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Criminal Miscellaneous No. 1203/B of 1986, decided on 24th June, 1986.

---S.497(5)--Penal Code (XLV of 1860), Ss.406, 409 & 420--Bail, cancellation of--Accused verifying signatures on account opening form bona fide believing her to be correct person--No mens rea on part of accused to cheat Bank or party shown--Involvement of accused, held, was malicious and accused was rightly allowed pre-arrest bail.

---S.497(5)--Penal Code (XLV of 1860), Ss.406, 409 & 420--Bail, cancellation of--Dispute regarding bank account--Mala fides alleged and argued before Special Court (Offences in Banks)--Compromise between parties also referred at time of arguing pre-arrest bail--Inadvertent omission on part of Judge to refer to mala fides, held, would not destroy legality of his order.

Murad Khan's case P L D 1983 S C 82 and Zia-ul-Hassan's case P L D 1984 S C 192 ref.

---S.497(5)--Penal Code (XLV -of 1860), Ss.406, 409 & 420--Bail, cancellation of--Fresh material, effect of--Report of handwriting expert received after grant of pre-arrest bail--Fresh material arising out of such report, not before Court at time of pre-arrest bail--Impugned orders, when passed, were based on proper consideration of law and facts, petition for cancellation was, therefore, refused in circumstances.

Yusuf Ali Khan, Bar-at-Law for the Petitioner.

M. Akram Qureshi for Respondents Nos. 2, 3 and 4.

Wazir Ali for Respondent No.1.

Sardar Nazar Muhammad Dogar for the State.

--This is a petition under section 497(5), Cr.P.C. by Muhammad Siddique, petitioner, for the cancellation of pre-arrest bails granted to Abdul Latif and others, respondents Nos. 1 to 4, by the Special Court (Bank Offences), Lahore.

2. The prosecution case in brief is that Muhammad Siddique, the present petitioner, who was working in Saudi Arabia, wrote to his wife Mst. Balqees Siddiqui, who was residing with her father in Bhai Pheru, to open an account with any Pakistani bank in her own name, so that remittances being sent by him could be deposited by her in the said account. Mst. Balqees, being illiterate, requested her father Abdul Karim, the present respondent No.2, to open an account in her name, whereupon the said respondent caused such an account to be opened by his youngest daughter Mst. Shahnaz Akhtar, the present respondent No.4, by impersonating as Mst. Balqees Siddiqui, the petitioner's wife. After some time, a large number of cheques were unlawfully drawn by Mst. Shahnaz Akhtar, respondent No.4, from the said account, which amounts were collected on the counter by Abdul Karim, respondent No.2, Inayat Ullah, respondent No.3, and Muhammad Abdullah Karim, deceased.

3. On behalf of the petitioner it is submitted that the pre-arrest bails were allowed to respondents Nos. 1 to 4 by the Special Court (Bank Offences), Lahore, in violation of the principle laid down in that behalf by the Supreme Court in Murad Khan's case P L D 1983 SC 82 and Zia-ul-Hassan's case P L D 1984 S C 192, as the Special Court did not at all advert to the fact that the respondents had been maliciously involved or that there was ulterior motive on the part of the police to harass or humiliate the respondents.

4. On behalf of Abdul Latif, respondent No.1, it is submitted that he only verified the signature of "Balqees Siddiqui" on the account opening form, on the strength of Abdul Karim, respondent No.2's request, who had come personally to the bank with a lady in Burqa, whom he stated was his daughter, Mst. Balqees Siddiqui, and since the said respondent had over rupees five lacs in his own account, he verified the signature of Mst. Balqees Siddiqui on the form, bona fide, believing that the lady in Burqa whom Abdul Karim, respondent No.2, had brought was the said lady. Since there was no mens rea on the part of this respondent to cheat the petitioner or the bank, his involvement was malicious and the respondent, therefore, had been rightly allowed pre-arrest bail.

5. On behalf of Abdul Karim and others respondents Nos. 2 to 4, it is submitted that after the petitioner came to Pakistan, he murdered Muhammad Abdullah Karim, a son of Abdul Karim, respondent No.2, by giving him an electric shock, in respect of which Abdul Karim, respondent No.2, registered a criminal case against the petitioner. It is further submitted that the parties then compromised the matter through Punchayat, wherein it was decided that both the parties would drop all the disputes pending against each other. In accordance with the said compromise, Abdul Karim, respondent No.2, withdrew the private complaint which he had filed against Muhammad Siddique, petitioner, under section 302, P.P.C. regarding the murder of his son, but the petitioner, after a shortwhile, turned round and filed the present petition for the cancellation of bail after a lapse of 3/4 months. It is submitted that the dispute relating to the bank account being a money dispute between the parties and the petitioner having compromised the matter, the offences qua the respondents would be deemed compounded in law. Since the respondents, when they applied for pre-arrest bail, did refer to the compromise anti the mala fide manner in which they were involved in their petition for bail and this matter was also argued before the Special Court (Bank Offences), the inadvertant omission of the learned Judge to refer to the mala fides does not destroy the legality of his orders granting pre-arrest bails to the respondents.

6. On behalf of the State it is submitted that after pre-arrest bail was allowed to respondents Nos. 1 to 4, the report of the Handwriting Expert was received, which shows clear involvement of Abdul Karim and Inayat Ullah, respondents Nos. 2 and 3, in the case, as they were the person1b who had received the amounts on the forged cheques at the counter of the bank.

7. We have given our anxious consideration to this case. The certified copies of the bail petitions filed by respondents Nos. 1 to 4 before the learned Judge, Special Court (Bank Offences), clearly show that the respondents alleged mala fides therein, by asserting that the petitioner had compromised all his disputes with them and had turned round to file the present case against them through the F.I.A. staff at Lahore. A large number of documents have been filed by the learned counsel for respondents Nos. 2 to 4 with us also, which prima facie support the assertion made in this connection. It appears that this matter was argued before the learned Judge, Special Court (Bank Offences), but the learned Judge inadvertently omitted to refer to the same in his orders. On the dates when the, pre-arrest bails were allowed and confirmed in favour of respondents Nos. 1 to 4, the fresh material arising out of the report of the Handwriting Expert was not before it. In this view of the matter, the impugned orders, when they were passed, were based on a proper consideration of the law and facts.

8. In view of the above, there being no merit in this petition, the same is dismissed. The petitioner or State may, if, they so desire, move the Judge, Special Court (Bank Offences) for the cancellation of the bails granted to the respondents, in view of the fresh material which has been discovered.

S. A.

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