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Petitioner: ALLIED BANK OF PAKISTAN LT.D. MUHAMMAD ASLAM VS Respondent: KHALID FAROOQ THE JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Nasim Hasan Shah, Muhammad Afzal Lone, Rustam S. Sidhwa Title:ALLIED BANK OF PAKISTAN LT.D. MUHAMMAD ASLAM vs KHALID FAROOQ THE
JUDGMENT
Reported As: 1991 SCMR 599 Result: Order accordingly Judgment JUDGMENT RUSTAM S. SIDHWA, J.---This judgment will dispose of Criminal Appeal (CrA.No.48 of 1985) filed by the Allied Bank of Pakistan Ltd. Against the judgment of a learned Division Bench of the Lahore High Court dated 24-2-1984 allowing bail to Khalid Farooq respondent pending his trial by the Special Court (Offences in Banks) (hereinafter referred to as "the Special Court") under sections 409, 420, 468 and 477-A, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 and Criminal Appeal (CrA.No.49 of 1985) filed by Muhammad Aslam appellant against the judgment of a learned Division Bench of the Lahore High Court dated 29-1-1985, rejecting his application for suspension of the execution of his sentence and release on bail, pending the final disposal of his appeal. 2. The brief facts relevant to criminal appeal (CrA. No.48 of 1985) are that Khalid Farooq respondent maintained two accounts with the Allied Bank of Pakistan Ltd., Kutchery Bazar Branch, Sargodha. On 31-1-1981 an FIR under sections 40`i, 468, 477-A, P.P.C. And section 5(2), P.C.A. Was registered on behalf of the Bank against Muhammad Ismail, the Manager of the Kutchery Bazar Branch of the Allied Bank of Pakistan and Khalid Farooq respondent in respect of embezzlement of large sums of money. Khalid Farooq respondent applied for pre-arrest bail before the Sessions Judge, Sargodha, which was allowed on interim basis and thereafter confirmed on 18-2-1981. The investigation of the case was with the F.I.A., Lahore. The case was thereafter entrusted for trial to the Martial Law Court,
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whereupon the respondent was arrested on 24-11-1982. With the enforcement of Offences in Respect of Banks (Special Courts) Ordinance, IX of 1984 (hereinafter to be referred to as "the Ordinance") the case was transferred to the Special Court for trial. Khalid Farooq respondent thereafter applied for bail before the Special Court, which was disallowed on 9-6-1984 on the ground that prima facie there appeared reasonable grounds for believing that he was guilty of the scheduled offences imputed to him. He thereupon moved the Lahore High Court for bail, which was allowed by a learned Division Bench on 24-10-1984 on the ground that the earlier bail granted to the respondent by the Sessions Judge, Sargodha, still remained in the field and could not be cancelled by the Special Court constituted under the Ordinance. In this view of the matter, the learned Judges felt that they were not required to discuss the merits of the case. Being aggrieved by the said order, the appellant-Bank petitioned this Court for leave to appeal against the same, which leave was granted to consider the true interpretation of sections 4(7) and 10 of the Ordinance. 3. On behalf of the appellant it is submitted that the power available to the High Court to grant bails under section 498 of the Code of Criminal Procedure (hereinafter referred to as "the Code") having been taken away by section 10(1) of the Ordinance, the High Court had no power to release the respondent on bail pending the disposal of his case. Even assuming that such a power was available, it is submitted that the learned Judges of the High Court legally erred in releasing the respondent on bail by assuming that the pre-arrest bail granted by the Sessions Judge, Sargodha, to the respondent remained effective even though he had been arrested on 24-11-1982. It is contended that the learned Judges erred in assuming that the Special Court had cancelled the said pre-arrest bail granted by the Sessions Judge, when in fact no such bail was cancelled. It is also urged that the learned Judges legally erred in holding that they were not required to discuss the merits of the case, when under section 5(6) of the Ordinance they were bound to find as a fact that the material on the record against the respondent did not reasonably show that he was guilty of the offences which had been imputed to him. 4. On behalf of the respondent it is submitted that the Special Court has power pending the trial of the case before itself to grant bail to an accused, in view of section 5(6) of the Ordinance. It is submitted that the words "or by any other Court" appearing in subsection (6) of section 5 of the Ordinance would include the High Court. It is further submitted that the ouster of section 498 of the Code from the power available to the High Court, as stated in section 10(1) of the Ordinance, does not have the effect of ousting the power granted by section 497 of the Code to the High Court to grant bail. In this respect the learned counsel has cited Shahzad Hussain v. The State (PLD 1980 Lah. 54), Altaf Hussain v. The State (PLD 1985 Lah. 10) and Nifasat Ali Khan v. State (PLD 1989 Kar. 198). It is further contended that any form of ouster should not be readily inferred and any provision dealing with ouster must be strictly construed so its not to affect similar or alternate powers available with Courts under the Constitution or other provisions of the law. In this connection the learned counsel has referred to Begum Shaheen Ramay v. State (PLD 1977 Lah. 1414). Further, Sadiq Ali v. State (PLD 1966 SC 589), Muhammad Ayub v. Muhammad Yaqub (PLD 1966 SCE 1003) and Zia-ul-Hassan v. State (PLD 1984 SC 192) have been cited to show the parameters laid down by this Court in respect of the application of sections 496, 497 and 498 of the Code by different Courts in differing situations. It is further submitted that the automatic cancellation of bail provided in section 4(7) of the Ordinance is only available in respect of bails which have been granted to accused persons by the Courts which have tried the cases and not by Courts which have not or were not competent to try the same and since in the instant case pre-arrest bail had beer allowed to the respondent by the Sessions Judge, when t0a; case was triable by the Special Judge Anti- Corruption, the pre---arrest bail has not been granted by the Court seized of the trial and therefore the same automatically did not stand cancelled. It is lastly contended that the trial of the
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respondent has now been set down by the Special Court for a date in December this year and as the respondent has been on bail for almost five years and his trial is to begin in December, he may be permitted to remain on bail pending the final decision in his case. 5. The brief facts of the case in respect of Criminal Appeal (CrA.49 of 1985) are that Muhammad Aslam appellant was convicted on 29-11-1984 under sections 477-A and 471, P.P.C. By Mr. Justice Ghazanfar Ali Gondal, Special Court constituted under the Ordinance, and sentenced to five years' R.I. And a fine of Rs.12,000 or in default thereof to undergo further one year's R.I. Under section 477-A, P.P.C. And to two years' R.I. With fine of Rs,12,000 or in default thereof to undergo further R.I. For six months under section 471, P.P.C. The appellant preferred an appeal before the High Court under section 10 of the Ordinance and with it filed an application for bail pending disposal of his appeal. A learned Division Bench of the High Court dismissed the said application on 29-1-1985 on the ground that section 10 of the Ordinance barred the jurisdiction of the Court from either suspending the sentence or releasing the convict on bail, by virtue of the rule laid down in Altaf Hussain's case (supra), and that bail could not be granted under section 561-A of the Code in the exercise of its inherent powers, in view of the rule laid down by the Privy Council in Lala Jairam Das v. Emperor (AIR 1945 P C 94). Being aggrieved by the said order, the appellant petitioned this Court for leave to appeal against the same, which leave was granted to consider whether section 10 of the Ordinance barred the High Court from suspending the sentence of a convict and releasing him on bail, pending the disposal of his appeal. ' 6. On behalf of the appellant it is submitted that in section 10 of the Ordinance the words "no Court shall have authority .... To make any order under section 426 of the Code" refer to a Court other than the High Court, for wherever the High Court is intended the words "High Court" are mentioned and wherever the Special Court is intended the words "Special Court" .,re mentioned and therefore the word "Court" as used in section 10 of the Ordinance can only have reference to a Court other than the High Court or the Special Court. In this view of the matter all powers available to the High Court as Court of Appeal from sentences passed by a Special Court are available to it and the power of suspending the execution of a sentence and releasing the person convicted on bail, being substantively conferred under section 426 of the Code and also being ancillary and incidental to its appellate jurisdiction, are thus available to the High Court. It is further submitted that the powers of the High Court under section 561-A of the Code are also available to it as a Court of Record, the same being otherwise inherent powers. It is lastly contended that the High Court under its powers of revision available under section 435 of the Code can also grant bail. It is, therefore, submitted that the High Court can release a convict on bail, pending the final disposal of his appeal. 7. On behalf of the State it is submitted that the word "Court" as appearing in section 10 of the Ordinance refers to all Courts, including the High Court, but not the Special Court, that due to the specific ouster of section 426 of the Code from the powers available to the High Court, neither can the execution of the sentence be suspended, nor can the convict be released on bail, nor can the inherent power under section 561-A of the Code be invoked in that respect and that even otherwise the power under section 435 of the Code, which is regulated by section 439 of the Code, is excluded by the language of section 10 of the Ordinance itself and therefore neither the sentence can be suspended nor bail can be granted by the High Court to a convict, pending the final disposal of his appeal. 8. Before we advert to the arguments, it is necessary to set down certain sections of the Ordinance or parts thereof which are relevant:- Section 2(b).---"Code" means the Code of Criminal Procedure, 1898 (Act V of 1898). Section 2(d).---"scheduled offence" means an offence specified in the First Schedule and alleged to have been committed in respect, or in connection with the business, of a bank; and Section 2(e).---"Special Court" means a Special Court constituted under section 3.
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Section 3.---(1) The Federal Government may, by notification in the official Gazette, constitute, for the whole or any part of Pakistan, Special Courts consisting of a person who has been or is, or is qualified for appointment as a Judge of the High Court. (2) A Special Court shall sit at such place as the Federal Government may, by notification in the official Gazette, specify in this behalf. Section 4.---(1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court. (2) The Federal Government may, from time to time, by notification in the official Gazette, include in the First Schedule such other offences as it deems necessary or expedient. (3) All cases relating to a scheduled offence pending in any Court other than a Special Court immediately before the commencement of this Ordinance shall, on such commencement, stand transferred to the Special Court having jurisdiction over such cases. (4) Whenever an offence is included in the First Schedule under subsection (2), all cases relating to that offence pending in any Court other than a Special Court immediately before such inclusion shall stand transferred to the Special Court having jurisdiction over such cases. (5) In respect of cases transferred to a Special Court by virtue of subsection (3) or subsection (4), the Special Court shall not, by reason of the said transfer, be bound to recall and rehear any witness who has given evidence in the case before transfer and may act on the evidence already recorded or produced before the Court which tried the case before the transfer. (6) If, in the course of a trial before a Special Court, the Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence. (7) In cases transferred to a Special Court by virtue of sub-section (3) or subsection (4), any bail granted to an accused person by the Court which tried the case before the transfer shall stand cancelled. Section 5 (6).---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. (7) Where an accused person is released on bail, the amount of bail shall be fixed having regard to the gravity of the charge against such person and, where the charge specifies any amount in respect of which the offence is alleged to have been committed, shall not be less than twice the said amount. (8) A Special Court shall, in all matters with respect to which no procedure has been prescribed by this Ordinance, follow the procedure prescribed by the Code for the trial of the cases by Magistrates. Section 6(1): -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. Section 10.--(1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code or have any jurisdiction of any kind in respect of any proceedings of a Special Court. (2) An appeal under subsection (1) shall be preferred to the High Court within thirty days of the passing of the sentence and shall be heard and decided by a Bench of not less than two Judges of
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the High Court. (3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Court. Section 12.---The provisions of this Ordinance shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force. 9. At this stage it may be stated that some of the provisions of the Suppression of Terrorist Activities (Special Courts) Act, XV of 1975, are almost similar to those in the Ordinance. In this respect sections 5(6) and (7), 10(1), (2) and (3) and 12 of Act XV of 1975 are the same as sections 5(6) and (8), 7(1), (2) and (3) and 10 of the Ordinance. However, in 1976 the right to file an appeal against an acquittal was provided in section 7 of Act XV of 1975 by Act III of 1976. Likewise, section 6 of the Act is almost similar to section 6(1) of the Ordinance, though the latter has some additions to it. The object of mentioning this is that cases decided under Act XV of 1975 will have relevance to the matters falling for determination under this Ordinance. 10. The Ordinance has been enacted for the purposes of providing speedy trial of certain offences listed in the Schedule to the Ordinance, committed in respect of Banks and for matters connected therewith or incidental thereto. Under section 3 of the Ordinance, the Federal Government may constitute, for the whole or any part of Pakistan, Special Courts consisting of a person who has been or is, or is qualified for appointment as, a Judge of the High Court. A Special Court has to sit at such place as the Federal Government by Notification may specify in that behalf. Under section 4(1), the offences mentioned in the Schedule are exclusively triable by the Special Court. Under section 4(2), the Federal Government, from time to time, can include in the First Schedule such other offences as it may deem necessary or expedient. Under section 4(3) all cases relating to a scheduled offence pending in any Court other than a Special Court immediately before the commencement of the Ordinance, on such commencement stand transferred to the Special Court having jurisdiction over such cases. Under section 4(4), whenever any offence is freshly included in the First Schedule under subsection (2), all cases relating to that offence pending in any Court other than a Special Court immediately before such inclusion, stand transferred to the Special Court having jurisdiction over such cases. Under section 4(7), in cases transferred to a Special Court by virtue of subsection (3) or subsection (4), any bail granted to an accused person by the Court which tried the case before the transfer stand cancelled. Under section 5(6), an accused person cannot 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 can such an accused be so released unless the prosecution has been given notice to show cause why he should not be so released. Under section 5(7) of the Ordinance, where an accused person is released on bail, the amount of bail has to be fixed having regard to the gravity of the charge against such person and, where the charge specifies any amount in respect of which the offence is alleged to have been committed the amount of bail has not to be less than twice the said amount. Under section 5(8), a Special Court, in all matters with respect to which no procedure has been prescribed by the Ordinance, has to follow the procedure prescribed by the Code for the trial of cases by Magistrates. Under section 6(1), subject to subsection (2) and subsection (3), a Special Court car pass any sentence authorised by law and shall have all the powers confirmed by the Code on a Court of Session exercising original jurisdiction. In short, the status of the Special Court is equivalent to that of a Court of Session, though presided I by a person who has been or is a Judge of the High Court. It can exercise all the powers conferred by the Code on a Court of Session exercising original jurisdiction, though the procedure to be followed in respect of the trial of offences has to be that for the trial of cases by Magistrates instead of that prescribed for trial by Courts of Session. Under section 10 of the Ordinance a person sentenced by the Special Court has a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but
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except as stated above and notwithstanding the provisions of the Code or any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court has been given authority to revise such sentence or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code or to have any jurisdiction of any kind in respect of any proceedings of the Special Court. Under section 10(2) of the Ordinance, the appeal under subsection (1) has to be preferred to the High Court within 30 days of the passing of the sentence, which has to be heard by a Bench of not less than two Judges of the. High Court. Under section 10(3) of the Ordinance, Chapter XXIX of the Code applies to the suspension, remission and commutation of sentences passed by a Special Court. Under section 12, the provisions of the Ordinance have effect notwithstanding anything contained in the Code or any other law for the time being in force: 11. Learned counsel for the parties have cited certain cases before us. Some further cases under the Suppression of Terrorist Activities (Special Courts) Act, XV of 1975, namely, Mirza Javed Beg v. The State PLD 1975 Karachi 628 and Shahzad Hussain v. The State PLD 1980 Lahore 54 and some under the Ordinance, namely, Abdul Majid v. The Judge Special Court (Offences in Banks) Lahore 1985 P Cr. LJ 890, Altaf Hussain v. The State PLD 1985 Lahore 10, Muhammad Moosa v. The State 1986 PCr LJ 578, Syed Zeeshan Akhtar Zaidi v. The State 1988 P Cr. L J 843, Habib Bank Ltd. v. The State PLD 1988 Karachi 49, Sajawal Sarwar v. The State 1988 P Cr. L.J 1558 and Nifasat Ali Khan v. The State PLD 1989 Karachi 198 have also been examined. 12. The question before this Court is whether the High Court can release an accused on bail pending his trial, where the same has been refused by the Special Court, and whether bail can be allowed, pending the determination of his appeal, where such an accused has been convicted by the Special Court under the Ordinance. 13. Before answering these questions it is necessary to clear up certain matters which are relevant and may be disposed of first. First, what is the position of the High Court and the Court of Session regarding the powers conferred by sections 496, 497 and 498 of the Code. Second, what is the rule or principle governing the ouster of a power generally available to a superior Court by a provision contained in a special law. Third, whether the Special Court constituted under the Ordinance is a Court or a judicial tribunal. 14. With regard to the powers of the High Court and the Court of Session vis-a-vis sections 496, 497 and 498 of the Code, the principle laid down by this Court in Muhammad Ayub's case (supra) requires recapitulation. According to the judgment of S.A. Rehman, J., which is the leading judgment and was concurred by Cornelius, C.J., and Fazl-e-Akbar J, and which therefore constitutes the majority judgment, the place of section 498 of the Code and its interaction with sections 496 and 497 have been dealt with in the following words:- "The word `appears' in sections 496 and 497 need not be construed to include voluntary appearance, even in circumstances of grave apprehension of arrest. This word may be taken to have been used in sections 496 and 497, in the same sense as in section 242 or 252 of the Code, which obviously contemplate appearance in answer to a process issued by a Court. This interpretation will have the merit of saving section 498 in its own right. The position that emerges then would be that under sections 496 and 497, Criminal Procedure Code, the Court can bail out a person only if he has been placed under actual custody or appears in answer to a process issued or is brought before the Court, presumably by the police, or by some other arresting authority. In other words, these sections apply where there has been an actual arrest attracting the Court's jurisdiction or the Court is seized of the proceedings directly, in which bail is requested. Section 498, however, would be called in aid before the Court of Session and the High Court, even where the Court is not seized directly of the proceedings in question Viand where no actual arrest has been made so far but anticipatory bail is asked for, e.g. Where the case is still at a stage of investigation
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by the police or is pending in a subordinate Court. The power to grant such anticipatory bail would thus be confined to the High Court and the Court of Session and other Courts would be excluded from its scope. This interpretation would seem to be consistent with the use of general expressions like `in any case' and 'any person' in section 498. The High Court or Court of Session would also of course have concurrent as well as revisional powers, in respect of orders by the police or the subordinate magistracy, in the matter of bail, under section 498 read with sections 496 and 497." The learned Judge further stated:-- "In other respects, however, section 498 occupies the position of a supplementary provision in so far as it confers not only concurrent but revisional powers on the High Court and the Court of Session in respect of grant or refusal of bail by subordinate Courts. And the police and enables these Courts to exercise the power of anticipatory bail, in suitable cases." The words "a Court" in section 497 of the Code do not mean a trial Court. If the intention had been to restrict the section to the trial Court, the words "trial Court" would have been used. It is only because of the words "a Court" that the Duty Judge or Magistrate grants bail…
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