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Criminal Bail Application No. 320 of 1969, decided on 1st September 1969.

S. 498‑Bail before arrest‑Prosecution case resting mainly on allegedly forget "bank account opening fin‑In"‑‑Allegation not finding arty support from record‑Accused, held, made out prima facie case to be entitled to bail before arrest.

S. 498‑/Jail before arrest‑High Court normally does trot directly entertain bail appli cation in first place‑Remedy before Court of Sessions must be exhausted first.

S. 498‑----Bail before arrest issuing of notice to prosecution hi bail applications particularly in those relating to bail before arrest without considering prima facie aspect of case‑‑May lead to arrest and harassment of deserving applicants‑Each application to be scrutinized to consider its merits and rejected instantly if Court not‑satisfied.

It is no doubt true that the Sessions Judge enjoys vast dis cretion in granting bail, but the question is if upon every application, and ‑particularly those applications in which bail before arrest is sought, he could properly issue notice to the prosecution without considering the prima facie aspect of the case. If the Sessions Judge was to act in this manner as a matter of course, it is quite likely that many deserving applicants might be subjected to arrest and harassment. In order to avoid such a result perhaps it would be more in accord with the principles of admin1stration of criminal justice that each application should be scrutinised to consider its merits and if the Sessions Judge is not satisfied he might reject it instantly so that the aggrieved person could seek, his remedy in the superior Courts without any let or hindrance.

Muhammad Ali Saeed, Haq Nawaz Raja and Mansoorul Arfin for Applicant.

Abdul Hafeez Memon, Assistant A.-G for the State.

Date of hearing : 1st September 1969.

These two applications are directed to secure bail before arrest for applicants S. Mazahir Hussain Naqvi and Shabeehul Hassan against whom a first information report was lodged at the Artillery Police Station for offence under sections 420 and 406, P. P. C. Both these applications would be disposed of together by the same order as they arise out of the same report.

Briefly stated the facts forming the background of the case are that complainant Mst. Syeda Saeeda Zehra Imam, the wife of late Ali Imam, received a cheque from Eastern Federal Insurance Company, Karachi for Rs. 2,04,600.00 after the death of her husband. In order to encash that cheque she is alleged to have opened a personal account with Standard Bank, Saddar Branch, Karachi. However, in due course she discovered that the two applicants in collusion with each other forged the original "bank account form" and inserted therein the name of S. Mazahir Hussain Naqvi, the father‑in‑law of the complainant, as joint account holder. The further allegation is that Mr. Naqvi withdrew large sums of money from that account and misap propriated it. The learned counsel for the parties and the learned Assistant Advocate‑General stated before me that applicant Shabeehul Hussan is the Manager and Assistant Vice‑President of the Standard Bank while S. Mazahir Hussain Naqvi is the father‑in‑law of the complainant.

The case of the applicants is that the bank account in question was originally opened jointly in the names of S. Mazahir Hussain Naqvi and the complainant and both were authorised to operate upon it singly. The further case of Mr. Naqvi is that under the influence of her mother, brother and other relations, the complainant started withdrawing large amounts from' the joint account and diverted it to her personal account. He, therefore, sent her a letter (a copy of which is on record) suggest ing the creation of a trust for his minor grand‑daughter (the only child of the complainant). To this letter the complainant replied through her Advocates (a copy of the letter is on record) accusing Mr. Naqvi that he in conspiracy with applicant Shabeehul Hassan had forged the "bank account opening form" and misappropriated large sums of money. Mr. Naqvi replied to this letter through his Advocate (a copy of which is on record) denying the various allegations. In his two letters Mr. Naqvi pointed out to the complainant that he had withdrawn from the joint bank account an amount of Rs. 1,91,000.00 and the same was invested in the account of his grand‑daughter (the only child of the complainant) m the same bank. Mr. Naqvi further informed her that since under the Shariat Law she was entitled to I/8th share in the total amount sufficient amount had been left in the joint account for her exclusive benefit.

The only question which requires consideration is whether the "bank account opening form" had been forged as alleged by the complainant. This question cannot be answered by this Court but all the same it has to be seen whether prima facie the allega tions of the complainant are well founded. For this purpose, the learned Assistant Advocate‑General placed before me the original "bank account opening form" and other documents. The form in question ex facie does not show any tampering nor does .it indicate if it had been forged. The learned Assistant Advocate‑General admitted that apart from the documents placed before me there was no other material which could prima facie support the allegations of the complainant.

As already pointed out Mr. Naqvi has not denied to have withdrawn the sum of Rs. 1,91,000.00 from the joint bank account. He has deposited this amount in the account of his grand daughter (the only child of the complainant) in a separate account maintained at the Standard Bank, Saddar Branch, Karachi. This position is not denied by the prosecution. It is also admitted that this account has since been frozen by the Bank Authorities in view of the accusation of forgery and misappropria tion against the applicants. In view of the documentary material it is also not the case of the prosecution that out of the amount withdrawn by him from the joint bank account, Mr. Naqvi has spent any amount on his personal account.

These being the facts on record, the question arises if prima facie case has been trade out against the applicants I have no hesitation that at least for the present this question must be answered in the negative. After all the case of the prosecution rests mainly on the "bank account opening form" which the ap plicants, in collusion with each other, has allegedly forged. This allegation does not find any support from the record. I am, there fore, of the view that the applicants have made out a prima facie case to be entitled to bail before arrest, and accordingly the interim, bail granted to them earlier would stand confirmed subject to the condition that each one of them would furnish an additional personal bond in the sum of Rs. 20,000.00 each to the satisfac tion of the trial Court. However, in case the investigating agency does come upon some evidence in due course it would be at liberty to move this Court for the cancellation of the bail of the applicants.

Before parting with this order, it may be mentioned that normally this Court does not, directly entertain bail applications unless in the first place remedy before the Court of Sessions is exhausted. These two applications were entertained as all exception to this rule because the applicants complained that without considering the prima facie aspect of their applications the learned Sessions Judge issued notice to the prosecution. The learned counsel for the applicants contended that this substantially amounted to refuse to exercise jurisdiction in matters of great urgency particularly when respectable citizens are accused of serious crimes. The contention appears to have force.

It is no doubt true that the learned Sessions Judge enjoys vast discretion in granting bail, but the question is if upon every application, and particularly those applications in which bail before arrest is sought, he could properly issue notice to the prosecution without considering the prima facie aspect of the case. I am of the view that if the learned Sessions Judge was to C act in this manner as a matter of course, it is quite likely that many deserving applicants might be subjected to arrests and harassment. In order to avoid such a result perhaps it would be more in accord with the principles of admin1stration of criminal justice that each application should be scrutinised consider its merits and if the learned Sessions Judge is not satisfied he might reject it instantly so that the aggrieved person could seek his remedy in the superior courts without any let hindrance.

Bail allowed.

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