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Criminal Miscellaneous No. 363-B of 1984, heard on 21st April 1984.

-- Ss. 497, 498 & 439-Penal Code (XLV of 1860), Ss. 409, 467, 468. 471, 218, 161/109 - Prevention of Corruption Act (II of 1947), S. 5(2)-Pre-arrest bail allowed by Senior Special Judge in deroga tion of law laid down by Superior Courts - High Court, while hearing Criminal Miscellaneous application, issued suo motu notice for cancellation of bail so granted.

--S. 497-Bail-Ocular, circumstantial and documentary evidence to prove allegations against accused persons collected by police-- Prosecution witnesses under Ss. 161 & 164, Cr. P. C. stating that accused demanded and accepted illegal gratification-Evidence to the effect that relevant record was destroyed by accused persons purposely in order to circumvent enquiry and scrutiny in matter also present-Some of offences with which accused persons charged falling within prohibitory clause of S. 497 - Reasonable grounds in view of material on record present to believe that accused persons had committed non-bailable offence-Plea of bail of such accused persons rejected.

-- Ss. 497, 498 & 439-Penal Code (XLV of 1860), Ss. 409, 467, 468, 471, 218, 161/109 --Pre-arrest bail, grant of---Suo motu notice of cancellation of bail by High Court-Grant of pre-arrest bail in absence of record and investigating officer----Prosecutor, perhaps being in league with accused had not brought to notice of Court evidence collected by Police against accused----Direct evidence of demand and acceptance of illegal gratification against accused available----Ample circumstantial and documentary evidence connecting accused with commission of offences with which they were charged available but Court in hasty manner without examining relevant record allowed bail on flimsy grounds-Plain reading of order of Court indicating that Court had not considered question of grant of pre-arrest bail in light of Murad Khan v. Fazle Subhan P L D 1981 S C 82 and Ali Muhammad v. Yasin 1981 S C M R 1139 --Court not adverting to main consideration for grant of pre-arrest bail i.e. male fide on part of police to cause irreparable injury to accused person's reputation and liberty-Even accused did not show any apprehension of their arrest on account of ulterior motives-Case, held, was not fit for grant of pre-arrest bail in circumstances-Bail so granted by Senior Special Judge Anti- Corruption, cancelled by High Court with observation that cancellation of, bail was without prejudice to decision which may be made in application for bail; after arrest moved by accused and that it would be open for them to move fresh application for bail as and when necessary.

Murad Khan v. Fazle-Subhan P L D 1983 S C 82 and Ali Muhammad v. Yasin and others 1981 S C M R If 39 fol.

Rana Abdul Rahim Khan and R. A. Ghori for Petitioners.

Tassaddaq Hussain Jillani, A. A. G., assisted by Moin-ud-Din Chaudhry for the State.

While hearing Criminal Miscellaneous No. 363-B/84 filed by Wazir Ahmad petitioner in a case under sections 409, 467, 468, 471, 218, 161/109, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947, registered at P. S. Anti-Corruption, Multan vide F. I. R. No. 48/83, dated 6th October, 1983 I found that pre-arrest bail was allowed to Muhammad Asghar Mehmood X E. N., Gulzar Muhammad and Muhammad Sadiq co-accused in derogation to the case law laid down by Superior Courts. A So, I issued suo motu notice for the cancellation of bail granted to them by Senior Special Judge, Anti-Corruption vide his order dated 26^th October, 1983. Muhammad Iqbal and Muhammad Ramzan have also applied for bail after arrest through Criminal Miscellaneous No. 375-B/84 and 364-B/84. I propose to dispose of these petitions and the suo mote notice by a single judgment.

2. The prosecution case is that in consequences of a source report received by the Director Anti-Corruption, Lahore, an enquiry was made against the accused persons on the allegation that an examination of Patwar was held at Damoki Bungalow, Tehsil Mailsi under the supervision of Muhammad Asghar Mehmood X. E. N. According to the record prepared by the Department, 847 candidates appeared in the said examination, out of whom 302 candidates were declared successful. Enquiry revealed that the names of the petitioners Wazir Ahmad, Muhammad Iqbal and Muhammad Ramzan and 3 others were not mentioned in the list of the candidates who appeared in the said examina tion but Muhammad Asghar Mehmood X. E. N. issued them Patwar SANADS dishonestly after having received Rs. 5,000 as illegal gratifica tion from each of them. Enquiry also revealed that he demanded and accepted Rs. 5,000 from successful candidate namely Haq Nawaz Patwari for handing over Patwar SANAD to him. It was also found that in order to give cover to his misdeed, he alongwith Gulzar Muhammad and Muhammad Sadiq respondents destroyed answer sheets of the examination. Further, he did not maintain the list or register of successful candidates which he was required to maintain under rule 8.12 of Manual of Adminis tration of Irrigation Department. The Anti-Corruption Committee recom mended judicial action against the accused persons whereon a case was registered against them at Anti-Corruption Police Station on 6th October, 1983.

The learned counsel for Wazir Ahmad, Muhammad Iqbal and Muhammad Ramzan petitioners contended that the main accused having been allowed pre-arrest bail, there was no legal justification to refuse bail after arrest to them; that there is no evidence against them and that the judicial confession allegedly made by Muhammad Iqbal petitioner having been recorded on Oath, cannot be used against any one.

4. Mr. Tassaddaq Hussain Jillani, the learned Assistant Advocate. General, submitted that the learned Senior Special Judge, Anti-Corruption granted pre-arrest bail to Muhammad Asghar Mehmood, Gulzar Muhammad and Muhammad Sadiq respondents in disregard of the principles laid down by the Superior Courts for grant of pre-arrest bail inasmuch as, the basic requirement for the same, i.e. male fide on the part of prosecution was neither alleged at the time of arguments before him nor the same was adverted to by the learned Senior Special Judge, Anti-Corruption. The learned Assistant Advocate-General further sub mitted that the pre-arrest bail cannot be claimed as a matter of right. In this connection, he has referred to 1981 S C M R 1139 and P L D 1983 S C 82. On merits, he stated that there is direct as well as circumstantial evidence to support the allegations against the accused persons.

Conversely, the learned counsel for the respondents supported the order of the learned Senior Special Judge, Anti-Corruption granting pre-arrest bail to the respondents. He submitted:-

(i) That the statements of Haq Nawaz Patwari and Faiz Bakhsh to the effect that Muhammad Asghar Mehmood X. E. N. had demanded and accepted Rs. 5,000 being belated one do not inspire confidence;

(ii) That there are discrepancies in the statements of Haq Nawaz and Faiz Bakhsh with regard to the person who actually paid the amount to Muhammad Asghar Mehmood.

(iii) That the proceedings against the respondents are, in fact, on account of male fide because the same are based on a source report which itself indicates rivalry among the employees of the department and that some one in order to humiliate the respon dents had given information to the Director.

5. I have considered the arguments advanced by the learned counsel for the parties with care. I find that the police had collected ocular circumstantial and documentary evidence to prove the allegations against the accused persons; that Haq Nawaz Patwari and Faiz Bakhsh P. Ws. in their statements recorded under sections 161 and 164, Cr. P, C. have stated that Muhammad Asghar Mehmood X. E. N had demanded and accepted Rs. 5000 as illegal gratification for issuing Patwar SANADS; that Aftab Ahmad S. D. O., Rana Sher Muhammad S. D. O., and Muhammad Akhtar, Deputy Collector had also supported the prosecution case; that the list of 847 candidates endorsed by Muhammad Asghar Mehmood X. E. N. does not contain names of Muhammad Ramzan, Muhammad Iqbal and Wazir Ahmad who subsequently obtained Patwar SANADS from respondent No. 1; that there is evidence to the effect that the list of successful candidates and the answer sheets were purposely destroyed in order to circumvent enquiry and scrutiny in this regard and that some of the offences with which the accused persons are charged with fall within the prohibitory clause of section 497, Cr. P. C. In view of material against accused persons, it cannot be said that there are not reasonable grounds to believe that the accused persons had committed any non-bailable offence. The plea for bail of Wazir Abroad, Muhammad Iqbal and Muhammad Ramzan is, therefore, rejected.

6. Coming to suo mote notice for the cancellation of bail given to Muhammad Asghar Mehmood, Gulzar Muhammad and Muhammad Sadiq respondents, I find;

(i) That the learned Senior Special Judge had granted pre-arrest bail in the absence of record and Investigating Officer.

(ii) That the learned Prosecutor was perhaps in league with the respondents as he did not bring to the notice of the learned) Senior Special Judge the evidence collected by the police against the respondents.

(iii) That there was direct evidence of demand and acceptance of illegal gratification against Muhammad Asghar Mehmood respon dent furnished by Haq Nawaz and Faiz Bakhsh P. Ws.

(iv) That there was ample circumstantial and documentary evidence connecting Gulzar Muhammad and Muhammad Sadiq respondents with the commission of the offences with which they are charged but the learned Senior Special Judge in w hasty manner without examining the relevant record allowed bail on flimsy grounds.

The operative part of the order of the learned Senior Special Judge granting pre-arrest bail to the respondents may be reproduced with advantage:-

"As the case has been registered on a mere presumption, there fore, there are no reasonable grounds to believe that any offence has been committed. I admit all the petitioners to bail. Bail already granted to them is confirmed."

The plain reading of the order of learned Senior Special Judge indicates that he has not considered the question of grant of pre-arrest bail in the light of principles laid down by the learned Supreme Court in cases Murad Khan v. Fazal-e-Subhan (P L D 1983 S C 82) and Ali Muhammad v. Yasin and others (1981 S C M R 1139). The learned Senior Special Judge did not advert to the main consideration for grant of pre-arrest bail, i.e. mala fide on the part of the police to cause irreparable injury to the respondents' reputation and liberty. So much so, the respondents did not show any apprehension of their arrest on account of ulterior motives. The police had collected direct evidence of demand and acceptance of illegal gratification and there was ample circumstantial and documentary evidence against the respondents, but the learned Senior Special Judge did not care to examine record and granted pre-arrest bail on the grounds contrary to the record. For all these reasons, the contentions raised by the learned counsel do not justify grant of pre-arrest bail to the respondents. On independent assessment, I am of the view that there was sufficient material to refuse pre-arrest bail to the respondents and that while considering the question of grant of pre-arrest bail to the respondents, the learned Senior Special Judge has not followed the case-law laid down by the Superior Courts. The learned counsel has also failed to satisfy me with regard to the mala fide conditions of intended arrest. It may be said with confidence that it was not a fit case for grant of pre-arrest bail.

6. For what has been stated above, the pre-arrest bail granted to the respondents by learned Senior Special Judge, Anti-Corruption vide his order dated 26th October, 1983, is cancelled.

7. Before parting with the judgment, I would like to add that this order is without prejudice to the decision which may be made in applica tion for bail after arrest moved by the respondents and that it would be open to the petitioners namely Wazir Ahmad, Muhammad lqbal and Muhammad Ramzan to move fresh application for bail as and when necessary.

M. Z. M. Bail cancelled.

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