' This petition for grant of bail under section 497, Cr.P.C. Was filed against the order of Sessions Judge, Mirpur, passed on May 26, 2000, whereby bail was declined.
2. The facts giving rise to the present petition are that the Chief Administrator, Zakat and Ushr, Muzaffarabad lodged a written complaint with the Inspector-General of Police, Azad Jammu and Kashmir Government, alleging therein that nine cheques on the bogus sanction of the Prime Minister of Azad Jammu and Kashmir Government, were issued. The matter, when brought to the notice of the Prime Minister, revealed that the signatures of the Prime Minister were fictitious and forged. Therefore, a case under sections 419/420, 467/468 and 471, A.P.C. Was registered against the accused-petitioner.
3. The accused-petitioner applied for his release on bail, after being apprehended which was refused through the order impugned herein.
4. Ch. Muhammad Yunus Arvi, the learned counsel for the petitioner maintained that the F.I.R. Was lodged after the delay of one month. It was also contended that there was no prima facie case existing against the accused-petitioner as, according to him, there was no conclusive proof that the accused-petitioner forged the signature of the Prime. Minister. It was yet to be determined as to whether the signatures whereby sanction was issued, were true signatures of the Prime Minister or otherwise. Therefore, the matter required further probe, as such, the accused-petitioner was entitled to the grant of bail. The learned counsel also sent on arguing that there was no proof on record that the accused-petitioner withdrew any amount through the aforesaid sanction or cheques issued by the Zakat Department. The offence charged against the accused-petitioner, under section 467, A.P.C. Was not attracted while the other offences did not carry the punishment covered under the prohibitory clause.
5. Ch. Muhammad Mushtaq, the learned Additional Advocate-General who appeared on behalf of the State, strenuously argued that there was a very strong prima facie case existing against the accused-petitioner. It was elaborated that the accused-petitioner forged the signatures of the Prime Minister on the joint application of nine persons moved for the grant of 'Zakat', whereby Rs,50,000 per applicant, were sanctioned. In consequence of the aforesaid application, cheques were issued in their favour, received by the accused, to be deposited in the accounts opened in the names of those applicants. The amount was also credited in their accounts, out of which Rs,50,000 were withdrawn by the accused-petitioner. It was further argued that the accused-petitioner also forged D.O. Letter on behalf of Lt.-Gen. Jamshaid Gulzar, Commander 10 Corp, Rawalpindi, addressed to Mr. Jehangir, Secretary Zakat who, in response, replied through a letter to the said General when it was discovered that the D.O. Letter was fabricated. The accused-petitioner has committed a heinous offence by forging the signatures of no less than the Chief Executive of the State, as such, was not entitled to the discretionary relief. The investigation for completion of the challan was in progress. The judicial discretion exercised by the trial Court did not require any interference as the same was exercised keeping in view the facts and law involved therein.
6. I have heard the learned counsel for the parties and also gone through the record carefully. The case under the aforesaid provisions of law was registered against the accused-petitioner on May 16, 2000, on the written complaint lodged by the Chief Administrator, Zakat and Ushr, Muzaffarabad with the Inspector-General of Police, Azad Jammu and Kashmir, on May 13, 2000. According to the prosecution version, the accused-petitioner started proceedings for an amount of Rs, 4,50,000, in the name of nine persons, with the forged sanction, from the Zakat Fund, and the same was presented for issuance of cheques with a fabricated letter of an Army Officer Lt.-Gen. Jamshaid Gulzar. The truth revealed when the matter was brought to the notice of the Prime Minister.
7. The prosecution, during the investigation, recorded the statements of prosecution witnesses and also took into possession the incriminating material against the accused-petitioner, including his signatures to be sent to the Handwriting Expert.
8. The prosecution took into possession the original application with forged Prime Minister's signatures, alongwith a forged letter of Lt.-Gen. Jamshaid Gulzar and also a letter addressed in response, by the Secretary Services and Zakat. During the investigation, number of other applications where bogus sanction was also fabricated, was recovered at the instance of the accused-petitioner. Another application with bogus sanction was also taken into possession where the accused-petitioner earlier received Rs,1,00,000 in the similar manner. The other record whereby, through similar bogus sanction the amount was received by one Abdul Razzaq Chishti, was also taken into possession. The prosecution also made recovery of a stamp and two pencils at the instance of the accused-petitioner, from his residential house. The police also recovered cheque books in the name of accused-petitioner and other applicants, shown in the application, of National Bank of Pakistan, Mirpur, Sohneri Bank Ltd., Mirpur, Kashmir Co-operative Development Corporation Ltd., Mirpur, another Cheque Book of National Bank of Pakistan, Cooperative Branch, Allied Bank of Pakistan Branch, Mirpur, Faisal Bank Ltd., Mirpur. Muslim Commercial Bank Ltd., Chechian. The application, with the forged and fabricated signatures of the Prime Minister, in the name of Muhammad Hafeez, Muhammad Akbar Shah, Syed Irian Gilani and Munir Hussain were also recovered in presence of the recovery witnesses, at the instance of the accused-petitioner.
9. The prosecution recorded the statements of prosecution witnesses, Muhammad Ehsan, Head Constable, Tassadiq Hussain, Constable, Maqbool Hussain Naqvi, Deputy Administrator, Zakat, Qiasuddin, Account Officer and Bashir Ahmed Mir.
10. Any person accused of any non-bailable offence, if arrested and brought before the Court, may be released on bail, but shall not be so released if there appear reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment for life, or for 10 years provided further that the Court, may direct any person under the age of 16 years, a woman, or any sick or infirm person to be released on bail under section 497, Cr.P.C. In subsection (2) of the aforesaid section, it was also provided that if it appeared to the Court at any stage of the investigation, inquiry or trial as the case may be, that there' were no reasonable grounds for believing that the accused committed non-bailable offence, but there were sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry be released on bail. While deciding bail application, what are the factors and principles to be kept in mind, are firstly to be looked into. Generally, the nature of accusation and prosecution evidence in support of it, severity of the punishment and the character, behaviour or plea of defence, if any placed, are to be considered. But the bail shall be refused in cases punishable with death or imprisonment for life, unless the Court finds no ground to believe the accused having committed such offence. The bail is not to be allowed to an accused person if it is shown reasonable ground to believe that he has committed the offence punishable with death or imprisonment for life. The principle was discussed in Muhammad Aslam's case (PLD 1967 SC 539), wherein the Supreme Court of Pakistan observed as under:- "As observed in Khalid Saigol v. The State PLD 1962 SC 495 at p.499: Subsection (1) of section 497 evidently applies to a stage where the accused is first brought before the Court or his arrest is brought to the notice of the Court and as such, the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has, nevertheless, as a necessary part of its functions, namely, to ascertain as to, whether there exist any reasonable grounds upon which its belief can be founded, to look at the materials placed before it by the investigating agency and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference 'of guilt before it can come to the conclusion that its discretion no longer exists."--"
' The proposition also came under consideration before the Supreme Court of Pakistan in Ch. Abdul Malik's case (PLD 1968 SC 349) where their lordships held as under:-- "--In case of non-bailable offences coming before the Courts, grant of bail is-a relief resting primarily in the discretion of the Courts to be exercised with due care and caution as a fundamental incident of exercise of judicial power, taking into account the facts and circumstances of each case. Orders on bail application should not be considered as routine orders.
Involving as they do the liberties of the citizens, they must be carefully balanced and weighed in the scales of justice and the requirement of relevant law, as contained in section 496-498 of the Cr.P.C. There is however, a further limitation on the Court's discretion in regard to cases of offences which are punishable with death or transportation for life, which is that the accused shall not be released on bail in such cases if there are reasonable grounds for believing that he has committed such an offence. 'Reasonable grounds' is an expression which connotes that the grounds be such as would appeal to a reasonable man for connecting the accused with the crime with which he is charged, 'ground' being a word of higher import than 'suspicion'. However, strong a suspicion may be it would not take the place of reasonable grounds. Grounds will have to be tested by reason for their acceptance of rejection. The reasonableness of the grounds has to be shown by prosecution by displaying its cards to the Court, as it may possess or is expecting to possess as demonstrating evidence available in the case both direct and circumstantial. If such grounds exist tending to connect the accused with the crime, bail should be refused, without the need to go into a deeper appreciation of the merits of those grounds and the evidence on which they are rested which functions are to be assumed at the trial stage. However, if it is found that the charge is groundless, i,e,, to say unsupported by any evidence or instead of the ground being reasonable, their absurdity stands exposed on a plain view, or the charge on its face value is reduced to a minor one which is not punishable with death or transportation for life, as for example where it is a case of accidental and unintended death caused by simple hurt, the limitation on the Courts' discretion is removed which must then by freely exercised in favour of the grant of bail. Similarly where reasonable grounds are not disclosed but grounds do exist for a further investigation and inquiry into the guilt of an accused person, the case will fall under section 497(2) of the Cr.P.C., in which case again bail should not be withheld."
' A similar view was taken in Manzoor's case (PLD 1972 SC 81) wherein the Supreme Court of Pakistan, while disposing of a bail matter, observed in the following manner:-- "....Held: The High Court did not follow correct principles in refusing bail. It is obviously not correct to depend on the ipse dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. Bail in non-bailable case is a matter within the, discretion of the Courts, which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence. It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
' The principle was followed in a latter case where their Lordships of the Supreme Court of Pakistan, in Khalid Javed Gilani's case (PLD 1978 SC 256), observed as under:-- "As the power conferred by this section is not an arbitrary power, it has to be exercised by reference to the material placed before the Court, and as to what that material should be we cannot do better than quote the observations of Sajjad Ahmed Jan, J. In Manzoor and 4 others v. The State (PLD 1972 SC 81). There Sajjad Ahmed Jan, J., observed that this material would consist of 'the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence'. The other relevant circumstances would include evidence produced by the accused, and, as submitted by Mr. Sardar Iqbal, section 497, Cr.P.C. Does not draw any distinction between evidence produced by the prosecution and evidence produced by the accused. Now as bail has to be allowed or rejected on basis of this material, it follows that the Court has to make a tentative assessm ent of its evidentiary value in order to decide a bail application, the moreso, as the section does not in terms contain any restriction on the Court's power to assess the evidentiary value of the material produced before it. But the section is a part of the Code under which the guilt or innocence of the accused has to be determined in the light of the evidence which is produced when the trial of the accused begins, therefore, whilst deciding a bail application, the Courts and especially the superior Courts, must refrain, directly or indirectly, from giving any conclusive finding on the question of the guilt or innocence of the accused, and it may be that an application for bail may fail if it cannot be decided without an elaborate sifting of evidence. But because the Court must not prejudge the case of the prosecution or of the accused, this does not mean that the Court can shirk its obligation to decide the application for bail before it, and that application can only be decided by Court's belief about the material produced before it--"
11. Now, coming to the merits of the present case, keeping in view the principles settled by the aforementioned authorities, there is a strong prima facie case existing against the accused- petitioner which shows that the accused was specifically nominated in the First Information Report.
The prosecution has collected the incriminating material against him which has been discussed in the earlier part of the order, including the statements of the prosecution witnesses, recorded under section 151, Cr.P.C. And recoveries effected at the instance of the accused-petitioner from his residential house and other articles taken into possession by the investigating agency. The accused-petitioner, prima facie, appears to be connected with the alleged offence.
12. The learned counsel representing the accused-petitioner laid a stress that the F.I.R. Was lodged after a considerable delay as, according to him, the same was lodged after a month of the occurrence as alleged by the prosecution and the offence under section 467, A.P.C. Was not attracted, as such, the other offences charged against the accused-petitioner did not carry the punishment for more than 7 years, therefore, bail was a rule. In my estimation, there is no substance in the argument of the learned counsel, either, on the ground for lodging the belated F.I.R. Or asking for bail on the ground that the offence under section 467, Cr.P.C. Was not attracted, as such, bail in officer offences was a rule. It would be sufficient to mention that there was no delay in lodging the F.I.R. In the circumstances of the case. When the matter was noticed by the concerned authorities, the report was lodged promptly.
13. So far as the other point is concerned, as it has been held in the authorities discussed above, that it was not the function of the Court to examine the merits of the prosecution case as, at this stage, the Court is not called upon to conduct anything in nature of preliminary trial, to consider the propriety of the accused's guilt or innocence, though a tentative assessment is permissible because the Court cannot pass any order in vacuum. It may also be clarified that there is a little merit in the argument of the petitioner's counsel that grant of bail is a rule and its refusal an exception in the cases D charged against an accused not covered under the prohibitory clause.
Suffice to say, had there been any intention of the Legislature, these offences would not have been regarded non-bailable. The bail matter in non-bailable cases is to be decided in the light of its own circumstances and surroundings.
14. The Sessions Judge, while exercising his judicial discretion, has refused bail to the accused petitioner. A weight has to be given to the order passed by the trial Court. No valid grounds have been advanced. The investigation is in progress. The challan has yet to be presented. Therefore, finding no force in this revision petition, it is hereby dismissed. It may also be mentioned that the citation referred to by the learned counsel for the petitioner, PLD 1978 SC (AJK) 83, has no bearing on the case in hand.