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Criminal Miscellaneous No. 2465-B of 1983, decided on 28^th November, 1983.

-- S. 497 (5) read with Penal Code (XLV of 1860), Ss. 409 & 468 and Prevention of Corruption Act (11 of 1947), S. 5-Bail granted by lower Court-Petition for cancellation filed in High Court Objection that such petition should have been filed in Court granted bail, held, could be valid only if cancellation of bail sought on new ground-Genesis for rule.

The genesis for the rule is that no new thing be agitated in a higher Court and that it should first be canvassed before the Court granting the bail. It is indeed a very salutary principle, for, the whole hierarchy of Courts is supposed to be kept abreast of all attending circumstances to administer justice. Conversely, to conceal something from the lowest Court and to add it up at a later stage will deprive the first-mentioned Court of its own appreciation and coming to a decision after considering the entire milieu. Otherwise, patch-work here and there was likely to confuse and in fact mislead the Courts.

Mirza Khan v. Lai Khan and another 1976 P Cr. L J 324 ; Ghulam Qadir v. Jehangir and 3 others 1983 P Cr. L J 1372 ; Gushtasab Khan v. The Crown P L D 1956 F C 117 and Nazir v. Amir Din and another 1971 SCMR637ref.

--- S. 497 (5) read with Penal Code (XLV of 1860), Ss. 409 & 468 and Prevention of Corruption Act (II of 1947), S. 5-Bail granted by lower Court by a short order-Accused moharrir malkhana-Complaint filed by Superintendent of Police on allegations that accused procured orders for disposal of items like motorcycles from Magistrate on fake applications-Custody of such items admittedly lay on accused Recoveries yet to be made-Respondent not an ordinary accused and case called for pragmatic mode of investigation-Bail cancelled in circumstances.

Inayat Ullah Cheema for the State.

Munir Ahmad Bhatti for Respondent.

Date of hearing : 28th November, 1983.

This is an application for cancellation of bail of the respondent, who was erstwhile Moharrir Malkhana, Police Station Railway Police Lines, Lahore. He was allowed bail before arrest by Mehr Ghulam Rasool, Special Judge (Central) Lahore, vide his order, dated 29th April, 1982 in the following words :-

"Arguments heard. It is not denied that goods were destroyed/ disposed of under the orders of the Magistrate. Therefore, interim bail is confirmed."

2. At the outset, Mr. Munir Ahmad, learned counsel for the respon dent-accused took serious objection relying upon Mirza Khan v. Lai Khan and another (1976 P Cr. L J 324) and Ghulam Qadir v. Jehangir and 3 others (1983 P Cr. L J 1372), that the present petition for cancellation of the bail should have first been made to the lower Court itself and that its institution straightaway in the High Court was not countenanced.

3. Mr. Inayat Ullab Cheema, learned counsel for the State-petitioner did not accept the proposition without reservation. He contended that reference to the lower Court for the purpose was necessary only if the bail had been sought, to be cancelled on any new ground and that in this case he was seeking cancellation on the demerits of the case itself without employing any new ground. He submitted that the basic law on the point was provided in Gushtasab Khan v. The Crown (P L D 1956 F C 117), and Nazir v. Amir Din and another (1971 S C M R 637), which consistently ruled that where cancellation of bail was sought on any new ground, it had to be pressed first before the Court granting it.

4. Counsel tried to distinguish the authorities relied upon on behalf of the respondent on the ground that both of them were based upon the aforecited case of Nazir, which in its own place does require that any new ground in the matter be first agitated before the Court of the first instance.

5. I think the genesis the rule is that no new thing be agitated in a higher Court and that it should first be canvassed before the Court grant ing the bail. It is indeed a very salutary principle, for, the whole hierarchy of Courts is supposed to be kept abreast of all attending circum stances to administer justice. Conversely, to conceal something from the A lowest Court and to add it up at a later stage will deprive the first mentioned Court of its own appreciation and coming to a decision after considering the entire milieu. Otherwise, patch-work here and there was likely to confuse and in fact mislead the Courts.

6. Obviously, this was the principle enunciated by the Supreme Court in the authority referred to above and the same seems to be the grundnorm in the matter, I, therefore, feel constrained to disagree with the objection.

7. Coming to the intrinsic merits of the case itself, counsel submitted that the respondent being a responsible police official had been misappropriating valuable articles like motorcycles etc. under pretence of orders obtained by him on fake applications from the Ilaqa Magistrate. It was complained that the learned Special Judge was unduly swayed by the orders of the Magistrate, as those were not passed mindfully or taking into confidence the S. H. O. himself. According to counsel, those orders were manipulated with a design and were used as a shield to dishonestly misappropriate valuable articles. Lastly, it was pointed out that due to bail, the respondent did not associate himself with the investigation and the recovery of those items could not be so far effected.

8. Counsel for the respondent, on the other hand, urged that a presumption would arise that any magisterial order in this context had been obtained after observing all formalities and that the disposal of the property in compliance therewith, could not be easily questioned. He added that the respondent was still present either in the Thana or in the Police Lines and that there was no truth in the averment that he avoided being interrogated for the purpose of recoveries etc.

9. I think, the facts of the case deserved more than a two-line order from the lower Court. When the allegation is that the orders of the Magistrate were procured on fake applications, their worth or value had to be scanned. The responsibility of the safe custody of those items as case-property lay admittedly on the respondent-accused those was not difficult for him to have manoeuvred miscellaneous applications and obtained orders of the formal type about the disposal of such property. It needed a probe and also recovery of items like motorcycles etc. allegation is considerably serious against the respondent whose job was to assist the administration of justice rather become himself a thief. He was not an ordinary accused as the law expected of him exceptional care as to items lying in custodia legis. It involved betrayal of severe type. The complaint proceeded from a responsible Police Officer like S. P. and called for a pragmatic mode of investigation. I, therefore, accept tine petition and cancel bail of the respondent.

M. B. A. Bail cancelled.

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