1. ' On 12th May, 1979, in the Queen's Road Branch of National Bank of Pakistan Mst. Parveen Akhtar accused was caught red-handed while encashing a fictitious cheque. The interrogation led to the unearthing of a gang of swindlers which is alleged to have misappropriated over 22 Lacs of rupees (as so far detected) by getting huge amounts of money credited to fictitious accounts on forged and fictitious foreign remittances documents from Libya and withdrawal therefrom.
2. ' At the instance of Bank Managers of different Branches of the Banks defrauded, six separate cases have been registered under sections 403, 406, 409, 419, 420, 466, 467, 468, 471, P. P. C. And section 5
(2) of the Prevention of Corruption Act, 1947, and the same are being investigated by F. I. A. ' uhammad Haleem Chohan petitioner has applied for bail before arrest, Iftikhar Hussain Bokhari has applied for bail after arrest and co-accused Mst. Parveen, wife of Iftikhar Husain Bokhari, who was allowed bail by an Additional Sessions Judge of Lahore, suo motu notice for cancellation of her bail was issued by this Court and this order disposes of all the matters, i,e, Cr. M. Nos. 2997/B, 2998/B, 2999/B, 3000/B, 3001/B and 3002/B of 1979, filed by Muhammad Haleem Chohan petitioner, Cr. M. No, 3472/B of 1979 filed by Iftikhar Husain Bokhari petitioner and Cr. M. No, 3311/B of 1979 for cancellation of bail granted to Mst. Pa rveen.
2. I will first take up the case for bail before arrest of Muhammad Haleem Chohan petitioner. It has been contended : (i)that he is being victimised by the management because of trade union activities in the National Bank of Pakistan ;
(ii) that he is a complete stranger to these transactions. He has not signed (a) any cheque, (b) any advice, (c) any authentication, (d) verification, (e) payment, or (f) introduction ;
(iii) that he has nothing to do with the Branch (National Bank Kuchery Branch, Multan) ;
(iv) that there was no incriminating evidence, and
(v) that he has not been benefited by this fraud.
3. For the purposes of explaining the modus operandi and the roles played by each accused in various transactions of forgery and fraud, I consider it expedient for the sake of clarity to reproduce the judicial confession of Zahur Chishti co-accused, even though it looks a bit odd, and the portions relevant to the role of Muhammad Haleem Chohan petitioner are underlined in red and the relevant to the role of Iftikhar Husain Bokhari and Mst. Parveen in blue ink{{URDU TEXT}} ' Certified that I explained to the Zahoor Ahmed Chishti that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and that 1 believe that confession was voluntarily made. This confession has been recorded by me in my own hand and was read over to Zahoor Ahmed Chishti and was admitted by him to be correct and it contains full and true account of the statement made by him.
3. (Sd.) M.I.C.
4. ' Further evidence against petitioner Muhammad Haleem Chohan is available in the statements of Muhammad lqbal, Malik Fazal Hussain, Ch. Abdul Hamid, Shabbir Husain Abbasi, Iqbal }Matti, Sh.
5. Muhammad Iqbal and Shabbir Ahmad who are all officers of the National Bank of Pakistan. The most important is the statement of Sh. Muhammad lqbal, Staff Officer, Main Branch of the National Bank of Pakistan. The significance is that Muhammad Haleem Chohan petitioner had to open a Bank Account in the name of Aleem Chohan for encashing a Bank Draft (his share in the booty in one transaction) as inadvertently the draft had been prepared in the name of Haleem Chohan or may be to avoid leaving the traces of his implication he got the draft in the fictitious name of Aleem Chohan. For opening the account, he got from Sh. Muhammad Iqbal, Staff Officer, the account opening form etc. And completed the same under his own signatures in the -fictitious name of Aleem Chohan. The formality of signing introduction of the account-holder was performed by Maqsood Ilahi co-accused. Cheque Book No, SCKO 22261-70 was received by Muhammad Haleem Chohan in the fictitious name of Aleem Chohan and he signed the receipt of this cheque book in the Cheque Book Issuing Register. The word 'Chohan' in the Cheque Book Issuing Register is identified by the Bank Officers to be tallying with the specimen signatures of Haleem Chohan on the record of the Bank. Besides this, there is overwhelming evidence of responsible Bank Officers who have seen him on various occasions accompanying the co- accused at the time of some transactions later traced out to be fraudulent, i,e,, deposit or encashment of cheques. Etc. From the fictitious accounts. His argument that being well known he could not open a fictitious account in the name of Aleem Chohan, is not worth any serious consideration. As long as one is not suspected of committing any fraud, Banks overlook the genuine operation of a fictitious account for business and other reasons on both sides.
6. ' The prosecution has also placed on record different statements of his Bank Accounts to show huge turn over, but I would not attach much importance to the same at this stage, as while it is possible that 'stolen property' was being utilised, at the same time it is possible that he may be running some private business, which may not amount to an offence even though it may be some sort of misconduct during the course of his service.
7. Similarly, I do not attach importance to the argument that the petitioner Haleern Chohan is being humiliated on account of his Trade Union activities. A Trade Union leader does not have a licence for indulging in crime with impunity. If a thief commits an offence and his enemy reports it, in law, it does not make any difference as to who the complainant is as long as it is established, that a cognizable offence has been committed.
4. No doubt, the petitioner has been clever enough to avoid as much as possible, leaving documentary traces of his implication. Yet the judicial confession of Zahur Chishti alone is enough to implicate him. It is a settled principle of law that a confession, whether judicial or extra-judicial, if B believed, is by itself sufficient to base a conviction not only of the confessin accused but also of the co-accused implicated by him. For the present there is nothing on record to show Zahur Chishti, the confessing accused, as having any motive for falsely implicating Haleem Chohan petitioner in his confessional statement. This confessional statement prima facie, is corroborated by overwhelming direct as well as circumstantial evidence. The Investigating Agency has also placed on record copies of the P. I. A. Passengers List to show that Haleem Chohan petitioner travelled by P. I. A. Along with his co-accused on 20th August 1978. There is also evidence with the Investigating Agency that he stayed in the company of the co-accused in a hotel. This was a trip for the withdrawal of money from a fictitious account wherein huge amount had been credited through a forged foreign remittance form.
8. The police requires his person for the purposes of investigation and recovery of huge amount.
9. According to the prosecution, there is every likelihood of startling disclosures on the interrogation of Haleem Chohan. Some co-accused have already absconded. Information qua them has to c be obtained and disclosures of any more offensive transaction may be expected. In the light of the evidence alrerdy available, subject to any new developments, I am not very sure if this would be a case of bail afte arrests much less to talk of a bail before arrest.
10. ' It appears that an impression has gained ground that bail before arrest is a matter of right with the accused and irrespective of the implication, nature of the offence and the quantum of evidence the offender can successfully approach this Court for bail before arrest. I agree with the learned counsel for the petitioner that bail ought not to be refused merely because a sum of more than twenty-two lacs of rupees is alleged to have been swindled, but while deciding the question of bail before arrest, the nature of the offence alleged, the nature and quantum of the evidence prima facie available qua the implication of the accused are decisive factors. Bail before arrest is allowed in rare cases and ample guidance can be found in Muhammad Yamin's case (1) and Sh.
11. Zahoor Ahmad's case (2), suffice it to say that in the circumstances stated above, no ground for bail before arrest is made out. Accordingly, I dismiss Cr. M. Nos. 2997/B, 2998/B, 2999/B, 3000/B, 3001/B and 3002/B of 1979.
5. Now I take up the case of Iftikhar Hussain Bokhari accused. From the above-quoted judicial confession, it is evident that he is one of the principal offenders. He has knowingly been an active partner in crimes detailed in the extra-judicial confession. No doubt, a bail ought not be refused on the mere ground that a large amount is involved, nor be refused by way of a punishment, but the concept of bail in non-boilable offences is based on the presence of an area of doubt qua the implication of an accused in a non-boilable offence and it is on this basis that the Courts have considered the matter of the implication of an accused person as one of further inquiry and, therefore, exercised its discretion in his favor and granted him bail, but once it is clear to a Court that there is no doubt about the implication of the accused in an offence which is not boilable, subject to all just exceptions, the discretion to allow bail gets very much restricted. Besides that, Courts do not function in vacuum and E must not overlook the retributory, reformative or deterrent effect or possible repercussion on the community as a whole of a discretionary order. For the preservation and establishment of a peaceful law-abiding society is the sole objective of the entire judicial superstructure. I am of the view that, in a proved matter, if there is an organized or a pre- planned crime, it needs a stern handling and the discretion should not be exercised in favor of offenders who have taken to crime as a rewarding profession otherwise the entire socio-moral fabric of the society will collapse. The harvest of judicial laxity in the field of correction is excessive recidivism and a crime rate that is a national scandal and if the Courts fail to keep the balance, we will be buried under the overload of our own laxities.
12. ' Lastly it is contended that Iftikhar Husain Bokhari petitioner has some heart trouble. There is a hospital in the Jail and if the hospital or authorities are of the opinion that the accused needs better treatment, Jail Rules provide for treatment from better staffed hospitals.
13. ' In this view of the matter, in the presence of overwhelming credible evidence available against the petitioner Iftikhar Husain Bokhari, his wife and daughter, which prima facie shows them as partners in this organised gang of swindlers, I do not find him entitled to discretionary relief of bail and dismiss Cr. M. No, 3472/B of 1979.
6. Now I will deal with the case of Mst. Parveen, wife of Iftikhar Husain Bokhari co-accused. She has been allowed bail primarily on the ground that she is a woman and that she had a suckling child and was no longer wanted by the police for purposes of investigation.
14. ' Jail Rules provide for the lodging of a suckling child along with the accused. As for the ground that she was no longer wanted by the local
(1) 1977 P Cr. L J 387 (2) PLD 1974 Lah. 256
(1) PLD 1978 SC 256 ' police for investigation, it is understandable that with the huge swindled money at their disposal, it would not have been very difficult to manipulate the 'co-operation' of the local police and it is surprising that at that time no recovery had been effected 2t her instance, nor her daughter Mst.
15. Robina has been apprehended. The F. I. A. Needs her person for interrogation for recovery of the lacs of rupees swindled, regarding the hide out of her daughter. Mst. Robina, who has not surrendered herself to law so far, and several other matters. Mst. Parveen was caught red handed.
16. She is the principal accused in this case. She and her daughter Mst. Robina had been opening fictitious accounts in different Banks under fictitious names, travelling all along with the co- accused to different banks in different cities for the withdrawal of huge sums of money, F which she fully knew, did not belong to her and that the same had been fraudulently credited to such accounts by means of forged foreign remittance documents. She was so cruel that she involved her own daughter also in the commission of these offences. There is very credible documentary, direct as well as circumstantial corroboration of the confessional evidence of co-accused available against her showing her as the principal accused in the commission of non-boilable offences. The mere fact that she is a woman, would not entitle her to bail as a matter of right. A person being a minor, a woman or old and sick or infirm is one of the considerations to be borne in mind while deciding the question of bail, but not the only consideration. If we recognize the converse as correct, clever criminals will adopt the technique of themselves remaining in the background and making a woman or a teen-ager as the principal tool in a crime and get away with it.
17. ' Only the Sessions Judges of Districts have been gazette as Special Judges ex officio and not the Additional Sessions Judges, therefore, prima facie, Sh. Muzaffar Hussain, Additional Sessions Judge, Lahore, did not have the jurisdiction to entertain or grant bail after arrest to Mst. Parveen for the reason that the case was tribal exclusively by a Special Judge, as the co-accused being Bank employees and the Banks having been nationalized they were public servants and the offences with which they are charged are included in the Schedule to section 5 of the Prevention of Corruption Act, 1947.
18. As observed earlier, in a prima facie case of strong evidence implicating an offender and at the same time, excluding the chances of malicious implication, while exercising my discretion, I draw a distinction between an impulsive or incidental crime as against an organised, pre-planned or a well-considered crime and decide accordingly. According to my tentative sifting of available evidence (which I am supposed to do and I would refer to Khalid Javed Gillan's case (1) the petitioner is shown fully implicated as the principal offender in several transactions of organized forgery and fraud and the offences are non-boilable. I consider it expedient to cancel the bail of Mst. Parveen allowed to her vide order dated 19th June, 1979.
19. ' Cr. M. No, 3311/B of 1979 stands disposed of.
20. ' However, it will be open to the trial Court to reconsider the question of bail on the recording of material prosecution evidence and if the petitioner succeeds to make out a case of bail.