' QURBAN SADIQ IKRAM, J.-Muhammad Yaloob Ali petitioner was allowed bail by a short order by this Court in a case registered against him vide F. I. R. No 265, dated 3-11-1982 (Roznamcha Report No, 44), P. S. Misri Shah, Lahore, under section 409/477-A, P. P. C. With an observation that reasons for the bail will be recorded later. These are as follows:
2. The petitioner Muhammad Yaqoob Ali is employed as an Assistant in the Muslim Commercial Bank, Misri Shah Branch, Lahore. The occurrence in this case allegedly took place on 6-10-1982, and this case was registered on 3-11-1982, on the basis of a letter dated 26-10-1982, written to the S. H.
0. Police Station, Misri Shah, Lahore by Qamarul-Islam, Manager of the said Branch. It was alleged in the F. I. R. That Mqt. Naveeda Rani visited the Bank Branch on 25.9-1982 for deposit of Rs, 3,300 in her P. L. S. Account No,
121. She handed over this amount to Muhammad Yacioob Ali petitioner for deposit in her account. She visited the Bank Branch again on 6-10-1982, to inquire about the balance in her account. It was noted that the said amount of Rs, 3,300 had not been deposited in her account, The Manager called the petitioner who begged to be excused and on that very day deposited the said amount in the account of Mst. Naveeda Rani.
On that very day i,e, on 6-10-1982, Muhammad Hanif who also had his P. L. S. Account No, 148 with the said Branch, came to inquire about the credit of a cheque in the sum of Rs, 25,200 in his account. It was stated by Muhammad Hanif that he had given that cheque on 2-9-1982 to Muhammad Yaqoob All petitioner for credit in his account. On verification it was found that the said amount had not been credited in the account of Muhammad Hanif and instead the same was credited on 4-9-1982 in Account No, 75 belonging to Muhammad Pervaiz. It transpired that Muhammad Pervaiz withdrew Rs, 65,000 by availing the facility of overdraft from his account which has Rs, 36,291.50 in his balance on 4-9-1982. It also transpired that on 16-9-82, a sum of Rs, 10,200 was deposited in P. L. S. Account No, 148 belonging to Muhammad Hanif and a sum of Rs, 15,000 was paid in cash by Muhammad Yaqoob Ali petitioner to the Manager which was accordingly credited in the account of Muhammad Hanif. The entry of cheque dated 2-9-1982 was reversed from Account No, 75 belonging to Muhammad Pervaiz. In the opinion of the Branch Manager, the accused was guilty of misappropriation of the sum of Rs, 25,200 and as such, he got the present case registered against him.
3. The police after investigation of the case challaned the accused. He was facing trial in the Court of Special Judge Central (Banking), Lahore. During the trial, six out of ten witnesses had already been examined which included material prosecution witnesses, when on 23-2-1984, the President of of Pakistan promulgated "Offences in Respect of Banks (Special Courts) Ordinance No, IX of 1984 (hereinafter called the Ordinance) for speedy disposal of certain offences committed in respect of Banks and for matters connected therewith or incidental thereto. After promulgation of this Ordinance, a Special Court was constituted whereafter all cases relating to scheduled offences pending in any Court stood transferred to the special Court constituted under this Ordinance. The case against the present petitioner also was transferred to the Special Court constituted under this . Ordinance. The bail of the petitioner stood cancelled after the transfer of his case to the Special Court in view of subsection (1) of section 4 of the Ordinance. Ari application was, therefore, moved before the Special Court under subsection (6) of section 5 of the Ordinance for grant of bail to the petitioner but the said application was dismissed on 3-9-1984. Hence this petition. The Special Court came to the conclusion that there was reasonable ground to believe that the petitioner has committed scheduled offence under section 409, P. P. C. And as such, concluded that there was prohibition in subsection (6) of section 5 of the Ordinance for grant of bail to such person.
4. In support of this petition, it was contended by the learned counsel for the petitioner that the prohibition under section 5(6) of the Ordinance was not absolute and an accused person could be allowed bail in the facts and circumstances of the case ; that there were no reasonable grounds to believe that the accused was guilty of the offence ; that the accused remained on bail during the trial before the Special Judge Central and did not in any way, misuse the said concession and that there was no physical misappropriation of any amount by the petitioner and the only allegation against him was that he credited the amount of the cheque in favour of Muhammad Hanif in the account of Muhammad Pervaiz. It was, therefore, argued that it was only a clerical mistake involving no criminal liability in the matter.
3. The learned counsel for the State vehemently opposed this petition for bail. It was contended by him that prohibition to allow bail to an accused was absolute under section 5(6) of the Ordinance ; that the High Court has no jurisdiction to allow bail to the petitioner under the Ordinance ; and that there were reasonable grounds to believe that the accused-petitioner was guilty of the scheduled offence.
6. We have considered the above arguments. A study of the Ordinance would indicate that it was promulgated to provide for speedy trial of certain offences committed in respect of Banks and for matters connected therewith or incidental thereto. Section 2 of the Ordinance provides definition to certain terms. Clause (d) of this section defines "scheduled offence" to mean an offence specified in the First Schedule and alleged to have been committed in respect, or in connection with the business, of a Bank. Clause (e) of this section defines "Special Court" to mean a Special Court constituted under section 3. Section 3 of this Ordinance provides for the constitution of Special Courts and its subsection (1) lays down that "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 a High Court." Section 4 pertains to scheduled offence to be tried by Special Court. Subsection t 0 lays down that "notwithstanding anything contained in the Code. Scheduled offences shall be triable exclusively by a Special Court. Subsection (3) of this section lays down that "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." Subsection (5) lays down that "the Special Court shall not, by reason of the said transfer, be bound to re-call and re-hear any witness who has given evidence in the case before transfer and may act on the evidence already recorded by or produced before the Court which tried the case before the transfer" and subsection (7) provides regarding cancellation of bail which is reproduced below :- "(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 shall stand cancelled."
Section 5 of the Ordinance deals with the procedure of a Special Court. It regulates the manner of taking of cognizance of any szheduled offence, adjournment of a case during the trial, re-call and re-hearing of the evidence and recording of evidence in the absence of the accused. Subsection
(6) and subsection (7) pertain to release of accused on bail which are reproduced below :- "(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."
' Subsection (8) of section 5 of the Ordinance lays down that "a Special Court shall, in matters with respect to which no procedure has been prescribed by this Ordinance, follow the procedure prescribed by the Code for the trial of cases by Magistrates." Section 6 of the Ordinance deals with the powers of Special Court and is reproduced below :- "6. Power of Special Court.-(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.
(2) For the purposes of this Ordinance, the provisions of the Pakistan Penal Code (Act XLV of 1860), specified in the Second Schedule shall have effect to the modifications specified therein.
(3) Where a Special Court passes a sentence of fine, whether in addition to any other punishment or not, the amount of such fine shall be fixed by it having regard to the gravity of the offence for which the accused person is convicted and, where the Special Court finds the offence to have been committed in respect of a specified amount, shall not be less than twice the said amount.
(4) Where a Special Court passes a sentence of fine, the Court shall order the whole or any part of the fine recovered to be applied in the payment to the bank in respect of which the offence was committed of compensation for the loss caused to it by the offence."
' Section 7 of the Ordinance prohibits the transfer of any property after a Special Court has taken cognizance of a scheduled offence without its previous permission and if anyone contravenes this provision, he was made liable to punishment which may extend to three years and fine. Section 8 of the Ordinance prohibits an accused from leaving Pakistan after the Special Court has taken cognizance of a scheduled offence against him. Section 9 pertains to burden of proof during the trial and section 10 relates to appeals from sentences passed by Special Court which is reproduced below :- "-J0. 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 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 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 of the Ordinance lays down that the provisions of this Ordinance shall have effect notwithstanding anything contained in the Code or in any law for the time being in force. At the moment, the scheduled offences under the Ordinance are 403, 406, 408, 409, 467, 468, 471, 472, 473, 475 and 477-A. The only offence punishable under section 7(2) under this Ordinance has also been included in this sehedule.
7. A study of the Ordinance would make it clear that it is in substance a law to regulate the procedure of trial of offences in the Special Court.
' Excepting punishment under section 7(2), this Ordinance did not contemplate punishment for any offence besides the scheduled offences. The Ordinance does not in any way restrict or limit the power of High Court under the Code of Criminal Procedure (hereinafter referred to as the Code).
The only restrictions placed on the power of the High Court are contained in section 10 of this Ordinance. This section empowers a Division Bench of High Court within whose jurisdiction the sentence has been passed, to hear appeal of an accused convicted by a Special Court. This section also provides that "no Court shall have authority to revise such sentenc!, 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 has any jurisdiction of any kind in respect of proceedings of a Special Court". It is, therefore, clear that excepting these restrictions, the powers of the High Court under the Code remain intact. It is correct that the trial of scheduled offences under the Ordinance is within B the exclusive jurisdiction of the Special Court but the High Court being the appellate Court will have all incidental and ancillary powers to deal with the said cases under the Code within the limits provided by subsection (1) of section 10 of the Ordinance. Thus, the power of the High Court to grant bail in a pending case under section 497, Cr. P. C. Has not been taken away by any provision of this Ordinance. The High Court being the appellate authority, will have jurisdiction in all incidental and ancillary matters during C pendency of the trial before the Special Court as well. In support of this view, reliance is placed on Shahzad Hussain and another v. The State (1). Shahzad Hussain and Muhammad Siddique were being prosecuted under the Suppression of Terrorist Activities (Special Courts) Act of 1975. They challenged an order of the Special Court before the High Court under sections 439 and 561-A, Cr. P. C. A similar objection to the jurisdiction of the High Court was taken. A perusal of section 7 of the said Act would indicate that the provisions of section 10 of the Ordinance were identical to the provisions of section 7 of the said Act. After considering the relevant law, the learned Judge came to the conclusion that the powers of High Court under sections 439 and 561-A, Cr. P. C. Could not be said to have been taken away pertaining to the interim or interlocutory order.
It was further held that the inherent jurisdiction and revisional powers of the High Court remain intact unless specifically taken away by the Act. The learned In further held* that if the intention of the Legislature had been to-exclude other Courts in the matter of bail for offences falling under the Schedule of Act XV of 1975, words "or, by any other Court" would not have appeared in section 5(6).
The only bar placed in the matter of bail is that bail shall not be allowed if there appear reasonable grounds for believing that the accused has been guilty of a scheduled offence. It was further held that the bar to allow bail to the accused was not absolute and each case is to be dealt on its own merits. The provisions of the Ordinance and the provisions of Act No, XV of 1975 are absolutely identical. Thus, relying on the judgment in the case of Shahza I Hussain and another, we are of the view that the High Court has the jurisdiction to adjudicate upon a bail matter in a case pending before the Special Court.
8. The power of the High Court to allow bail under section 497, Cr. P. C. Having not been taken away by the Ordinance, High Court can allow bail to an accused in a pending case. This aspect of the case can be looked into from another aspect as well. Section 5 of the Code provides fo the procedure to be followed for trial of offences under the Pakistan Penal
(1) PLD 1980 Lah. 54 ' Code as well as for offences under any other law. It is reproduced as follows :- "55.=(1) All offences, under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences, under any other law shall be investigated, be inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
According to subsection (2) of section 5, all offences under any other law shall be investigated, be enquired into, tried, and otherwise dealt with according to the Code subject to any special law which may provide special procedure for the same. As stated above, the powers of the High Court under the Code F have been kept intact excepting the limitations placed in subsection (1) of section 10 of the Ordinance. The High Court will, therefore, have jurisdiction to dispose of all matters which are incidental or ancillary to the trial of an accused person under a scheduled offence. This power includes the grant of bail to an accused person.
9. The next point urged by the learned counsel for the State was that the Special Court was not a Court subordinate to the High Court and as such, this Court has no jurisdiction to allow bail in a case pending trial under the Ordinance. The precise argument of the learned counsel was that the High Court has no control or power of superintendence on the Special Court and as such, the Special Court cannot be considered to be a Court inferior to the High Court, specially when it is being prestded over by a sitting Judge of this Court. We find that this argument is without any force. According to section 10 of the Ordinance, High Court is the appellate Court against the judgments of the Special Court. The appellate Court can exercise all powers of revision under section 435/439, Cr. P. C. And powers of appeal under Chapter XXXI of the Code. These powers have not been taken away by the Ordinance. Secondly, under section 5(8) of the Ordinance, 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 cases by Magistrates.
Section 6 of the Ordinance lays down that the Special Court "shall have all powers conferred by the Code on a Court of Session exercising original jurisdiction". These provisions make it clear that though the Presiding Officer of the Special Court may be a person who had been or is a Judge of the High Court will exercise powers conferred by the Code Court of Session exercising original jurisdiction and thirdly, Article 175 of the Constitution of Pakistan, provides only one High Court, in a Province. No other Court can be equated with the High Court in a Province and, therefore, a Special Court presided over by a sitting Judge will be inferior to the High Court having appellant jurisdiction against the judgments of the said Special Court. In this view of the matter, we are of the opinion that the Special Court constituted under the Ordinance is a Court inferior to the High Court.
Reliance in this behalf is placed on Abdul Hafeez v. The State (1).
' The last point urged by the learned counsel for the State that the prohibition to allow bail under section 5(6) of the Ordinance is absolute, in our view, is also without any substance. A perusal of section 5(6) of the Ordinance would indicate that the Court will not release any accused on
(1) PLD 1981 SC 352 bail if there appear reasonable grounds for believing that he has been guilty of a scheduled offence. It is further provided in this subsection that the accused shall not be released on bail unless the prosecution has been given notice to 'now cause why he should not be so released.
Subsection (7) lays down the amount of bail bonds after a Court decides to release an accused person on bail. The words "if there appears reasonable grounds for believing that the accused has been guilty" of a scheduled offence are not new to Legislature of this country. These words also appear in subsection (1) of section 497, Cr. P. C. Exactly identical provisions are found in subsection
(6) of section 5 of Act No, XV of 1975. The words "reasonable grounds to believe" do not place an absolute bar on a Court to allow bad to an accused person. These words were considered in a large number of cases by the Hon'ble Judges of the Supreme Court. In the case of Ch. Zahur Idahi v The State (1), it was held by the Hon'ble Judges while dealing with the bail application under section 497, Cr. P. C. That "section 497 provides that a person shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or life imprisonment. It does not mean that the Court has first to convict and then to refuse bail. In either case, the Court has to take a prima fade view of the guilt or innocence of the accused".
In the case of Nadaro v. Jamait Khan and another (2), it was held by the Hon'ble Judges of the Supreme Court that the Court has to see whether reasonable grounds appear that accused has been guilty of relevant offence, bail cannot be allowed but the belief depends on the facts of each and every case. Thus, the very use of the words "reasonable grounds to believe", would not place an absolute bar on a Court to allow bail to an accused who is charged with a scheduled offence under this Ordinance.
' In another case Fazlul Qader Choudhury v. Crown (3), it was held "I think it is not enough to show that there is reason to suspect that the articles found have been stolen or fraudulently obtained.
Something more is required and that something is `reason to believe' belier being a conviction of the mind arising not from the actual perception of knowledge but by way of inference of evidence received or information derived from others. It falls short of al `absolute' certainty because the accused, in accounting for his possession, may be able to show that the grounds upon which it is based are unsubstantial." In this case, the question requiring consideration was as to whether there were reasonable grounds to believe that the petitioner was in possession of a stolen property.
' In the case of Nisar Ahmad v. The State (4), though the leave in petition for bail was refused but their Lordships observed that "in order to ascertain whether reasonable grounds exist or do not exist, the Courts do not have to probe into the merits of the case. They have only to look at the material placed before them by the prosecution, to see whether some tangible evidence is available against the accused, which, if left, unrebutted may lead to the inference of guilt.
Reasonable grounds are not to be with mere allegations or suspicions, nor with tested and proved evidence, which the law requires for a person's conviction for an offence".
10. In view of the above, we are of the view that section 5(6) of the Ordinance does not place an absolute bar against allowing bail to an I accused charged with a scheduled offence under the Ordinance. It is now a
(1) PLD 1977 SC 273 (2) PLD 1968 SC 310
(3) P D 1952 FC 19 (4) PLD 1971 SC 174 well-settled law that bail is a rule and is not to be withheld by way o punishment. It will be noted that section 5(6) of the Ordinance provides for allowing bail to an accused by a Special Court. This is an enabling section. This section or any other provision of the Ordinance does not indicate that the powers of a Court to grant bail to an accused under section 497, of the Code have been taken away. A Special Court can allow bail to an accused charged with a seheduled offence even if there are reasonable grounds to believe that he is guilty of the charged offence, inter alia, on grounds of old age, sickness or infirmity, delay in completion of the trial, if it is found to b a case of further inquiry, if there is no likelihood of tampering with the evidence by the accused or that the continued detention of the accused may hamper his defence. Thus, the conclusion of the learned Judge presiding the Special Court and the arguments of the learned counsel for the State that section 5(6) of the Ordinance imposes absolute bar on grant of bail cannot accepted. A perusal of the relevant provisions would indicate that the Ordinance envisages the allowing of bail to an accused during the trial after giving notice to the State. Subsection (7) of section 5 provides for the amount of bail bonds and sureties, in case the accused is allowed bail. These provisions are indicative of the fact that section 5(6) is an enabling section placing no bar on the powers of Court to allow bail under section 497, Cr. P. C.
11. Coming to the facts of the present case, we find that the petitioner was arrested in November, 1982. He was on bail during the trial of the case. The learned Special Judge Central recorded the statements of six material witnesses out of total number of ten prosecution witnesses during the proceedings held by him. According to the Ordinance, the Special Court is not bound to re-call those witnesses. The petitioner did not, at any stage, misuse the concession of bail allowed to him.
The facts of the case indicate that there is no evidence that he brought the amount of Rs, 25,200 to his personal use after withdrawing the same from any account of any person. The cheque, dated 2-9-1982 was deposited in the account of Muhammad Pervaiz. This mistake was rectified before the registration of the case. Mst. Naveeda Rani who was examined as P. W. 1 during the trial, did not support the prosecution case. In this view of the matter, we consider that the case against Muhammad Yaqoob Ali petitioner requires further enquiry entitling him to bail till the conclusion of the, trial. This petition is, therefore, accepted and the petitioner is admitted to bail as already directed in the short order.