' SYED MAHMOOD ALAM, J.---This Criminal Miscellaneous Application is directed against the order dated 7-10-2008 passed by the Presiding Officer of the Special Court (Offences in Banks) Sindh at Karachi, whereby the application for reduction of surety amount was dismissed.
2. Precisely, the facts of the prosecution case are that, in connivance with the Bank officials of ABL the applicant had opened different accounts and these accounts were being operated by him and a number of cheques issued by the State Bank of Pakistan were deposited by him in the said accounts despite the facts that the said cheques were issued in favour of other persons and not in favour of the applicant. Per interim report of the Investigating Officer the alleged amount of different cheques deposited by the accused was Rs,39.414 million against 1611 cheques of State Bank of Pakistan.
3. The tenure of occurrence is between 2005 to 2008 and the F.I.R. Was subsequently registered after the inquiry on 20-8-2008 and four persons have been nominated including the applicant who is the Chief Manager of ABL, at it's Hyderi Branch; as well as Cashier; namely, and Umer Farooq, a Clerk in Income Tax Department. The total charge against all the other accused person was about Rs,83.00 million, while against the applicant was Rs,39.414 million.
4. That the learned trial Court was pleased to grant bail to the applicant on 15-9-2008 subject to furnishing of surety in the sum of Rs,40.00 million. The applicant ultimately, filed an application for reduction of surety amount, but the same was dismissed by the impugned order in which the detailed reasons have been given viz, that the applicant voluntarily appeared before the learned Judicial Magistrate and recorded his confession in respect of deposit of the cheques of dead files, and of the rebate and income tax, which were given to him by the co-accused, as well as admission of the withdrawal of the said amounts by him, therefore, per section 5(7) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (herein after referred to as the 'Ordinance, 1984') the surety amount could not be reduced.
5. The learned counsel for the applicant has contended that all the fraud has been committed by the co-accused Umer Farooq, who was UDC in Income Tax Department and had committed the offence and used the applicant in the commission of crime and in fact he was the actual beneficiary, however, bail has been granted to him by this Court in the sum of Rs,1,00,000 only, therefore, the applicant is also entitled to the same relief.
6. Mr. Haider Ali, learned Federal counsel has opposed the grant of bail and has further submitted that plethora of evidence is available against the applicant and his wife in the shape of documentary evidence, as well as the confession of the applicant, but even then he was lucky enough as bail has been granted to him by the trial Court, and that by virtue of section 5(7) of the Ordinance, 1984, the learned trial Court rightly fixed the surety amount against the charge 'amount i.e, approximately Rs,40.00 million, hence this application is liable to be dismissed.
7. Heard both the counsel and perused the record.
8. Per charge sheet the amount against all the four accused has accumulated to Rs,83.00 million, while Rs,39.414 million were deposited in the account of the applicant and he and his wife encashed the same, therefore, surety was fixed for Rs,40.00 million. Though the prime facie case has been made out against the applicant, nevertheless, the learned trial Court has granted bail to the applicant and the said order has not been challenged so far. This is a special law, therefore, the procedure of Special Court has been defined in section 5 of the Ordinance, 1984 and section 5(7) thereof reads as under:-- "5(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, it shall not be less than the said amount."
9. That the surety against the charge amount has been enhanced by Act XVI of 1997, while initially it was twice of the charged amount. The same controversy arose before the Division Bench of this Court in the case of Nisar Ahmed Dina v. The State in Criminal Miscellaneous Application No,194 of 2003 and bail was granted to him by the trial Court in the sum of Rs,20.00 million. The applicant filed an application for reduction of amount, but the trial Court only reduced the same to Rs,1,700,000. The said order was impugned before this Court, but the same was dismissed vide order dated 26-5-2004 (by the Division Bench of this Court consisting of Wahid Bux Brohi and Rahmat Hussain Jafferi, JJ, as they then were). Thereafter, the said order dated 26-5-2004 was impugned before the Honourable Supreme Court by filing Criminal Petition bearing No,49-K of 2004 and the Honourable Full Bench consisting of Iftikhar Muhammad Chaudhry, Rana Bhagwan Das and Syed Deedar Hussain Shah, JJ, (as they then were), partially allowed the petition and held as under:-- "Admittedly, prosecution has alleged that there were six accused person, therefore, proportionately dividing the liability, each accused shall be liable to the extent of about Rs,33 lacs. Thus, we are of the opinion that keeping in view the facts and circumstances of the case, ill health of the petitioner and on human considerations, the surety amount being demanded from petitioner can be reduced to the extent of Rs,35 lacs, to meet the ends of justice."
10. Per confession of the applicant, the said cheques were delivered to the applicant by the co- accused Umer Farooq. Though his bail was granted in the amount of Rs,100,000 as till then the confession had not been recorded, therefore, the amount of Rs,100,000 as surety. Per the prosecution four individuals are involved in the above case and one person could not singularly commit such crime, therefore, the surety amount could be divided among all four accused.
Therefore, the applicant is liable to pay surety amount in the sum of Rs,21.00 million.
11. Accordingly, for the foregoing reasons, the surety amount fixed for the release of the petitioner on bail by the trial Court in the sum of Rs,40.00 million is reduced to Rs,21.00 million with one surety and P.R. Bond in the like amount to the satisfaction of the trial Court.
12. In the above terms this application is allowed.