of reference:-- "1. That a case has been registered by Federal Investigating Agency (FIA) on the report of Syed Ikhlaq Ahmad Zaidi, Vice-President/Zonal Chief National Bank of Pakistan Quetta vide F.I.R. No, 4 of 1997 dated 5-6-1997 under section 409/420/467/468/471/109, P.P.C., read with section 5(2) of Act II of 1947. The petitioner No,1 filed an application before Special Court constituted under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (the Ordinance) which at the relevant time was being presided over by Mr. Justice Javed Iqbal. The petitioner No,1 was admitted to ad interim bail but subsequently the Special Court by means of order dated 10-9-1997 rejected the said bail application and order was recalled and he was taken into custody.
2. That on 12-9-1997 the petitioner No,1 filed bail application before the Special Court. During pendency thereof investigations were completed by F.I.A. And he was remanded to judicial custody. The learned Special Court rejected the bail application on 8-10-1997.
3. That the petitioner No,1 filed Criminal Bail Application No,326 of 1997 before the learned Division Bench of Balochistan High Court. The application came up for hearing on 11-12-1997 before the learned Division Bench of the High Court when petitioner No,1 submitted an application that he may be allowed to deposit the balance amount of about 45 millions rupees with the Registrar of the Court subject to final determination of dispute with respondent No,1 and respondent No,2. The petitioner No, ,1 was granted ad interim bail with certain conditions in relation to deposit of amount.
The learned Division Bench by means of order dated 8-1-1998 confirmed the bail granted to him and, after making various enquiries, the amount of Rs,45 million was deposited in the account of the Registrar with Al-Fayasal Bank Limited at the risk and cost of Petitioner No,1
4. That the learned Special Judge Banking who is also a special Court under the Ordinance had issued proclamation against the other co-accused namely Abdul Naseeb, Mirza Khan and Khan Zaman who surrendered themselves to the jurisdiction of said Court on 27-3-1998 but they were not granted ad interim bail and were taken into custody, Subsequently Criminal Bail Application No,2 of 1998 was filed before the said Court which was disposed of by means of order dated 28-2- 1998 and the bail was refused.
5. That the abovenamed accused who were Directors of Taftan Oil Company (Pvt) Limited (TOC) filed Criminal Bail Application No,103 of 1998. Before the High Court of Balochistan.
6. That while the said application was being considered the learned Division Bench issued a show- cause notice to petitioner No,1 to the effect as to why his bail may not be cancelled for the reasons that in earlier bail application, the criminal liability was not determined. The said show-cause notice was contested by the petitioner No, 1 .
7. That the learned Division Bench of the High Court by means of order dated 14-5-1998 granted bail to the co-accused persons and the notice issued to petitioner No,1 was withdrawn.
8. That the petitioner filed a Civil Miscellaneous Application in Criminal Bail Application No,326 of 1997 for seeking modification in the order dated 8-1-1998 to the effect that the amount may be de- invested from Al-Faysal Bank and be ordered to be deposited with National Bank of Pakistan. The said application was allowed and the amount was directed to be invested in National Bank of Pakistan Civil Secretariat Branch, Quetta with same terms and conditions.
' Other facts which are relevant are mentioned in the impugned order dated 20-5-1998 of the High Court. An agreement dated 6-2-1996 was entered into between "Taftan Oil Company" and PSO.
Petitioner No,1 Abdul Rashid Nasir had signed the agreement for TOC. In the agreement, it is not mentioned that TOC is a limited liability company. It is only described as ''Taftan Oil Company". In any case, petitioner No,1 had signed the agreement for and on behalf of TOC. Pursuant to the agreement, PSO advanced a sum of rupees six crore to TOC toward mobilization for building storage facilities near and around Taftan where imported POL products were to be stored for PSO and then supplying the same to delivery points at Quetta. Under the agreement, TOC was required to provide an unconditional and irrevocable bank guarantee in favour of PSO for a sum of Rs,6 crores. It was further clearly agreed and understood, according to the agreement, that the amount of Rs,6 crores paid by PSO to TOC on account of mobilization advance would not be utilized by TOC for any other purpose and, that if at any state the amount of Rs,6 crores or any part thereof was found to have been utilized by TOC for any other purpose, PSO would be entitled immediately to encash the bank guarantee without any reference to TOC. It was further provided that TOC shall refund the amount of Rs,6 crores in instalment, as agreed, together with financial charges.
' The High Court in its impugned order further noted the allegation that TOC failed to perform the terms of the agreement and it was also revealed that the bank guarantees furnished by National Bank of Pakistan as a condition for obtaining the mobilization in advance were not valid. When it was found that some fraud had taken place in the issuance of the bank guarantees and alleged misappropriation of Rs,6 crores, the aforesaid criminal case was registered against the concerned officers of the National Bank of Pakistan as well as Directors of TOC and criminal case petitioner No,1 Abdul Rashid Nasir was arrested. He filed an application for his release by the Banking Court which was rejected. In the circumstances, he filed the Criminal Bail Application No,326 of 1997 before the High Court of Balochistan.
' During the pendency of the bail application, it was submitted on behalf of petitioner No,1 that, out of the said rupees 6 crores, he had already reimbursed about one and a half crores to PSO and he further agreed to deposit the balance amount of rupees 4 and a half crores. Permission for deposit of the balance was granted and the amount was directed to be kept in the account of the Registrar of the High Court.
' After noting the respective contentions advanced on behalf of the counsel for the parties during the hearing of the Criminal Miscellaneous Application No,146 of 1998, the High Court allowed the application as follows:-- "We have heard parties' counsel. It is important to note that during pendecy of the bail matter on 8-2-1997. Mr. Basharatullah learned counsel appearing for the applicant/accused submitted an application stating therein that perhaps this Court on the last date of hearing, i.e, 4-9-1997 had directed the applicant to deposit Rs,2 crores in the Account of the Registrar. At that time it was clarified that actually no such order was passed but during arguments it was observed that if the amount outstanding against the petitioner is deposited with the Registrar then the request of the petitioner can be considered in view of the new development.
' Notice of this application was given, however, on the subsequence date i.e, 11-12-1997 it was informed by the learned counsel appearing on his behalf that an amount of Rs,1,49,69,797 is already deposited with PSO; whereas an amount of Rs,2 crores has been deposited by the Managing Director at his own in the Account of the Registrar which he has opened himself in the United Bank Ltd. Corporate Branch and an amount of Rs,1 crore by means of Pay Order No,240661 has been deposited.
' It may be noted that there was no indication in any of the application or the order referred to hereinabove that the amount is being deposited as a trust with the Registrar of this Court. Actually in order to make out a ground for release on bail accused Abdul Rasheed Nasir at his own agreed to deposit this amount. However, full benefit of new development was given to him because he was released on bail subject to furnishing separate surety bonds for his appearance, therefore, argument with regard to placing the amount by the Managing Director of TOC as a trust with the Registrar is devoid of force.
' As far as the civil litigation is concerned that would not be affected at all if the amount is handed over to the PSO subject to the condition which the learned counsel for petitioner has himself imposed on PSO that in case matter is decided by the civil Court the Company shall be bound to return the amount with profit which is presently being paid by the National Bank of Pakistan where the amount is lying. We also agree with Mr. Tariq Mehmood that so far the factum of pendency of arbitration proceedings is concerned that cannot be accepted because no such document uptill now has been placed on record. Even otherwise, prima facie we are of the opinion that after receiving Rs,60 million from PSO against the Bank guarantee which is under dispute furnished by National Bank the TOC has failed to construct the buildings, stores in the area Taftan because this fact has not been denied by the learned counsel for Taftan Oil Company.
' Mr. M. Shakeel Ahmad also pointed out that there were two agreements of the even date. As far as the amount of mobilization advance is concerned that was to be paid in respect of construction of the storage facilities etc, but the amount has been paid towards the price of the POL which the TOC was selling to PSO, therefore, from this angle as well as are convicted to hold that because the mount was received by TOC from PSO for the purpose of constructing godown, but by means of another agreement it has been utilized for the purpose of supplying the oil. Moreover, in terms of the agreement relevant clauses whereof have been re-produced hereinabove the TOC was not entitled to utilize this amount for any other purpose, therefore, in our opinion the applicant has prima facie made out a case for return of the amount."
' Main contention advanced by Mr. Abdul Hafiz Pirzada, learned Sr. ASC for the petitioner, is that miscellaneous application filed by PSO was itself incompetent. According to learned counsel, under no provision of the Criminal Procedure Code or another law, such an application was maintainable and was liable to be dismissed as such. It was argued that the amount of Rs,6 crores was deposited pursuant to the orders/observations made by the High Court while hearing the Bail Application filed by petitioner No,1 and was a condition for grant of bail to him. It was also pointed out that the High Court in fact decided the alleged civil liability of the petitioners which could not be done through the process of misc. Application filed in a disposed of Bail application.
4. Mr. Tariq Mehmood, learned ASC for PSO, has defended the impugned order of the High Court. On being asked under what provision of law the impugned order could be passed by the High Court, learned counsel referred to two provisions of the Criminal Procedure Code namely section 516-A and section 561-A. It was emphasized by learned counsel that the amount of Rs,6 crores deposited by the petitioners was "case property". Apparently the contention does not appear to be very weighty. It was additionally argued that such orders could be passed under inherent powers of the Court vested by section 561-A, Cr.P.C. No, case-law was cited by the learned counsel in support of the proposition that an order of the nature passed by the High Court is sustainable under section 516-A or under section 561-A, Cr.P.C.,
5. The High Court was apparently impressed by the fact that admittedly Rs,6 crores had been advanced by PSO to TOC; that the amount was not deposited as a trust with the Registrar of the High Court; that actually in order to make out a ground for bail. Petitioner No,1, Abdul Rashid Nasir, on his own agreed to deposit the amount; bail was granted to him subject to his furnishing surety bond for his appearance; after admittedly receiving Rs,6 crores from PSO, TOC failed to construct the building/stores in the area in question and that fact has not been denied by learned counsel for TOC; under the agreement, TOC was not entitled to utilize this amount for any other purpose and, therefore, PSO had prima facie made out a case for return of the amount.
' The aforesaid consideration would no doubt be relevant in a civil litigation but, as observed, no specific provision has been pointed out under which prima facie the aforesaid direction/observation could be passed by the High Court. In the circumstances, we are of the view that a case for grant of leave is made out.
6. This petition is accordingly allowed and leave is granted to consider whether Criminal Miscellaneous Application No,146 of 1998 was maintainable and whether the High Court could pass the impugned order under section 516-A or under section 561-A or under any other provision of the Criminal Procedure Code or under any other law in a bail application which had already been disposed of.
' The interim order passed on 25-6-1998 shall continue till the disposal of the appeal. The appeal arising out of this petition will be fixed at an early date.
' It may be observed that this order does not debar PSO from taking action in a civil Court/forum and seeking payment of the amount of Rs,6 crores with or without profits to them which proceedings will, of course, be decided in accordance with law.