' By this common order I propose to dispose of all the four bail applications made in Cr. Original Misc. Cases Nos.27 of 1987, 39 of 1988, 69 of 1988 and 94 of 1988.
2. On 4-11-1987, a complaint for the offence under section 43-A, read with section 83(1-C) of the Banking Companies Ordinance, 1962, was filed against accused Abdul Samad Dadabhoy and five others which was brought on regular file on 12-11-1987 (Cr. Original Misc. Case No,27 of 1987).
Accused Abdul Samad Dadabhoy was served with the summons of this Court and the order sheet dated 29-11-1987 shows that he was produced before the Court from Central Prison Karachi where he was confined in some other case. A direction was given to Superintendent Central Prison, Karachi to produce him before this Court on 17-12-1987. The order sheet dated 17-12-1987, however, shows that the absence of accused Abdul Samad Dadabhoy was condoned due to his illness. He, however, avoided to appear before the Court on one pretext or the other, although during this period number of applications including an application under section 265-K, Cr.P.C. Were moved on his behalf. On 7-5-1988, accused Abdul Samad Dadabhoy was allowed interim bail in the sum of Rs,25,000 with P.R. In the like amount. He furnished requisite surety on 8-5-1988, and thereafter absconded. On 10-11-1988, proclamation under section 87, Cr.P.C. Was issued against this accused.
On 26-9-1989 accused Abdul Samad Dadabhoy was produced by M.A. Tatari, Inspector F.I.A. Before this Court and since he was a proclaimed offender he was remanded to custody.
3. On 15-3-1988, a complaint for the offence under section 27-A read with section 83(1-D) of the Banking Companies Ordinance, 1962, was filed against accused Abdul Samad Dadabhoy and three others which was brought on regular file on 24-3-1988 (Cr. Original Misc. Case No,39 of 1988).
Repeated efforts were made to secure the attendance of accused, but without success. On 13-12- 1988, Muzaffar Khan Niazi, S.1., F.I.A., Karachi, who is process server was examined and he testified that there was no immediate prospect of arrest of accused Abdul Samad Dadabhoy. A proclamation under section 87, Cr.P.C. Was accordingly issued against him and on 12-2-1989, the case was kept on dormant file.
4. On 7-7-1988 a complaint for the offence under section 43-A read with section 83(1-D) of the Banking Companies Ordinance, 1962, was filed against accused Abdul Samad Dadabhoy and two others, which was brought on regular file on 14-7-1988 (Cr. Original Misc. No,69 of 1988). Thereafter, repeated efforts were made to procure the attendance of accused, but without any result. On 27- 10-1988, a proclamation under section 87, Cr.P.C. Was issued against accused Abdul Samad Dadabhoy and on 26-2-1989 the case was kept on dormant file.
5. On 8-8-1988, a complaint for the offence under section 27-A, read with section 83 (1-D) of the Banking Companies Ordinance, 1962, was filed against accused Abdul Samad Dadabhoy and two others, which was brought on regular file on 21-8-1988. (Cr. Original Misc. Case No, 94 of 1988). The presence of accused could not be secured. On 29-1-1989, the statement of Muzaffar Khan Niazi, Sub-Inspector, F.I.A. Was recorded who testified that accused Abdul Samad Dadabhoy was absconding. Consequently a proclamation under section 87, Cr.P.C. Was issued against him. On 30-8-1989, the case was kept on dormant file.
6. The offence under section 27-A read with section 83(1-D) of the Banking Companies Ordinance, 1962 (Cr. Original Misc. No, 39 of 1988, and Cr. Original Misc. No,94 of 1988) was punishable with simple imprisonment for a term which may extend to six months, or with fine which may extend to one hundred thousand rupees, or with both. According to Schedule II to the Code of Criminal Procedure, 1898, this offence at the time of its commission was bailable. The offence under section 43-A, read with section 83(1-C) which was punishable with imprisonment of either description for a term which may extend to five years and with fine was, however, non-bailable. Schedule II to the Code of Criminal Procedure, 1898, in respect of offences against other laws is self-explanatory.
Subsection (1-D) of section 83 was, however, substituted by the Banking Companies (Amendment)
Ordinance, 1988, in the following words:- "(1-D) if any company, firm or person contravenes the provisions of section 27-A, the chief executive of the company and its directors, every partner of the firm and such person shall be guilty of an offence punishable with imprisonment for either description for a term which may extend to ten years and with fine the amount of which shall not be less than twice the amount of deposits received in contravention of the said section and forfeiture of whole or part of the property of such company, firm or person and the chief executive of the company and its directors, every partner of the firm and person."
7. I have had the benefit of very careful arguments on both the sides. I am also indebted to Mr. K.M.
Nadeem, learned A.A-G, who has very ably assisted me on intricate law points canvassed from both the sides.
8. The record of all the four cases shows that accused Abdul Samad Dadabhoy was a proclaimed offender. A fugitive from law and Court loses some of the normal rights granted by the procedural and substantive law. The cases reported as Awal Gul v. Zawar Khan and others (PLD 1985 SC 402), and Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182) are guiding authorities on this point.
In the former citation it was observed:- "It is now well established law that a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. It is also a well-established proposition that unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case the principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct). He cannot then seek a reward for such a conduct (in becoming fugitive from law)."
9. In Muhammad Sadiq v. Sadiq and others, reported in PLD 1985 SC 182, their Lordships of the Supreme Court again observed:- "The effect of ascendance, as explained by this Court in its two recent judgments, is that the person becoming a fugitive from law loses some of the normal rights granted to accused persons by the procedural as also substantive law and disentitles himself to the concession of bail notwithstanding the merits of his case, unless he can satisfactorily explain the period of his ascendance."
10. It is contended on behalf of accused Abdul Samad Dadabhoy that he was prevented to appear before the Court on account of illness and fear of death. Both these grounds are feeble and faint, thus lacked the vigour as well. There is nothing on record to prove that the illness of accused was so serious as to prevent him from appearing before the Court even once, although he knew well that he was wanted by this Court in a number of criminal cases. His behavior has been contumacious and contemptuous to this. Court.
11. The ground of fear of death is also untenable and too wide to be accepted without positive and substantial evidence to this effect. Rather, the custody of the accused with police or in jail would be more protective of his life.
12. The accused claims to have surrendered before the F.I.A. On 16-3-1989. This statement is belied by Mr. Muhammad Usman Pirzada, Advocate who appeared on behalf of F.IA. And made a statement in clear terms that accused Abdul Samad Dadabhoy was not in "legal custody" of F.IA. At any rate there is no explanation about the ascendance of accused during the year 1988, although he was declared as a proclaimed offender.
13. Accused Abdul Samad Dadabhoy who was granted bail in Cr. Original Misc. Case No, 27 of 1987, abused the concession extended to him. He did not attend the Court even once after being released on bail and absconded till he was produced before this Court by MA. Tatari, Inspector, F.IA.
And was remanded to custody. The possibility that he may again abscond, if released on bail, therefore, cannot be ruled out. For all these reasons, I find no merit in bail applications made in Cr.
Orig. Misc. Appin. No,27 of 1987, and in Cr. Org. Misc. Appin. No,69 of 1988, and dismiss the same.
14. Admittedly the offence under section 27-A, read with section 83 (1-D) of the Banking Companies Ordinance, 1962, when alleged to have been committed by accused Abdul Samad Dadabhoy was bailable. Mr. Muhammad Shibli, learned counsel for complainant has, however, contended that bail even in bailable cases may be refusd in a case of this nature. Reliance is placed upon the cases reported as. Madhukar Purshottam Mandkar and another v. Talab Haji Hussain and others reported in(AIR 1958 Bom. 406), and Talab 1-1aji Hussain v. Madhukar Purshottam Mandkar and another reported in (AIR 1958 SC 376), with a view to show that the High Court possesses an inherent power" to cancel the bail granted to accused in a bailable case in suitable cases. While examining the point in issue a Division Bench of Bombay High Court observed as follows:- "Now, let us consider what the situation would be if we were to accept Mr. Somjee's argument. The result would be most extraordinary. It is not disputed that if an accused person who is charged with a non-bailable offence threatens witnesses or to impede the course of justice or make a fair trial difficult if not impossible, the High Court or the Court of Session even could under subsection (5) of S.497 cancel the bail and cause him to be arrested and committed to custody. But it is seriously argued that a person accused of a bailable offence has complete liberty to do what he likes. He can threaten prosecution witnesses, he can suborn them, he can interfere with the course of justice, he can make it impossible for honest witnesses to come forward, and the Court must look on completely helpless without being in a position to do anything. Before one accepts such a proposition, one must hesitate a good deal and there must be something in the law so clear and so categorist that the Court is compelled to say that however serious the situation, however serious the offence, however gross the conduct of the person released on bail, the Court must continue him on bail and has no power to re-arrest him and commit him to custody. Undoubtedly, the right to be released on bail is a very important right of the citizen. It is an extremely important safeguard which the Code of Criminal Procedure confers upon the subject, and this Court would be most reluctant in any way to impair that right or that safeguard. The legislature has clearly indicated that in the case of bailable offences that right must be conceded to the accused person and he is entitled as a matter of right to be released on bail. It is therefore obvious that the High Court or any Court does not possess the ordinary normal power to cancel bail in a case of a bailable offence as it has in the case of a non-bailable offence. No limitation is placed upon the power of the High Court under subsection (5) of 5.497. Of course it must examine the case carefully and it must come to the conclusion that it is a proper case for the cancellation of the bail. But when we come to a bailable offence the Court must start with the position that the law does not permit it to cancel the bail of an accused person charged with a bailable offence, that the law requires that such an accused person should be at large, should not be confined to custody while he is awaiting his trial.
But if the Court is satisfied that in a particular case the activity of the accused is such as to make a fair and proper trial impossible, that the accused is in a position to interfere and tamper with prosecution witnesses, that he is in a position to threaten the witnesses in a manner which would prevent them from coming forward and giving truthful evidence, then is it suggested that the Court has no inherent jurisdiction to prevent such a situation continuing ? It seems to us that this is exactly the situation which S.561-A was intended to deal with. Having provided in S.496 that a person accused of a bailable offence shall be released on bail, the legislature has not provided for nor has it contemplated a situation which we have just described. That is an obvious lacuna in the Code of Criminal Procedure. Even' so, if there had been any express provision in the Code prohibiting the Court from arresting any person who has been released on bail under S. 496, then however reluctantly the Court would have to carry out the mandate of the Legislature. But although Mr. Somjee is right that there is no provision corresponding to subsection (5) of S.497 or subsection
(2) of S.498, the important fact to remember is that, nor is there any provision in the Code which prohibits the High Court from re-arresting a person who has been released on bail in a case where he is charged with a bailable offence. Therefore, we are of the opinion that the inherent powers of the High Court under S.561-A are not in any way affected by the provisions of S.496. We wish to make it clear that these powers of the High Court are extremely restricted and circumscribed powers, They are not to be availed of as arising from ordinary jurisdiction conferred upon the High Court. It is only in extraordinary and exceptional cases where the High Court is fully satisfied that the Court which is trying an accused person charged with a bailable offence will not be in a position to function as a Court, in the sense that it cannot get the proper evidence before it and it cannot come to a proper conclusion whether the offence has been committed that, it would exercise the inherent jurisdiction conferred upon it by S.561-A."
15. The judgment reported in AIR 1958 Bombay 406, was challenged before the Supreme Court and it was maintained by its judgment reported in AIR 1958 Supreme Court 376. While upholding the view taken by Bombay High Court the Supreme Court of India held that under section 561-A, Cr.P.C.
The High Court has inherent power to cancel the bail granted to a person accused of a bailable offence and in a proper case, such power can be exercised in the interest of justice. It was further observed that as a fair trial is the main objective of the criminal procedure any threat to the continuance of a fair trial must be immediately arrested and the smooth progress of a fair trial must be ensured; and this can be done, if necessary, by the exercise of inherent power.
16. Mr. Muhammad Shibli learned counsel for complainant has submitted that accused Abdul Samad Dadabhoy is one of those unscrupulous financial tycoons whose only mission appears to amass wealth, to fill in his coffer, at any cost. According to him the accused appears to have unquenchable thirst for money and for the fulfillment of that object, oblivious of the consequences, developed seemingly innocent but in, reality a mepliistopheleen mechanism, a devilish device, to denude the millions of people of their life long savings, hard earned moneys in the guise of seeking investment against ethereal premises of uncommonly high, higher and still higher returns. In other words the learned counsel for complainant has contended that such a person does not deserve any sympathy. The learned counsel for complainant should have known that our own Supreme Court in the case of Mian Mahmood Ali Qasuri and others v. The State, reported in PLD 1963 SC 478, did not approve the view taken by the Supreme Court of India in the above quoted authority.
At page 485 we find:- "With the utmost respect, it seems to us that this is an erroneous view in the face of the unqualified language used in section 496 of the Code. The policy of the Code seems to be that in the case of bailable offences the person accused has the indefeasible right to grant of bail subject of course to the satisfactory sureties being offered, if sureties are considered necessary. There is admittedly no provision in the Code permitting cancellation of such a bail. Bail is not a mere privilege in such cases but a right of the subject whose liberty is regarded as a precious asset to be preserved undiminished. If of course the person enlarged on bail suborns witnesses there may be other remedies at law open against him, e.g. Contempt proceedings or conceivably even proceedings to bind him over to keep the peace or be of good behavior in certain circumstances. But to hold that on such grounds the bail granted under section 4% of the Code can be cancelled, amounts to saying that the High Court possesses inherent power to override the express provisions of the Code. Such a conclusion would be contrary to principle and finds no support from any other authority."
17. It, therefore, follows that an accused involved in a boilable offence is entitled to the grant of bail as of right with no conditions attached to it.
18. The provisions regarding bail are essentially part of procedure and as such it must be regulated by the law under which a particular trial is held. The Offence under section read with section 83 (1- D) of the Banking Companies Ordinance, 1962, which was initially punishable with six months imprisonment, has been made punishable with imprisonment up to ten years by the Banking Companies (Amendment)"Ordinance, 1988. In view of the embargo contained in Article 12 of the Constitution of Islamic Republic of Pakistan, 1973, the enhanced punishment cannot be awarded in respect of offence committed before the amendment, but there is certainly a distinction between "prescription of punishment" and "infliction of punishment." Thus, for the purposes of bail the offence under section 83(1-D) of the Banking Companies Ordinance, 1962, shall be deemed to be non-bailable from the very beginning. Besides an English authority reported as Director of Public Prosecutions v. Lamb (1941 Law Reports King Bench Division 89), this view gets support from the cases reported as MRs, Khalida Choudhary v. Muhammad Khursheed and 6 others (PLD 1987 Lahore 223), and Bashir v. Wazir Ali (1987 SCMR 978). In this view of the matter the offence under section 83 (1-D) of the Banking Companies Ordinance, 1962, falls within the prohibitory clause of section 497, Cr.P.C. Accused Abdul Samad Dadabhoy who was proclaimed offender in all the four cases and fugitive from justice is, therefore, not entitled to the grant of bail in Cr. Orig. Misc. No, 39 of 1988 and Cr. Org. Misc. No, 94 of 1988 also.
19. In the result the bail applications filed in all the above four cases are dismissed.
20. By a short order dated 17-10-1989, I had dismissed the above bail applications. These are reasons for the said orders, Bail .