Nazar Karim, Abbas Raza Khan, Muhammad Asghar and Muhammad Siddique were tried by the Special Court (Offence in Banks) Lahore, under sections 409/34 and 467, P.P.C.., read with section 5(2) of Prevention of Corruption Act (II) of 1947, Learned Judge of the Special Court by judgment, dated 29-10-1985 acquitted Muhammad Asghar and Muhammad Siddique, Nazar Karim and Abbas Raza Khan were convicted under section 409/34, P.P.C. Read with section 6(2) of offences in Respect of Banks (Special Courts) Ordinance (No.IX) of 1984 (hereinafter to be referred to as the Ordinance) and under section 5 of Act II of 1947. They were sentenced to 8 years' R.I. Each and a fine of Rs.90,000 each under the former offence. In default of payment of fine each of them was to undergo further 2 years' R.I. For the latter offence, both were sentenced to 5 years' R.I. Each and fine of Rs.72,000 each or in default of payment to fine to undergo further 1 year R.I. Each. Nazar Karim was also convicted under section 457-A, P.P.C. Read with section 6(2) of the Ordinance, and sentenced to 6 years' R.I. And fine of Rs.80,000. In default of payment of fine, he was to suffer further 1 year R. I.
2. Both the convicts have filed separate appeals in this Court. Both of them pending the appeals have applied for suspension of their sentence. Notice has been issued in both the applications.
3. On the last dates of hearing, learned counsel appearing on behalf of the State objected to the jurisdiction of this Court and argued that this Court had no jurisdiction to suspend the sentence and release the petitioners on bail. In support of this, he relied on section 10 of the Ordinance.
4. Both the petitioners are represented by different counsel. They were heard on the last dates of hearing and we have also heard them today.
5. Mr. Khalid Mahmood, counsel for Nazar Karim relied on two decisions of the Supreme Court of Pakistan in Muhammad Aslam v. State 1985 P SC 1186 and Muhammad Ramzan etc. v. State 1985 PSC 1187 in which leave to appeal has been granted to consider the true interpretation of section 10 of the Ordinance. Learned counsel submitted that in the two decisions referred to above the petitioners before the Supreme Court were allowed interim bail.
6. While dealing with the factual position, it was argued that the allegation against all the accused, including the two acquitted, was that they misappropriated a sum of Rs.35,213.
7. The learned counsel contended that without going into the question of appreciation of evidence there were good grounds to suspend the sentence of the petitioner because of lack of proper and legal evidence to connect the petitioner with the allegations levelled against him.
8. It was further submitted that the onus was on the prosecution to prove its case and the conviction could not be recorded merely on assumptions.
9. We have also heard the learned counsel for Abbas Raza Khan, petitioner in the other case. He adopted the arguments of Ch. Khalid Mahmood.
10. Nobody appeared on behalf of the State, although on the last dates of hearing counsel for the State was very anxious that the two applications should be dismissed on the question of jurisdiction.
11. The question of interpretation of section 10 of the Ordinance calls for an authoritative pronouncement, especially in view of the fart that even the Supreme Court of Pakistan has granted leave to appeal to examine this aspect. Therefore, we do not think that the two petitions are to be thrown out merely on the question of lack of jurisdiction.
12. We have also examined the factual aspect of this case and we think that the contentions raised by the learned counsel for the petitioners are not devoid of force.
13. Notice be issued to the Deputy Attorney-General.
14. The Supreme Court of Pakistan while granting leave to appeal in the above cited cases granted interim bail to the petitioners in those cases. We admit the petitioners in these two cases to interim bail. They should be released on furnishing bail bonds in the sum of Rs.70,000 each with one surety each, in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court.
15. Copy Dasti on payment of usual charges.
16. After the order was dictated and announced in open Court and we took up the next case (Criminal Appeal No. 213 of 1983). Sardar Nazar Hussain Dogar appeared for the State and submitted that he was busy before another Bench and as such could not come in time. He wanted us to mark his presence.