' MIAN MUHAMMAD AJMAL, J.---This petition for leave to appeal is directed against the judgment of the High Court of Sindh, Karachi dated 20-11-2001, whereby Constitution Petition No,2266 of 2001 of the petitioner was converted into Criminal Bail. Petition No,1605 of 2001 and was dismissed.
2. Background of the case is that contract for construction of multistoried building of the Sindh Provincial Cooperative Bank Limited (hereinafter to be called as the Bank) on Plot No,21-SR-3, Serai Quarters, Karachi, was awarded to M/s. Ghulam Muhammad Khan & Co., Latifabad, Hyderabad (hereinafter to be called as the Company) on self-finance basis vide agreement dated 1-4-1992 executed between the Bank through its Chairman Khawaja Haji Muhammad Jaffery and the Company through its partners Muhammad Rafiq Memon alias Rafiq Ahmad Qadir and Abba Hussain, the latter was to act as Manager for the building project. While awarding the contract, Khawaja Haji Muhammad Jaffery, the then Chairman, since dead, allegedly extended undue favour to the Company; which later on managed to purchase the property for a paltry sum of Rs,1,39,00,000 against its estimated market value of Rs,3,00,00,000, which caused huge loss to the Bank. According to Accountability Reference, Khawaja Haji Muhammad Jaffery, being Registrar of the Cooperative Societies was Chairman of the Bank by virtue of his official position, who in collusion and connivance with Muhammad Hanif, Muhammad Rafiq, accused and Abba Hussain, an approver, misused his authority in the tainted deal and caused colossal loss to the Bank while the said accused persons also obtained illegal gains from this shady contract, therefore, they were liable to be punished under section 10 of the National Accountability Bureau Ordinance (hereinafter to be called the Ordinance). Muhammad Rafq, accused was arrested on 6-10-2001 pursuant to the warrant of arrest issued by the NAB Authorities and After completion of procedural requirements and investigation, Accountability Reference No,1 of 2001 was filed against Muhammad Hanif, Muhammad Rafiq and Abba Hussain in the Accountability Court at Karachi on 31-12-2001. Abdul Qadir, father of Muhammad Rafiq alias Rafiq Ahmad Qadir accused, filed Constitution Petition No, 2266 of 2001 before the High Court of Sindh, Karachi seeking declaration that initiation of proceedings against his son Muhammad Rafiq detenu under the Ordinance and all subsequent acts pursuant thereto including his arrest and detention were illegal and void and as such, the entire proceedings were liable to be quashed and direction was sought against the respondents to release the detenu forthwith. The Constitution petition was treated as bail application and was registered as Criminal Bail Petition No,1605 of 2001. Muhammad Hanif and Muhammad Ashraf, two accused of the same transaction were allowed bail by the learned Division Bench of the High Court of Sindh, Karachi on 26-10-2001 by converting their Constitution Petition No,2219 of 2001 into bail application. The bail application of the petitioner was dismissed by the same learned Bench vide its judgment dated 20-11-2001, impugned herein.
3. Learned counsel for the petitioner contended that Muhammad Rafiq detenu, son of the petitioner, was not informed about the grounds and substance on the basis of which he was taken into custody by the NAB Authorities whereas under section 24(d) of the Ordinance, it was mandatory that on arrest of the accused of an offence by the NAB under the Ordinance, he has to be informed as soon as may be, of the grounds and substance on the basis of which he was arrested and was to be produced before the Court established under the Ordinance within a period of 24 hours of his arrest. As such not only the mandatory provision of the Ordinance was violated by the NAB by non-informing the detenu as soon as may be, of the grounds and substance on the basis of which he was arrested, but his arrest and detention was also violative of Article 10 (1) of the Constitution of Islamic Republic of Pakistan. 1973, hence was unlawful. He further contended that the allegations against the accused were that he alongwith other co-accused, in connivance and complicity of the Government Officials, gained illegal monetary benefits and caused huge loss to the Bank but strangely enough not even a single holder of public office, has been nabbed under the Ordinance. Although the Ordinance primarily deals with the holders of public offices yet the proceedings were initiated against the private citizens against whom no, prima facie, case has been made out. It was submitted that advertisements were published in various newspapers inviting proposals from experienced developers/builders for construction of the building on vacant plots/old building sites under the self-financing scheme and to rent out the same for generating money. In response thereto, number of offers/proposals were received, out of which the offer of the Company being most suitable, was accepted by the Board of Directors of the Bank after processing it in accordance with the Rules/Regulations and thereafter agreement dated 1-4-1992 was executed between the Bank and the Company in accordance with law as such, no illegality has been committed. On completion of the construction work of the building, the tenants were inducted by Abba Hussain as per agreement. In 1996, the Board of Directors of the Bank decided to sell the building to the Company, consequently, it was sold to the Company which was purchased by Abba Hussain as its proprietor vide registered sale-deed dated 2-4-1997. He submitted that after the award of contract of construction of the multi-storied building to the Company, Muhammad Rafiq detenu surrendered his rights of partnership in the construction work to Abba Hussain vide surrender deed dated 23-5-1992, hence, he had no right or interest in the Company and the building project. Subsequently, the building was sold by the Bank to the Company through Abba Hussain as its sole proprietor, wherein Muhammad Rafiq detenu had no interest. It was next submitted that Muhammad Hanif and Muhammad Ashraf co-accused of the present accused in the same Reference, have already been allowed the concession of bail, therefore, on the basis of rule of consistency he was also entitled to the same treatment. It was lastly contended that no credence can be given to the statement of Muzaffar Ali Zafar recorded under section 161, Cr.P.C. Who was a party in awarding the contract of construction and the transaction of sale -of the buildings as one of the functionaries of the Bank because the Bank functionaries were the real accused who caused loss to it, therefore, on the basis of his statement bail could not be refused to the detenu in preference to the documentary evidence.
4. Conversely, the learned Deputy Attorney-General and the learned counsel representing other respondents submitted that the accused was arrested under section 24 of the Ordinance for offence as specified in section 9 read with the Schedule thereof, punishable under section 10 of the Ordinance. After completing legal formalities as required under section 18 of the Ordinance, he was produced before the competent Court and remand was obtained as required under section 24(d) of the Ordinance, therefore, compliance of the said provisions of law has been made. At the time of taking remand, the accused came to know of the offence in which he was involved, hence, no violation of section 24(d) has been made. He further submitted that the accused committed the acts of corruption and corrupt practices in connivance with the public servants/holders of public offices and caused substantial loss to the Government exchequer. He argued that it is absolutely incorrect that the accused ceased to have any interest in the Company after executing alleged Surrendered Deed. On the contrary, he and Abba Hussain as partners of the Company executed agreement of sale on 5-11-1996 with the Bank for the purchase of Bank building alongwith the plot and he also signed the sale-deed dated 28-3-1997. Thereafter, on 5-5-1997 Abba Hussain executed General Power of Attorney regarding the said property in favour of the present accused, which was registered on 6-5-1997 empowering him to do all acts and for all intents and purposes, the Power of Attorney is virtually a transfer deed which is still valid and thus the accused is the real owner of the property. He contended that the accused managed and manoeuvred to purchase the property for a throw away price of Rs,1,39,00,000 against its market value of Rs,3,00,00,000, therefore, he, in connivance with the holders of public office, committed offence which falls within the scope of section 9 punishable under section 10 of the Ordinance. He submitted that as far as the case of the present accused is concerned, it is distinguishable from the. Case of Muhammad Hanif and Muhammad Ashraf, his co-accused, therefore, the rule of consistency was not applicable and he was rightly refused bail by the High Court.
5. We have duly considered the arguments of the learned counsel for the parties and have gone through the record of the case with their assistance. It is evident from the record that advertisements were published in the press on 6th and 9th of May, 1991 inviting tenders/proposals from the experienced developers/builders to design, build and rent out constructed buildings in place of the following vacant plots/old buildings under self-financing scheme with an ultimate aim of generating maximum income:--
(1) Plot No,21-SR-3, Serai Quarters, Karachi Area, 1005 sq.Yds.
(2) Plot No,1355/Ward "'F" Opposite. Radio Pakistan, Court Road, Hyderabad, Area 1166 sq.Yds.
(3) Plot No,979 Tenure "A" Ward "B" Area 138 sq. Yds. Marich Bazar, Sukkur.
(4) Plot No,1539-C Street 1537/2 Ward "S" Mazar Qaim Ali Shah Bukhari, Larkana. Area 1222 sq. Yds."
' In response to the advertisements, four builders/developers offered their proposals which came under consideration before the sub-committee constituted by the Board of Directors in their meeting held on 21-10-1991. The minutes of the meeting of the Sub-Committee dated 31-12-1991 with regard to the acceptance or otherwise of the offers, read as follows:-- ' "In this connection the participants were apprised, of the position through a consolidated statement Annexure (A), pertain to four different offers from parties namely: ' Messrs Ghulam Muhammad & Company, A-177, Block "C", Unit No,6, Latifabad, Hyderabad.
' K.M. Safdar & Co. C-36, Khawaja Street, Station Road, Sukkur.
' Messrs Star Builders, Mehran Manzil, 2nd Floor, Room No,9, Zakria Lane Mithadar, Karachi.
' Awami Builders, 199-A, Sindhi Muslim Cooperative Housing Society, Block "A", Karachi.
' No representative of M/s. K.M. Safdar & Co. And Star Builders appeared before the sub-committee for further negotiation though invited in the last meeting. However, the sub-committee first negotiated with the representative of Awami Builders to enhance his offer from Rs,4.6 million as premium but refused bluntly. In the end proposal of M/s. Ghulam Muhammad & Co. Was discussed and negotiated further with his representative who agreed to raise his offer from Rs,4.5 million to Rs,4.8 million as premium payable to bank plus Rs,0.2 million to meet the expenses for removal of encroachments. The sub-committee after thorough discussion decided to recommend to the Board the proposal of M/s. Ghulam Muhammad & Co. 177-Block "C" Unit No,6, Latifabad, Hyderabad on following terms and conditions in addition to the above:
(1) Construction will be 'A' Class at his expenses/cost risk.
(2) Construction will consist of a basement for parking, ground floor for shops plus 4 floors for offices.
(3) The first floor/Mezzanine shall have to be reserved for Sindh. Provincial Cooperative Bank Ltd.
Etc. Without any compensation duly partitioned as pre-requirement of the management.
(I) Mode of payment shall be as under:- ' Down payment alongwith offer (Draft DDA 624811/129 of United Bank Limited, Umed Ali Road, Hyderabad Rs,.0.1 million received.
(II) At the time of execution of agreement and at the time of handing over the possession Rs,0.9 million.
(III) At the time of approval of building plan Rs,0.5
(IV) Balance Rs,3.3 million shall be paid in six equal quarterly instalments as per detailed agreement which will have to be executed by party before delivery of the vacant possession.
(4) That construction shall be completed within a maximum period of 18 months after the approval of building plan.
(5) That party shall furnish Insurance Guarantee (Adamjee Insurance Co.) for smooth completion of the project to cover the entire cost of construction plus remaining amount of premium.
(6) That party shall make alternative arrangement for accommodation for the Bank office at his cost till such time the building is completed and 1st floor of the building handed over to the bank duly completed in all respects.
(7) Other terms and conditions would be the same as laid down in their offer letter regarding rent of at least Rs,70,000 (sic) p.m.
(8) The pro forma tenancy agreement with the tenants must provide for contribution that the maintenance cost of the building shall be borne by the tenants duly pooled together and will be spent with mutual consultation of the tenant and landlord.
' The meeting of Sub-Committee was terminated with the vote of thanks to and from the Chair."
(Sd.) (Sd.)
(KHAWAJA H.M.JAFERI) (SHAHID NAZIR AHMED), ' REGISTRAR SECRETARY, ' COOPERATIVE 'SOCIETIES, FOOD AND COOPERATION ' SINDH ' The minutes of meetings of the sub-committee held on 15-12-1991, 23-12-1991 and 31-12-1991, formed by the Board of Directors, were placed before the meeting of the Board of Directors of the Bank held on 15-1-1992 and the following minutes were recorded regarding construction of Bank building at Sarai Road, Karachi:- ' "The Board of Directors considered the recommendations of subcommittee and resolved as under: ' "Resolved that the recommendations of sub-committee regarding proposal of M/s. Ghulam Muhammad & Co. 177-A, Block 'C' Unit No,6, Latifabad, Hyderabad for construction of bank building be and is hereby approved in favour of M/s. Ghulam Muhammad & Co. Against the terms and conditions recommended by the committee appointed by the Board of Directors."
' Consequently, on 1-4-1992 an agreement was executed between the Bank through its Chairman Khawaja H. M. Jaffery and the Company through its partners, Muhammad Rafiq and Abba Hussain.
Thereafter, on 23-5-1992 Muhammad Rafiq Memon, detenu surrendered his rights of partnership in the building Project in favour of Abba Hussain.
6. Insofar as construction of the building on the site is concerned, the allegations in the Reference are that construction work was not completed within the stipulated period and the terms of agreement with regard to mezzanine/1st Floor which was to be reserved for the Bank and the basement which was to be used as car parking were violated by the Company. Another allegation is that the property was sold to the Company at a throw away price of Rs,1,39,00,000 against its market value of Rs,3,00,00,000. As far progress in construction work of the building was concerned, the Board of Directors of the Bank, in their meeting held on 24-4-1993, constituted a committee to keep constant watch over the progress of construction work of the Bank building and also to enSure the standard of material used in the construction. On 27-2-1994, an Addendum to the Agreement dated 1-4-1992 was executed between the Bank and the Company and following clauses were added:-- ' "Now the second party (Company) having gone through the contents of above terms and conditions and having understood the intention of the first party (Bank) agrees and confirms as under:--
(1) That the second party shall try its best to complete the work within the stipulated time (force majur, reasons beyond control, act of God and Building Control Authority's instruction excepted). In case the second party fails to complete the construction of the building within the stipulated time the second party shall compensate the first party by paying balance amount of the rent which the first party is to receive under clause 10 of the Agreement dated 1-4-1992 to cover the loss on account of rental earnings. In addition to this the second party shall also continue to pay the rent of the premises being used by the first party for their offices presently.
(2) That the second party shall deposit the original documents of title of their immovable properties which shall be sufficient to cover the balance amount of the premium of Rs,50 lacs.
(3) That the second party also agrees that it shall have no right to effect any transfer of any tenancy of shop/office after the first tenant is inducted in any shop/office and all subsequent transfer shall be done by the first party only."
' On 2-7-1994, the Company wrote a letter to the Bank stating that since Karachi Development Authority declined to approve mezzanine floor in the building plan in which Bank offices were to be accommodated as per agreement hence it proposed to construct 5th Floor to accommodate Bank staff and provide lift at its own cost or, in alternate, to pay Rs,20,00,000 to the Bank in lieu of mezzanine floor. In another letter dated 16-10-1994, the Company put forward certain other proposals which were considered by the sub-committee in its meetings held on 21-9-1994, 3/4-10- 1994, 18-9-1995, 14-4-1996 and finally matter was placed before the Minister for Cooperation who recorded his note as under:-- ' "The matter has been discussed with the legal adviser para. 3 indicates that deal was made under pressure. However, it appears that no alternative other than the decision taken by Board is left out.
While enforcing the decision of the Board total amount should be recovered fully and invested productively in the interest of Bank."
' Thereafter, the Board of Directors decided to sell the building to the Company. In this regard the Bank addressed a letter No,BK/Bldg/60 dated 9-7-1996 to the company which reads as follows:-- ' The Sindh Provincial Cooperative Bank Ltd. (Registration No,2228 of 1919) (Registered under the Cooperative Societies Act) Head Office Hyderabad Central Office, Place PECHS, Karachi, dated July 9, 1996 ' Ref. No,Bk/Bldg/60 ' M/s. Ghulam Muhammad Khan & Co., Karachi ' Dear Sir, ' Sub: DISPOSAL OF NEWLY CONSTRUCTED BUILDING ON SERAI ROAD, KARACHI ' The subject-matter was placed in the meeting of the Board of Directors held on 3-7-1996.
' The Board of Directors considered the recommendations of the subcommittee having arrived at after their deliberations held on 17-3-1996, 28-3-1996, 11-4-1996 and 16-4-1996.
' At the length the Board of Directors decided to sell the building to you in terms of recommendations of sub-committee contained in their minutes finally on 16-4-1996:
(1) That you will pay a lump sum price of Rs,13.9 Million including Rs,2.9 Million already paid as premium and Rs,1 Million at the time of vacating the old building.
(2) That the net remaining amount of Rs,10 Million is payable within period of 45 days from the date of Execution of Agreement failing which a penalty of Rs,4,160 per day which shall not be extended beyond a period of one month thereafter this offer would cease to be valid.
(3) That you would continue to pay the rent of Najma Manzil till registration of Conveyance Deed of the new building.
(4) That the expenses towards Registration and all other dues and Taxes payable on account of new building would by borne by you.
(5) That you will submit draft agreement for vetting of our legal advisor within a period of 10 Lays.
Yours faithfully, (MAZHAR ALI MEMON), General Manager."
' The delay in completion of construction of the building, the violation of Agreement in non- accommodating the bank in mezzanine/first floor and nonuse of basement as Car Parking are not solely attributable to the Company but the Bank was also equally responsible as it had constituted a Committee to keep constant watch over progress of construction and the standard of material used in the building. According to the provisions of Addendum, if there was any violation of Agreement clause dated 27-2-1994, the Bank should have pointed out the same to the Company at the earliest opportunity and by keeping their eyes shut on violation of Agreement, they, became a party to such violations. The perusal of the above letter would also show that Board of Directors of the Bank decided to sell the building to the Company on its own terms and conditions, as such, the Company or its. Partners cannot be accused for causing loss to the Bank as it, on the acceptance of the terms and conditions of the Bank, purchased the building through Abba Hussain, its proprietor. The record suggests that the loss to the Bank, if any, was caused by the Board of Directors itself who decided to sell the building to the Company at the price fixed by it. It may be mentioned here that the Bank is registered under Sindh Cooperative Societies Act, 1916 (since repealed under the Act of 1925) and under Bye-law No,38 of its Bye-laws, the power to do entire business and affairs of the Bank including its management and transactions, vested in the Board of Directors as such, it was obligatory on it to safeguard and protect the interest of the Bank.
If any loss has been caused to the Bank in building project or in sale transaction, its responsibility primarily lies on its Board of Directors as it was in a dominating position either to award or refuse the contract of construction and in case the Bank was likely to suffer loss, it should not have offered the sale of the property to the Company on the price fixed by Board itself. Whereas the position of the Company was secondary as it was firstly a seeker of contract of construction and secondly, a purchaser of the building on the terms and conditions of the Bank. In these circumstances it looks very strange and surprising that those who were at the helm of affairs and authorities, have not been made answerable but those who were subject to authority have been nabbed.
7. As regards the contention of the learned counsel for the petitioner that Muhammad Rafiq, the detenu was not informed about the grounds and substance on the basis of which he was arrested, thus, the non-compliance of the mandatory provisions of section 24(d) of the Ordinance has rendered his arrest and detention invalid, has force. Learned Deputy Attorney-General did not address any argument on this aspect of the case, however, in parawise Comments of respondents Nos.2 and 3 (NAB & RAB) to the writ petition of the petitioner, it has been submitted in para. (i) of the grounds as under:-- "(i) That in respect of averments in ground No,1, it is submitted that the detenu has been arrested in a substantive offence and has been produced in the competent Court of law which has regulated his arrest and the order by the competent Court, remanding the detenu in custody, has not been challenged. It may be mentioned that the offences under the NAB Ordinance are punishable with imprisonment for 14 years and fine or both and, as such, the same are covered under the prohibition clause. The detenu is in remand under the NAB Ordinance and the remand, on valid reason, could be extended for a maximum period of '90 days. As such, the petition, as filed, seeking bail, is not maintainable. The noncompliance of section 24(d) of the Ordinance has been impliedly complied with as the remands are being sought from the competent Court and the detenu is in the knowledge of the offence in which he is involved. In any case, such non-compliance has been fully net with when the detenu has been produced in the Court. The detenu has been fully informed about the reasons for his arrest.
(ii)
' It would be appropriate to reproduce the relevant clause of section 24 of the Ordinance requiring NAB to inform the accused as soon as may be, of the grounds and substance on the basis of which, he is arrested:-- "24(a) ...
(b).
(c)..
(d) Notwithstanding anything contained in the Code, where the holder of a public office so or any other accused of an offence is arrested by NAB under this Ordinance, NAB shall, as soon as may be, inform him of the grounds and substance on the basis of which he has been arrested and produce him before the Court established under this Ordinance within a period of twenty-four hours of arrest excluding the time necessary for the journey from the place of arrest to the Court and such person shall, having regard to facts and circumstances of the case, be liable to be detained in the custody of NAB for the purpose of inquiry and investigation for a period not exceeding ninety days (and the Court may remand an accused person to custody not exceeding fifteen days at a time and for every subsequent remand the Court shall record reasons in writing copy of which shall be sent to the High Court.)
(e)..
Conveyance of the grounds and substance on the basis of which the accused is arrested, is the first essential ingredient of the above provisions of law, which is mandatory in nature and has to be complied with in letter and spirit as it is based on the Constitutionally guaranteed right providing safeguards as to arrest and detention of a person embodied in Article 10 of the Constitution of Islamic Republic of Pakistan, which reads as follows:-
10. Safeguard as to arrest and detention.--(1) No person who is arrested shall be detained in custody without being informed, as soon as may 'be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended-by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.
(4)
(5)
(6)
(7)
(8)
(9)
8. The first and foremost requirement of the aforesaid Constitutional provision is that any person who is arrested and detained has to be informed, as soon as may be, of the grounds of his arrest and detention and no person can be arrested and detained in custody without complying with the above requirement. The second requirement is that no person so arrested or detained can be denied the right to consult a legal practitioner of his choice for his defence. Non-compliance of the above requirements would be violative of the fundamental rights and Constitutional guarantees.
Requirement of clause (2) of the said Article is that the person arrested and detained in custody has to be produced before a Magistrate within 24 hours of his arrest excluding the time spent in journey, for obtaining a remand. Clauses (1) and (2) of Article 10 deal with punitive arrest and detention and restrictions have been imposed on the law making bodies not to make any law beyond the limits of the said provisions. The provisions of section 24(d) of the Ordinance with regard to the arrest and detention of an accused and his production before a Magistrate or competent Court within a period of twenty-four hours for remand are synonymous with the provisions of Article 10 (1) and (2) of the Constitution which provide safeguard and protection to personal liberty as the liberty of a person in a State, is inviolable.
9. The expression 'as soon as may be' used both in Article 10(1) of the Constitution as well as in section 24(d) of the Ordinance means as soon as possible, as it is the first right of the person arrested and detained to know in black and white, as soon as possible, the grounds and substance on the basis of which he has been arrested to enable him to be defended by a legal practitioner of his choice. The second right of the arrested and detained person is that he has to be produced before a Magistrate or the competent Court within 24 hours of his arrest for remand after excluding journey time, so as to ensure his protection. In the present case, no doubt, the detenu was produced before the competent Court within 24 hours but the first condition of informing him, as soon as may be, of the grounds and substance on the basis of which he was arrested, has not been complied with. The noncompliance of the aforesaid provisions of the Constitution and the Ordinance would render the arrest and detention of the detenu illegal.
10. The phrase 'as soon as may be' has also been used in the laws relating to preventive detention but in such laws it is to be construed with reference to period prescribed therein for communication of the grounds to the arrested and detained person on the basis of which he is arrested. In case of Government of East Pakistan v. Roshan Bijaya Shaukat Ali Khan (PLD 1966 SC 286) this Court observed:-- ' "Consequently there appears to be some force in the contention raised by Mr. Mahmud Ali, on behalf of the respondent, that section 41 is not a law providing for preventive detention within the meaning of that phrase occurring in sub-para. (5) of para. 2 of the Fundamental Rights. If that contention is upheld, action taken under it must, in the alternative be judged in the light of sub- paras. (1) and (2) of para. 2 of the Fundamental Rights. These sub-paragraphs lay an obligation on the authority making the arrest or detaining a person in custody, to produce him before the nearest Magistrate within a period of 24 hours of the arrest, excluding the time necessary for the journey from the place of arrest, to the Court and to inform him about the grounds of arrest, as soon as may be. These grounds have to be communicated to the person concerned within the period mentioned in sub-para. (2), as otherwise the arrested person would not be able to make a representation in his defence, when he appears before the Magistrate. In the present case, neither the detenu was produced by the arresting inspector before a Magistrate nor was he informed by him of the grounds of his arrest. The action taken, therefore, on this alternative view, transgressed the clear provisions of sub-paras. (1) and (2) of para. 2 of the Fundamental Rights and could not be upheld as legal.
' So, from whichever point of view the matter is looked at, the initial arrest and detention in custody are found to have been vitiated by illegality."
It is fundamental right of a person who is arrested or detained to know, both under the punitive as well as under the preventive laws, about the grounds and substance in black and white, on the basis of which he was arrested and detained. It is also his right to consult a legal practitioner of his choice for his defence and, he has to be produced before a Magistrate within 24 hours excluding the time of journey for obtaining remand.
11. With regard to the application of the rule of consistency to the facts of the present case, we find from the record that the detenu is a partner of the Company like Muhammad Hanif who has been allowed bail by the same Hon'ble Bench, therefore, his case is at par with him hence, rule of consistency would be applicable to his extent, whereas the case of Muhammad Ashraf is distinguishable from the case of the present detenu.
12. As far as the statements of Mazaffer Ali Zafar recorded under section 161, Cr.P.C. And that of Abba Hussain, an approver are concerned. We would refrain to dilate upon the same lest it may not prejudice the case of either party. The documentary evidence as already discussed above would show that the offence could not be committed exclusively by the Company without the connivance of the Board of Directors of the Bank, against whom no action has been taken so far.
13. In view of the above, we are of the view that the detenu has made out a case for his release on bail and moreso when it is settled law that bail cannot be withheld as a punishment and he cannot be kept in jail for an indefinite period. Consequently, we convert this petition into appeal, allow the same, set aside the impugned judgment of the High Court and order that Muhammad Rafiq, the detenu son of the petitioner be released on bail in the sum of Rs,2,00,00,000 with two sureties each in the like amount to the satisfaction of the trial Court.
14. On 4-2-2002, Muhammad Rafiq, the detenu was allowed bail through a short order. The above are the reasons in support of the said short order, which are of tentative nature and shall have no bearing on the merit of the case.