JAVED IQBAL, J.---This petition for leave to appeal is directed against order dated 27-11-2001 passed by Lahore High Court, (Rawalpindi Bench) whereby application preferred under section 497(5), Cr.P.C. Seeking cancellation of bail extended in favour of respondent No,1, namely, Agha Raza Abbas Qazilbash by learned Sessions Judge, Islamabad, by means of order dated 3-11-2001 has been rejected, hence this petition.
2. Briefly stated the facts of the case are that F.I.R. Bearing No,49, dated 9-3-2000 was registered with Police Station Kohsar, District Islamabad which is reproduced hereinbelow for ready reference:-- "To the Inspector-General of Police, Islamabad, F-8 Markaz, Islamabad. Dear Sir, you are hereby informed that Housing Foundation had made a request vide letter of even number dated 31-8-1998 to the then I.-G. Police, Punjab for registration of a case (copy enclosed).
Brief facts of the case are that Federal Government Employees Housing Foundation, a Company Limited by guarantee registered under Companies Ordinance, 1984, is functioning under the administrative control under the Ministry of Housing and Works, Government of Pakistan. The Housing Foundation had entered into an agreement with M/s. Universal Enterprises for the purchase of 2000 Kanals of land at Raiwind Road, Lahore on 18-7-1994. The said agreement was executed in Islamabad. Copies of the agreement and partnership deed of M/s. Universal Enterprises are enclosed.
2. As per agreement. M/s. Universal Enterprises had to provide land free from all encumbrances and for this purpose an amount of Rs.37.80 million was given to them in advance as earnest money for the purchase of said land. Its partners included M/s. Zahid Shafiq son of Shafiq Ahmad resident of 101-J, Gulberg-III, Lahore and Agha Raza Abbas Qazilbash son of Sardar Baqar Ali Qazilbash Resident of 31-Empress Road, Lahore. An addendum to the agreement (copy enclosed) was subsequently drawn with M/s. Universal Enterprises on 26-4-1995 whereby the scope of agreement for purchase of land was reduced from 2000 to 1000 Kanals. It transpired that the said accused had no intention and capacity to procure the said land and through manipulation, misrepresentation and fraud allured the Foundation to enter into the contract and through this process fraudulently procured an amount of Rs,37.80 million which have swindled and till to-date failed to provide an inch of land.
3. It is thus evident that Zahid Shafiq and Agha Raza Abbas Qazilbash have cheated this Organization by committing fraud and criminal breach of trust resulting in misappropriation of a huge amount of Rs,37.80 million.
4. In response to our letter dated 31-8-1998 the Punjab Police has informed vide their letter dated 19-10-1999 (copy enclosed) that the matter was referred to DSP/Legal Lahore for his legal opinion and the opinion given by him is "the contents of the petition prima facie attract the provision of section 406, P.P.C. A criminal case can be registered at the Police Station in the jurisdiction whereof the agreement was executed."
5. The matter was further referred to the Law and Justice Division with the approval of Minister for Housing and Works to seek their advice on the point whether in the presence civil litigation with M/s. Universal Enterprises the Housing Foundation can register a criminal case against them. The Law Division has now advised (copy enclosed) that Housing Foundation may proceed for registration of criminal case as examined and advised by the police.
6. In view of the position stated above, I shall be grateful for your personal indulgence in connection with registration of a criminal case against the said culprits in the Police Station having the jurisdiction of the Shaheed-e-Millat Secretariat, China Chowk, Islamabad, because the agreement was executed in this office. Encl: As above. Yours faithfully (Sd).
(Malik Zafar Abbas). Law Officer."
3. After registration of case Agha Raza Abbas Qazilbash (respondent No,1) applied for bail before arrest before learned Sessions Judge, Islamabad, which was granted by means of order dated 3- 11-2001. Being aggrieved an application for cancellation of bail was moved on behalf of petitioner which was rejected vide order impugned.
4. Heard Syed Asghar Hussain Sabzwari, learned Advocate Supreme Court on behalf of petitioner who mainly contended that the order passed by learned Sessions Judge, Islamabad dated 3-11- 2001 is in violation of the principles as laid down by this Court concerning grant of pre-arrest bail which resulted in serious miscarriage of justice. It is next contended that an amount of Rs,37.8 million was given to the respondent in advance as earnest money for the purchase of land to be handed over to the Federal Government Employees Housing Foundation but neither the land could be handed over nor the amount was returned but on the contrary Federal Government Employees Housing Foundation has been involved in an endless litigation. In this regard he referred to quashment proceedings and civil suit instituted by respondent No,
1. It is also contended that co- accused has absconded and reportedly proceeded abroad.
5. Syed Ijaz Ali Akbar Sabzwari learned A.S.C. Appeared for respondent No,1 and vehemently controverted the view-point as canvassed on behalf of Federal Government Employees Housing Foundation and contended that matter falls within the realm of civil dispute which is presently pending adjudication and there is no justification whatsoever to cancel the concession of bail already granted as it would serve no useful purpose because the petitioner had remained associated with the investigation after registration of case. It is next contended that some time may be given to honour the commitments made by the respondent enabling him to finalize purchase of land. He further substantiated his arguments by informing that negotiations are in hand between Agha Raza Abbas Qazilbash (respondent No,1) and Federal Government Employees Housing Foundation to sort out the problems mutually. He conceded that a suit for damages has been tiled in the competent Court of civil jurisdiction.
6. We have carefully examined the respective contentions as agitated on behalf of the parties in .The light of relevant provisions of law and record of the case. The order passed by learned Sessions Judge, Islamabad, dated 3-11-2001 has been perused with care and caution. We have also examined the order impugned. After a careful scrutiny of the entire record we are of the considered view that the principles as enunciated by this Court regarding grant of pre-arrest bail have not been kept in view by the learned Sessions Judge. The case was got registered by Federal Government Employees Housing Foundation which prima facie appears to be bona fide as an mount of Rs,37.8 million was handed over to the respondent who failed to honour his commitment and neither the land was made available nor the said amount returned. There is no element of unjustified harassm ent, false implication or ulterior motive either on part of prosecution or adversaries concerned, mala tides of intended arrest, false implication or ulterior motive in absence E whereof the question of grant of pre-arrest bail does not arise. In this regard we are fortified by the dictum laid down in cases titled Murad Khan v. Fazale-Subhan (PLD 1983 SC 82),'
Rao Qadeer Khan v. State (PLD 1981 SC 93), Sardar Muhammad v. State (PLJ 1978 SC 203), Muhammad Shafiq v. State (1982 SCMR 384), Muhammad Azam v. State (1980 SCMR 269), Zahur Illahi v. State (1981 SCMR 935). Hidayat Ullah Khan v. The Crown (PLD 1949 Lahore 21). (We are conscious of the fact that the dictum laid down in Hidayat Ullah Khan's case (supra) was reviewed by this Court in the case of Crown v. Khushi Muhammad reported in PLD 1953 FC 170 but subsequently in the case of Sadiq Ali v. State reported in PLD 1966 SC 589, the dictum as laid down in Hidayat Ullah Khan's case (supra) was kept intact), Jehandad v. Altaf Hussain (1995 SCMR 863), Zia-ul-Hassan v. State (PLD 1984 SC 192), Bibi Rani v. Najabat Ali (1994 SCMR 2277), Muhammad Safdar v. State (1983 SCMR 645), Muhammad Arshad v. State (1996 SCMR 74). A prima facie case is made out against the respondent by whom a huge amount of Rs,37.8 million has been misappropriated and there is no ray of hope in near future that land in question would be handed over to the Federal Government Employees Housing Foundation. The learned High Court has not examined all these aspects and decided the matter in a casual and cursory manner by ignoring the principles as laid down by this Court concerning grant of pre-arrest bail.
7. In the light of foregoing discussion the only irresistible conclusion would be that neither the learned Sessions Judge nor High Court have power to extend the concession of bail before arrest unless all the mandatory prerequisites and conditions laid down by this Court from time to time and mentioned in the preceding paragraph are satisfied which aspect of the matter has been ignored by the learned High Court. In such view of the matter this petition is converted into appeal and allowed. The order impugned dated 27-11-2001 passed by learned High Court being contrary to law and facts is hereby set aside.
The concession of pre-arrest to respondent No,1 namely Agha Raza Abbas Qazilbash is declared to be unlawful. The pre-arrest in favour of Agha Raza Abbas Qazilbash is cancelled. He is further directed to deposit his passport in the office of Registrar of this Court forthwith and his name be ,placed in Exit Control List and a copy of this order be made available to the authorities concerned as the co-accused has proceeded abroad. Respondent No,1 namely Agha Raza Abbas Qazilbash shall surrender to the proper custody. These are the reasons for short order dated 5-4-2002.