Through this petition, petitioner Umar Khubaib seeks pre-arrest bail in case FIR No.110/2013 dated 10.05.2013, registered at Police Station FIA/CCC, Lahore, in respect of offences under sections 409, 420, 468, 471, 477-A, 34, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947.
Allegation against the petitioner is that he along with his co-accused has committed forgery and fraud by dishonestly and deceitfully withdrawing an amount of Rs.23,00,000/- from the complainant-bank.
2. Heard. Record perused.
3.At tile very outset, learned Law Officer has contended that section 498, Cr.P.C. Does not apply in the cases falling under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 and when there is a bar for a specific relief that cannot be granted by invoking Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 because the question of bail is always a question of analyzing the facts of a specific case that exercise is not permissible under the writ jurisdiction.
4. On the other hands learned counsel for the petitioner has contended that earlier the petitioner had filed Crl. Misc. No.14668-B of 2014 for the same relief, but the same was withdrawn on the objection raised by the learned Law Officer to avail the remedy through writ petition. However, the learned counsel placing reliance on the cases of Khan Asfandyar Wall and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 Sc 607) and Chairman, National Accountability Bureau, Islamabad and another v. Astf Baig Muhammad and others (2004 SCM R 91) has stated that in the absence of any express provision for pre-arrest bail in such like cases the bail can also be granted under Article 199, of the Constitution of Islamic Republic of Pakistan, 1973.
5. First, we shall discuss the scope of pre-arrest bail and application of section 498, Cr.P.C. In the cases falling under the relevant special law and for ready reference, sections 5(6) and 10 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 are reproduced below:- Section 5. Procedure of a Special Court.
(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.
Section 10. Appeals from sentences passed by Special Court, etc.
(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 the 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) ...............................
(3) ...............................
The question regarding the scope of section 498, Cr.P.C. Came up for hearing before a learned Division Bench of this Court in the case of Abdul Majid v. The Judge, Special Court (Offences in Banks), Lahore and another (1985 PCr.LJ 890) and it was held that power to grant pre arrest bail vests with the Special Court as well as with the High Court. Relevant portion of the order is reproduced below:- "The Special Court constituted under the Ordinance exercises all the powers conferred by the Code on a Court of Session 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."
The same question was duly answered in the case of Muhammad Moosa v. The State (1986 PCr.LJ 578) wherein the Hon'ble Division Bench has concluded as under: "The High Court has inherent powers under section 498 to admit a person to bail keeping in view the merits of the case. Sections 497 and 498 have not been excluded in subsection (6) of section 5. Section 10 of the Ordinance would attract after the conviction is recorded. During the pendency of the trial the High Court can exercise power under section 498. There is no specific bar of admitting an accused facing trial before a Special Court to bail as laid down in section 10 of the Ordinance."
The Hon'ble Supreme Court of Pakistan in the case of Allied Bank of Pakistan Ltd. v. Khalid Farooq (1991 SCM R 599) while dealing with the same question has observed as under:- "With regard to the question of ouster of power, it is a recognized principle of law that a claim in respect of the ouster of power of the High Court in respect of any matter or subject available to it under the Codes of Civil or Criminal Procedure cannot be lightly accepted, unless there is a clear, definite and positive provision ousting the jurisdiction. Express words or clear intendment or necessary implication are required to take away the jurisdiction of a High Court or any superior Court. In Zahoor Elahi v. The State (PLD 1977 SC 273), this Court has held that it is a well- settled principle relating to the construction of statutes that the exclusion of jurisdiction of superior Courts is not to be readily inferred, that there is a strong leaning against any such exclusion, that this rule is deep seated and if it is to be overturned, it must ordinarily be done by a clear, definite or positive provision, not left to mere implication. In this case the Supreme Court was considering the effect of section 13(1) of the Defence of Pakistan Ordinance of 1971, and rule 210 of the Rules framed thereunder and held that the High Court's jurisdiction to admit to bail persons under section 498 of the Code was not ousted. There are other cases as well, which need not to be referred; it being sufficient to state the principle. ........................................................................................................................................................................................................................................................................
It is, therefore, clear that section 5(6) of the Ordinance does not completely oust the applicability of section 497 of the Code in respect of bails and though the rule of subsection (I) of section 497 with a slight change and the exception to the said rule as contained in the second proviso of the same subsection have been introduced in subsection (6) of section 5 of the Ordinance, which is couched in negative language, no express or implied ouster of the remaining provisions of section 497 of the Code can be spelt out from subsection (6) of section 5 of the Ordinance."
Keeping in view section 5(6) read with section 10 of the Ordinance and the case law referred above, we are of the considered view that there is no bar to file a petition for pre-arrest bail under section 498, Cr.P.C. Prior to conviction of an accused under the Special Law i.e. Offences in Respect of Banks (Special Courts), Ordinance, 1984. Therefore, this writ petition filed by the petitioner is misconceived; however, in the interest of justice, the same is converted into a petition filed under section 498, Cr.P.C. Office is directed to assign a number of criminal miscellaneous to this petition after observing usual formalities in this regard.
6. As per contents of the FIR, there is direct allegation that co-accused of the petitioner namely Khurram Raza has fraudulently opened a fake bank account in the name of Muhammad Tahir Javed. Petitioner Umar Khubaib is not nominated in the FIR and he has been implicated in this case on the statement of his co-accused Khurram Raza made before the learned Area Magistrate under section 164, Cr.P.C. Wherein there is no allegation against the petitioner that either he opened the alleged fake account or withdrew any amount from the same rather the only role assigned to him is of an abettor. It is worth mentioning that statement of Khurram Raza prima facie is an exculpatory statement as he has confessed his participation in the offence under the threat of his co-accused and not of his own. Learned Law Officer and the learned counsel for the complainant-bank frankly concede that except the exculpatory statement of co-accused Khurram Raza there is no other evidence on the record against the petitioner. In the peculiar circumstances of this case, question of guilt of the petitioner is a matter of further inquiry and his role of abettor, if any, can only be determined by the learned trial court after recording of some legal evidence, if any comes on record against the petitioner.
7. No doubt grant of pre-arrest bail is an extra-ordinary relief and in ordinary circumstances cannot be granted in routine, but at the same time it is well settled principal of criminal jurisprudence that for sending a person behind the bars there must be some legal/tangible evidence with the prosecution to establish at least a prilna facie case against him. In the absence of any such evidence, as in this case, sending the petitioner behind the bars is altogether unjustified especially when no question of any recovery is involved against him.
8. This petition is, therefore, accepted and the ad interim pre-arrest bail already granted to the petitioner by this Court vide order dated 23.12.2014 is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs.46,00,000/- (Rupees forty six hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial court, as required under section 5(7) of the Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984).
9. It is, however, clarified that the observations made herein above are just tentative in nature and strictly confined to the disposal of this bail petition.