' Muhammad Rizwan, petitioner, seeks bail after arrest in case F.I.R. No,8, dated 17-2-2003 registered against him and others at Police Station FIA CBC-I, Lahore for offences under sections 406, 420, 468, 471, 109, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947, on the complaint lodged by Muhammad Munir, Manager, National Bank of Pakistan, Jando Ke Goraya Branch, Daska, District Sialkot. The allegation against the petitioner is that he was allowed seasonal cash finance of Rs,20,00,000 on 6-1-1999 against the pledge of 1900 bags of rice; he got encashed an amount of Rs,19,50,000 through different cheques till 25-11-1999. He allegedly misappropriated the pledged stocks with connivance of Basharat Ahmad, ex-Manager of the aforesaid Branch of the Bank; an amount of Rs,21,63,000 was payable, but he paid the amount of Rs,9,75,000 and misappropriated Rs,13,20,000. He was arrested on 16-2-2003. The petitioner filed a petition for his release on bail, which has been declined by the Special Court (Offences in Banks), Lahore vide order, dated 26-3- 2004, hence this petition.
2. Before us, learned counsel for the petitioner contends that there is neither any entrustment to nor domain of the petitioner over the pledged rice. He has not dishonestly misappropriated or converted to his own use the pledged rice, as such, provisions of section 406, P.P.C. Are not attracted; there is no allegation of preparing forged documents or using the same therefore, sections 468/471, P.P.C. Are also not applicable to the facts of the case; section 5 (2) of the Prevention of Corruption Act, 1947 is made out against the Bank Manager, namely Basharat Ahmad who has neither been arrested nor challaned in the case. Further that the rice was pledged and lying in the Ittehad Rice Mills, Lorhki; Godown-keeper of the Mills was in charge of the godown; the petitioner never lifted the rice as is evident from the statements of Muhammad Boota son of Khushi Muhammad and Jamshed Gill son of Ijaz Gill, respectively Chowkidar Ittehad Rice Mills and Godown-Keeper, National Bank Jandoke Branch; during inquiry, Basharat Ali, Ex-Manager of the aforesaid Branch of the Bank, has admitted his liability and agreed to pay the amount; the inquiry officer namely Muhammad Salim recorded a finding on 5-11-2002 that in the misappropriation of rice the petitioner and Qudratullah accused had not played any role and recommended the case to be registered against the ex-Manager of the Branch of the Bank.
3. On the other hand, the learned counsel for the State has argued that in view of provisions of section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (Ordinance No,IX of 1984) this Court has no jurisdiction to grant bail in respect of the offences under the Ordinance.
Further contends that the petitioner pledged the rice with the Bank, received an amount of Rs,2 million as loan, the loan amount was not deposited and misappropriated the pledged rice with connivance of his real uncle Qudrat Ullah and Basharat Butt, ex-Manager of the Bank. According to him, the provisions of section 405, P.P.C. Are attracted which are punishable under section 406, P.P.C. And in this view of the matter, the petitioner is not entitled to bail.
4. Firstly, we would advert to the question of jurisdiction of this Court to grant bail to the petitioner for the offence under the Offences in Respect of Banks (Special Courts) Ordinance, 1984. To appreciate the question, reading of subsection (6) of section 5 of the aforesaid Ordinance would be relevant, which is reproduced hereunder:-- "(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."
5. The words any other Court' in the above provision of subsection (6) of section 5 of the Ordinance include the High Court. Subsection (8) of section 5 of the Ordinance gives us an indication that the powers to grant bail may be sought under the Cr.P.C. The only restriction placed by subsection (6) is that if the Court intends to do so it must satisfy itself that there appear reasonable grounds to believe that the accused is guilty of a Scheduled Offence. In this view of the matte, we are constrained to hold that the jurisdiction of the High Court to grant bail to the accused involved in cases under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 is in-tact. See cases reported as Mst. Zeenat Ali v. The State (1985 PCr.LJ 2592 Lahore ) and Muhammad Moosa v. The State (1986 PCr.LJ. 578). In case reported as Allied Bank of Pakistan v. Khalid Farooq (1991 SCM R 599), while interpreting the provisions of section 5 (6) of the Ordinance ibid it was held jurisdiction to grant bail was not restricted with the Special Court alone. In this view of the matter, we hold that section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (Ordinance No,IX of 1984) does not curtail the powers of the High Court to grant bail. The petitioner is neither a public servant nor there is any allegation of preparing fictitious or forged documents and using the same, therefore, provisions of section 5(2) of the Prevention of Corruption Act, 1947 and sections 468 and 471, P.P.C. May not be attracted. To make out a case under section 406, P.P.C., according to the definition of 'criminal breach of trust' contained in section 405, P.P.C., following ingredients, must co-exist:-- (i)- That the property should be entrusted in any manner to the person; (ii)- He should have the domain over the property;
(iii) He dishonestly misappropriates or converts that property to his own use; or
(iv) Dishonestly uses or dispossesses the property in violation of any direction of law.
6. The entrustment to the Manager of the rice and domain over it may be there. To see whether there appear reasonable grounds for believing that the petitioner has misappropriated or converted to his own use that property, to our view, this requirement is lacking.
7. During the inquiry (No,11 of 2001), it was observed by Muhammad Salim Sadiq, inquiry officer/Inspector, FIA/CBC-I, Lahore, that Muhammad Rizwan was liable to repay the amount and from the circumstances of the case it has been proved that Muhammad Rizwan and Qudratullah had no part in misappropriation of the pledged stock and they were innocent; however, Basharat Butt was responsible for the same. Therefore, he recommended that the case be registered against Basharat Butt, Ex-Manager of the NBP Jandoke Goraya Branch. It has been conceded that so far said Basharat Butt, ex-Manager, has not been arrested. Muhammad Boota son of Khushi Muhammad employee of Ittehad Rice Mills, Lorhki where the pledged stock of rice of the petitioner was lying, has stated that Muhammad Rizwan never lifted the stock. Jamshed Gil, Godown-keeper, NBP, Jandoke goraya Branch also made similar statement that the pledged stock was lifted by Qudratullah. Basharat Butt also appeared in the inquiry and agreed for deduction of the outstanding amount payable by the petitioner from his dues payable to him under the Golden Hands Shake Scheme. The agreement, dated 12-2-2002 Annexure-B to this effect has also been executed by Basharat Ali in favour of the petitioner. On the basis of above stated facts, the position which has emerged on the record is that there may be entrustment and domain over the stock of rice which was lying in Ittehad Rice Mills but the petitioner had not lifted the pledged goods/rice from the godown of Ittehad Rice Mills when the keys of the same were with Basharat Butt, ex- Manager of the Bank, and Muhammad Boota and Jamshed Gil have also made him responsible.
We, therefore, are inclined to grant bail to the petitioner.
' Resultantly, the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs,10 lac (one million) with two sureties, each in the like amount to the satisfaction of the trial Court.