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Petitioner: ABDUL MAJID VS Respondent: THE JUDGE, SPECIAL COURT (OFFENCES IN BANKS), LAHORE and anothers
Court Name: Lahore High Court Judge(s): Gul Zarin Kiani, Gulbaz Khan Title:ABDUL MAJID vs THE JUDGE, SPECIAL COURT (OFFENCES IN BANKS), LAHORE
and anothers Case No.: Criminal Miscellaneous No, 2140 of 1984 Date of Judgment:1984-10-23 Reported As: 1985 P Cr. L J 890 Result: Order accordingly Judgment ORDER ' GULBAZ KHAN, J. {{TABLE}} (1- Crl. Misc. No, (2- Crl. Misc. No, -- 2140-B-1984 2141-B-1984 (Abdul Majeed v. State) (Sabir Hussain v. State) 1.(a) (3- Crl. Misc. No, 2351-B-1984 (Muhammad Younus v. State) (4- Crl. Misc. No, 2352-B-1384 (Muhammad Rafique v. State) 1.(b) (5- Crl. Misc. No, 2138-B-1984 (Mahmood% Ahmad v. State) 1.(c) (6- Crl. Misc. No, 2139-B-1984 (Liaqat Ali v. State) 1.(d) (7- Crl. Misc. No, 1757-B-1984 (Khalid Farooq, v. State) 1.(e) (8- Crl. Misc. No, 2501-B-1984 (Hafiz Muhammad Usman v. State) 1.(f) (9- Crl. Misc. No, 2541-B-1984 (Muhammad Yameen v. State) 1.(g) 10- Crl. Misc. No, 2263-B-1984 (Iqbal Ahmad v. State) 1.(h) 11- Crl. Misc. No, 2330-B-1984 (Muhammad Rafique son of Umar v. State) 2. ' The petitioners in the above referred cases were admitted to interim bail. Their bail was confirmed, on 24-10-1984, with observation that the reasons shall be recorded later on. We now proceed to record the reasons. 3. Death sentences have been provided for offences which are of very serious nature like waging war against Pakistan (S.121, P.P.C.), abetment of mutiny by soldiers etc.If mutiny is committed in
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consequence thereof (S.132, P.P.C.),giving or fabricating false evidence if innocent person thereby is convicted and executed (S. 194, P.P.C.), murder (S.302, P.P.C.), murder by a person under sentence of imprisonment for life (S.303, P.P.C.), abetment of suicide committed by a child or insane or delirious person or an idiot or a person intoxicated (S.305, P.P.C.), attempt by life convict if hurt is caused (S.307, P.P.C. Part-III), kidnapping or abducting a person under the age of ten years (S.364- A, P.P.C.), murder in dacoity (S.396, P.P.C.). Sentence of imprisonment for life has been prescribed for lesser heinous offences than referred to above. The offences which are of grave and serious nature have been made non-bailable. Chapter XXXIX (Ss.496 to 502, Cr.P.C.) deals with bail matters. Certain offences are bailable in which the Court is obliged under section 496, Cr.P.C. To release the accused on bail provided he is prepared to give bail bond. In certain cases, discretion vests with Court. Needless to say that the discretion is to be exercised judiciously. It is laid down in section 497(1), Cr.P.C. That when any person accused of non-bailable offence is arrested or detained without warrant by an officer-in-charge of a Police Station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. Bail can be allowed to an accused person involved in a case punishable with death or imprisonment for life, if there are not reasonable grounds for believing that he has committed such an offence. There are certain exceptions in which bail can be granted to an accused person even if he is involved in a case punishable with death or imprisonment for life or imprisonment for ten years. For example bail can be allowed to such an accused if he is under the age of sixteen years or if the accused is a woman or sick or infirm person. Third proviso was added by Ordinance VII of 1979. Under this added proviso, the Court is bound to allow bail to an accused person involved in a case punishable with death, who is detained in jail for a continuous period exceeding two years and whose trial for such offence is not concluded, if it is of the opinion that the delay in the trial has not occasioned by an act or omission of the accused or any other person acting on his behalf. Subsection (2) of section 497, Cr.P.C. Provides that if it appears to such officer or Court, at any stage of the investigation, inquiry or trial, as the case may be that there are not reasonable grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail or at the discretion of such officer or Court, on execution by him of a bond without sureties for his appearance as hereinafter provided. The word "a Court" and not the trial Court has been used in subsection (1) of section 497, Cr.P.C. It is given in section 498, Cr.P.C. That the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail or that the bail required by a Police Officer or Magistrate be reduced. Provision of section 498, Cr.P.C. Is applied by the High Court and the Court of Session in allowing bail before arrest to an accused person because the words "when any person accused of any non-bailable offence is arrested or detained without warrant by an offiecer-in-charge of a Police Station, or appears or is brought before a Court", as incorporated in subsection (1) of section 497, Cr.P.C. Do not find place in section 498, Cr.P.C.Besides section 498, Cr.P.C., the High Court has inherent jurisdiction under section 561-A, Cr.P.C., wherein it is provided that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. 4. A person convicted by a Special Court, constituted under Ordinance IX of 1984, has a right of appeal to the High Court within whose jurisdiction the sentence has been passsed. It is so provided in section 10 of the Ordinance. The appeal by a convict for scheduled offence under the Ordinance, is to be preferred to the High Court within thirty days of the passing of the sentence and it is to be
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heard and decided by a Bench of not less than two Judges of the High Court. The argument of the State counsel that the High Court has no jurisdiction to allow bail in a scheduled offence under the Ordinance, is without force. It is not conceivable that the Special Court trying the case has the power to grant bail subject to the restrictions contained in subsection (6) of section 5 of the Ordinance but the appellate Court does not possess any such power. The basic provision for the grant of bail is section 497, Cr.P.C. The word "a Court" has been mentioned in said section. If the law-maker intended to give jurisdiction of bail only to the Special Court and had intended to exclude the jurisdiction of Superior Courts, he would have mentioned that no Court including the High Court or Supreme Court shall have jurisdiction to allow bail in a scheduled offence. Since the Special Court has been given the parallel power of a Court of Sessions, therefore, section 498, Cr.P.C. Finds place in section 10 of the Ordinance and the jurisdiction of the Sessions Judge has been ousted in the matter of bail before arrest in a scheduled offence under the Ordinance. It would be significant to note that section 497, Cr.P.C. Which is the basic section for bail, has not been included in section 10 of the Ordinance. If the law-maker intended to keep the jurisdiction of bail with the Special Court only, he would not have mentioned the words "by any other Court" in subsection (6) of section 5 of the Ordinance. Section 5 (6) of Ordinance IX of 1984 is verbatim copy of section 5(6) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975). Similarly section 10 of Ordinance IX of 1984 is verbatim copy of section 7 of Act XV of 1975. Section 5(10) and section 7 of the aforesaid Act have been thoroughly discussed in case titled Shehzad Hussain v. The State PLD 1980 Lah. 54, which still holds the field. 4. The High Court has the power to supervise or control the Courts subordinate to it. This power vest in it under Article 203 of the Constitution of Islamic Republic of Pakistan. Any illegality committed by a subordinate Court can be set aside by the High Court under Article 203 of the Constitution. The power of control and supervision vested in High Court under Article 203 of the Constitution and the inherent power under section 561-A, Cr.P.C. Cannot be taken away impliedly. If such powers are to be taken away, it can be done only expressly. It has been observed by Mr. Justice Yaqub Ali, the then Chief Justice in case titled Ch. Zahur Elahi v. The State PLD 1977 SC 273 that there was no cavil against the proposition that the jurisdiction of the superior Courts cannot be taken away except by express words or necessary implication and a distinct and unequivocal enactment is also required for the purpose of either adding to or taking from the jurisdiction of a superior Court of law. It has been held in same judgment that the words "no Court" cannot always to be interpreted to include a superior Court or High Court. We, thus hold, that the words "no Court" used in section 10 of the Ordinance did not mean to be applicable to superior Courts. For the reason stated above, it is held that the High Court has the jurisdiction to allow bail before arrest or after arrest to an accused person in a scheduled offence, of course, subject to the restriction contained in subsection (6) of section 5 of the Ordinance. Offences under sections 161 to 166, 168, 217, 218,403 to 408, 417 to 420, 409, 467, 468, 471, 472, 473, 474, 475 and 477-A of the P.P.C. And offences under the Prevention of Corruption Act, 1947 were being tried by the Special Judges appointed under the Pakistan Criminal Law Amendment Act, 1958 (Act XI of 1958). It has been found expedient to provide for speedy trial of certain offences committed in respect of banks and for matters connected therewith or incidental thereto. The President was satisfied that circumstances existed, which rendered it necessary to take immediate action. Hence, in pursuance of the proclamation of 5th July 1977 and in exercise of all powers enabling him in that behalf, the President was pleased to make and promulgate Ordinance IX of 1984 w.e.f, 23-2-1984. Offences under sections 403, 406, 408, 409, 467, 468, 471, 472, 473, 475 and 477-A, P.P.C. Have been included in the 1st Schedule and also offences punishable under the Ordinance and any attempt or conspiracy to commit or an abetment of any of the aforesaid offences. Under section 3 of the said Ordinance, the Federal Government by Notification in the official Gazette can constitute, for the whole or any part of Pakistan, Special Courts consisting
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of a person who has been or is, or is qualified for appointment as a Judge of a High Court. The scheduled offences fall under the exclusive jurisdiction of the Special Court constituted under this Ordinance as it is so provided in section 4. On the enforcement of this Ordinance, all the cases relating to scheduled offences pending in any other Court immediately before the commencement of the Ordinance stood transferred to Special Court having jurisdiction over such cases. As a result of the enforcement of this Ordinance, all the cases pending before Special Judges have been transferred to the Special Court constituted under the Ordinance. In view of section 4 (7) of the Ordinance bail granted to an accused person by the Court which tried the case, before the transfer, stood cancelled. This provision would be applicable only to those cases in which bail had been granted by the Court which tried the case. If the bail was granted by a Court other than the Court which tried the case, the bail did not stand cancelled, for example, if the bail was allowed by the High Court or the Sessions Judge, it did not stand cancelled. As mentioned earlier, the law is not very strict in the matter of bail. Even if the offence is punishable with death, bail can be allowed if the accused is below sixteen years of age or is female person or sick or infirm. None of the offences falling under the schedule of the Ordinance, is punishable with death. The law-maker did not enhance the sentences of offences mentioned in the schedule. Only the minimum sentence has been prescribed for the scheduled offences. The law-maker was conscious of the fact that certain accused might depart from Pakistan during the trial and hence section 8 was introduced to state that if a Special Court has taken cognizance of a scheduled offence, the accused shall not, without the permission of the Special Court, depart from Pakistan until the case has been finally decided by the Special Court. Other persons have been restrained from employing such persons before the decision of the cases by the Special Court. Section 5(7) provides that the amount of the bail shall not be less than twice the amount mentioned in the charge. It is further provided in section 6(3) of the Ordinance that where a Special Court passes a sentence of fine, whether in addition to any other punishment or not the amount of such fine shall be fixed by it having regard to the gravity of the offence for which the accused person is convicted and, where the Special Court finds the offence to have been committed in respect of a specified amount, shall not be less than twice the said amount. Subsection (4) of section 6 further provides that where a Special Court passes a sentence of fine, the Court shall order the whole or any part of the fine recovered, to be applied in the payment to the bank in respect of which the offence was committed of compensation for the loss caused to it by the offence. The main object of the promulgation of Ordinance IX of 1984 appeared to be the speedy disposal of the cases and also securing the amount of the bank for which the offence had been committed. Subsection (6) of section 5 deals with the matters of bail and it is laid down there that an accused person shall not be released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released. The words of subsection (6) of section 5 have been borrowed from fourth line of section 497(1), Cr.P.C. And also second proviso to section 497, Cr.P.C. The learned Special Court constituted under the Ordinance has taken an erroneous view in stating that section 5(6) of the Ordinance is a complete substitution of section 497(1), Cr.P.C. And a complete Code for the grant of bail to the persons accused of offences mentioned in the schedule. When the law provides that bail can be allowed to an accused person under sixteen years of age, or a female person or sick or infirm person even if there are reasonable grounds to believe that he is guilty of offence punishable with death, how we can subscribe to the view of thelearned Special Court that first proviso to section 497, Cr.P.C. Was not applicable to the cases under the Ordinance for which the maximum sentence was life imprisonment. A case can arise where the accused misuses the concession of bail granted by the Special Court. If we were to accept the view of the Special Court that section 5(6) of the
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Ordinance was a complete Code and substitution of section 497, Cr.P.C. Then under what provision, the Special Court would proceed, if it desired to cancel the bail on the ground that the accused was misusing it. Still another case can arise where at the initial stage the Special Court grants bail to the accused in a scheduled offence on the ground that there did not appear reasonable grounds for believing that the accused was guilty of scheduled offence but subsequently, some more reliable evidence is collected by the Investigating Officer clearly indicating that there were reasonable grounds for believing that the accused was guilty of a scheduled offence, then under what provision, the bail of such accused would be cancelled by the Special Court. Such like situation is dealt with in subsection (5) of section 497, Cr.P.C. Having discussed all these aspects, we hold that all the provisions of section 497, Cr.P.C. Are applicable to the cases before the Special Court, and section 5(6) of the Ordinance is not a complete substitution of section 497(1) nor a complete Code for the grant of bail to persons accused of the offences mentioned in the schedule. 5. In some cases the learned Special Court has taken a view that it has no jurisdiction to allow bail before arrest. Again, we would say that it is an incorrect approach and is not in accordance with law. In the earlier part of the order we have observed that this Court and the Court of Sessions are competent to allow bail before arrest under provisions of section 498, Cr.P.C. Section 6 of the Ordinance provides that subject to subsection (2) and subsection (3), a Special Court may pass any sentence authorised by law and shall have all the powers conferred by the Code on a Court of Session exercising original jurisdiction. The Special Court constituted under the Ordinance exercises all the powers conferred by the Code on a Court of Sessions exercising original jurisdiction including powers under section 498, Cr.P.C. To say, that Special Court has no jurisdiction to grant bail before arrest is against the provisions of section 6(1) of the Ordinance. The Special Court has the power to allow bail before arrest in the scheduled offence under the Ordinance. 6. In Bail Petitions Nos. 2140-B-1984, 2141-B-1984, 2351-B-1984 and 2352-B-1984, the learned Special Court refused bail on the ground that it had no jurisdiction to grant bail before arrest and that it could grant bail only to such accused persons who had already been physically arrested. This view of the learned Special Court has not been accepted by us. Now coming to the merits of the case, it was alleged by the prosecution that Abdul Majeed, in collusion with S.E. Manoah, Branch Manager, National Bank of Pakistan, Civil Lines, Gujranwala, opened letter of credit, on 4-2-1977, for import of Iron and Steel wire from Japan, for US $.7,06,000 equal to Pakistan Rs,7,06,000 (sic) against import licence and on the receipt of shipping documents the goods were got cleared through Clearing Agent of Karachi but after the clearance of consignment, the Clearing Agent handed over consignment to Abdul Majeed petitioner instead of National Bank. Similar was the allegation in respect of other letter of credit for Rs,7,87,000. According to the prosecution the Bank suffered a loss of Rs, 6,22,787.35. Abdul Majeed alongwith Muhammad Younus, Muhammad Rafique and Sabir Hussain petitioners filed suit in this Court for rendition of accounts and injunction stating that Muhammad Younus and Muhammad Rafique were granted licences for the import of ungalvanised steel wire from Japan and they opened letter of credit with the National Bank of Pakistan, Civil Lines Branch, Gujranwala, on 15 per cent margin; that the plaintiffs undertook to pledge the goods with the defendant and this offer was accepted by the defendant, that the plaintiffs delivered to the defendant bank a large quantity of goods; that out of goods pledged, the plaintiffs against payment of certain sums, had been seeking the release of the goods that the plaintiffs pawned with the bank more quantities of goods of the value of Rs,35,00,000; that the plaintiffs had assured the defendant for the adjustment of the outstanding liability provided the whole interest imposed was written off and the steel wire pledged released enabling them to deposit the sale proceeds against actual outstanding amounts. The plaintiffs had admitted their liability stating at the same time that certain amount of goods were still lying with the defendant and they had no dishonest intention of misappropriating the bank amount. The most important
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ingredient of the offence of breach of trust is the dishonest intention of the person. If the intention is not dishonest, the offence of breach of trust is not made out. The Banks are mostly run on the basis of confidence between the banks and the clients. In certain cases, bank facilities are provided to the clients where the parties are found reliable having good reputation and dealings with the bankers. Some times parties suffer losses in the business and feel helpless in making payment of the entire amount to bank. In such cases, it cannot be said that the clients had the dishonest intention of misappropriating the bank amount. Some Managers, in order to capture the business, are liberal in the matter of granting loan or overdraft facilities to their clients. But it would not mean that they do so with dishonest intention. In the case of the aforesaid petitioners it is yet to be proved by the prosecution that the petitioners had the dishonest intention. There are not reasonable grounds to believe that the petitioners are prima facie guilty of scheduled offences. The interim bail allowed to the aforesaid, petitioners is confirmed till the decision of the case. 7. We now proceed with the petition filed by Mahmood Ahmad (Crl. Misc. No, 2138-B-1984). A case under sections 409, 420, 468 and 471 P.P.C. And section 5 (2) of the Prevention of Corruption Act, 1947, was registered with F.I.A., on 13-6-1979, on the allegation that Bashir Ahmad Zafar Ex-Manager, U.B.L., Ghalla Mandi, Liaqatpur, misappropriated Rs,56,408, amount of pay order which was received in collection from U.B.L., Nizampura Branch, Lahore, Rs, 55,000, which were received in cash from U.B.L. Branch, Dera Nawab Sahib, on 14-4-1978, through Ch. Muhammad Siddique Manager of the above Branch at fictitious advice, a fixed deposit of Rs, 10,000 favouring Abdul Ghafoor. In the above three cases the allegations were against Bashir Ahmad Zafar Ex-Manager, U.B.L. The name of Mahmood Ahmad petitioner did not figure in the F.I.R., in spite of the fact the offence having been committed in February, March, and November, 1977, the case had been registered on 13-6-1979. Bashir Ahmad Zafar, principal accused and Niaz All Khan co-accused were allowed bail by Lahore High Court, Bahawalpur Bench. Those two accused remained on bail. Mahmood Ahmad petitioner was allowed bail by Special Judge (Central), Lahore. In view of sub-section (7) of section 4 Ordinance IX of 1984, bail of Mahmood Ahmad stood cancelled. The said order was passed on 8-7- 1984, by the learned Special Court constituted under Ordinance IX of 1984. The case was adjourned to 24-7-1984. Mahmood Ahmad was not present on the said date. His bail was cancelled and non- bailable warrants were issued for 23-9-1984. Mahmood Ahmad fell sick. He remained under the treatment of Dr. Niaz Ahmad and Abid Hussain at Rahimyarkhan, who issued medical certificate. The petitioner was advised treatment for one week with effect from 20-7-1984. It was stated by the petitioner that on account of sickness he was unable to appear before the learned Special Court on 24-7-1984 and his absence was not wilful. The main allegations were against Bashir Ahmad Zafar Ex-Manager. He was alleged to have prepared and signed the relevant documents. The only allegation against the petitioner was that he had signed two transactions of Rs,55,000 and Rs,10,000. His case was of further inquiry as to whether or not he did it with bona fide or mala fide intention. It has already been observed by us that all the provisions of section 497, Cr.P.C., including subsection (2) of section 497, Cr.P.C. Are applicable to the cases under Ordinance IX of 1984. Consequently, the interim bail allowed to Mahmood Ahmad is confirmed. 8. Liaqat Ali and Muhammad Akram petitiners were allowed bail by learned Sessions Judge, Dera Ghazi Khan, in August, 1979. The case was being tried by Special Judge Anti-Corruption, Federal. Due to the enforcement of Ordinance IX of 1984, the case stood transferred to the learned Special Court. The petitioners were directed to appear there on 8-7-1984. The petitioners appeared before the learned Special Court on 8-7-1984. It was observed by the learned Special Court that by virtue of Notification No, S.R.O. 698 (K) 66, dated 20-7-1966, Sessions Judges had been given the powers of Special Judge (Central) and Sessions Judges fell within the category of the trial Court. Taking that view, the learned Special Court cancelled the bail of the petitioners. The petitioners were not sent to jail as neither the warrants of commitment nor the seals were available. The case was
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adjourned to 24-7-1984. The petitioners did not appear on the said date for the reason that in another case the learned Special Court had taken up the view that it had no jurisdiction to grant bail before arrest. A point was…
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