' This order will dispose of Criminal Miscellaneous No,783/B of 1995 entitled G.M. Khairati v. The State and Criminal Miscellaneous No,248/B of 1995 entitled Irfan Rehman Malik v. The State, as both petitions for the grant of bail after arrest arise out of F.I.R. No,98/94, dated the 26th of December, 1994, registered with Federal Investigation Agency (F.I.A.), Lahore, under sections 161, 162, P.P.C. Read with section 5(2) of the Prevention of Corruption Act of 1947, and also because both petitions have been heard by us together.
2. Mr. G.M. Khairati, Senior Executive Vice-President, Provincial Chief, Punjab, Habib Bank Limited, Lahore, was arrested in Lahore on the 26th of December, 1994, in pursuance of a case registered against him and Irfan Rehman Malik, vide first information report No,98/94, dated the 26th of December, 1994, under sections 161, 162, P.P.C. Read with section 5(2) of the Prevention of Corruption Act of 1947, by the Federal Investigation Agency at Lahore. Co-accused Irfan Rehman Malik who is the petitioner in Criminal Miscellaneous No, 248-B of 1995, and is an Accountant by profession was working for Messrs Yousaf Adil & Co. At Lahore, was also arrested on the same day i,e, the 26th of December, 1994, in pursuance of the same first information report. Both Mr. G.M. Khairati and Mr. Irfan Rehman Malik were given on 14 days physical remand and thereafter they were sent to the judicial lock-up.
3. Complainant Mr. Shahid Nazir is a Member of the National Assembly of Pakistan and through his written complaint addressed to the Director, Federal Investigation Agency, Lahore Zone, Lahore, complained about the "highhandedness and corruption of Mr. G.M. Khairati, the Punjab Provincial Chief of Habib Bank Limited". The complainant goes on to state that Mr. G.M. Khairati is involved in corruption for providing financial accommodation to industrialists. Giving details of the highhandedness and corruption of Mr. G.M. Khairati, complainant Shahid Nazir averred that during discussions held by him with Mr. G.M. Khairati regarding financial assistance to Messrs Khurshid Textile Mills Limited and also regarding disposal of his own units, release of cotton limits, rescheduling of remaining units of Masood Textile Mills, he was told by Mr. G.M. Khairati to initially sort out the matters with Mr. Irfan Rehman Malik, Chartered Accountant (petitioner in Criminal Miscellaneous No,248/B of 1995) and that on meeting the said Mr. Irfan Rehman Malik informed the complainant that Mr. G.M. Khairati was desirous of financial benefit for himself before resolving and deciding the pending proposals.
4. On being duly informed of Mr. G.M. Khairati's desires, complainant spent an evening with Mr. G.M.
Khairati at his guest house on the 13th December, 1994. During this dinner meeting; business was also discussed. For releasing the cotton limits of Khurshid Textile Mills Ltd., Mr. G.M. Khairati demanded 4-5% of the total limit which was Rs,60 millions. On further negotiations, Mr. G.M. Khairati reduced his demand to 3% which amounted to Rs,2.40 million and out of the said amount he demanded 50% in advance and the balance after the release of the said limit.
' Similarly for finalization of the complainant's pending cases, Mr. G.M. Khairati demanded Rs,10,00,000 for the cotton limit already sanctioned to Masood Textile Mills Ltd. And for the other pending cases of the complainant, Mr. G.M. Khairati asked the complainant to buy him a house in the United States of America or provide him Rs,50,00,000 in cash so that he could buy the house himself.
5. To Mr. G.M. Khairati's misfortune, complainant Shahid Nazir had made necessary arrangements to record their discussion in the said dinner meeting.
6. Thus, the case of the prosecution rests upon the Video Cassette wherein the above discussions have been recorded, first information report lodged by Mr. Shahid Nazir and also his statement recorded under section 161, Cr.P.C. During the course of investigation. Mr. Muhammad Farooq, an Accountant of Masood Textile Mills Ltd. Supports the version of the complainant and states that he was informed by Mr. Irfan Reiman Malik that Mr. G.M. Khairati wanted money before giving approval to the pending cases of the complainant. Mr. Fiaz-ul-Hassan, Vice-President of the Circle Office of the Habib Bank Ltd., Lahore, and Secretary of the committee which recommends the grant of loans, states that Mr. G.M. Khairati kept the cases of the complainant pending in order to obtain illegal gratification. The statement of Mr. Muhammad Rasheed Khalidi, Vice-President, Provincial Headquarters, Habib Bank Ltd., Lahore, a member of the committee which recommends the grant of loans has made a similar statement during the course of investigation. Mr. Sarfraz Ahmad, a Secretary of complainant Shahid Nazir supports the version of the complainant. Mr. Rahim Bakhsh, Assistant Director of the Directorate of Intelligence Bureau, Islamabad, alongwith Javaid Iqbal, Inspector, and Muhammad Akhlaq, Translator, of the same Directorate, prepared the video cassette. Khawaja Asam, Director of Khurshid Textile Mills Ltd. Supports the allegations of complainant Shahid Nazir which is to the effect that Mr. G.M. Khairati demanded money from complainant Shahid Nazir. Mr. Zameer Hussain Jafree, Chief Executive, Habib Bank Limited, Faisalabad, arranged the meeting between the complainant Shahid Nazir and Mr. G.M. Khairati. Mr. Noor Muhammad, Area Manager, Habib Bank Ltd., Lahore, and Mr. Habib Mirza, Provincial Chief Executive, Habib Bank Ltd., corroborate the case of the prosecution. Mr. Latif Tahir, Manager, Habib Bank Ltd., Faisalabad, produced the relevant documents during the course of investigation. Rana Ahmad Hussain, Inspector, Federal Investigation Agency, prepared the challan which has been submitted in the Court of learned Judge, Special Court Offences in Banks, Lahore.
7. Learned counsel for the petitioners contended that the maximum sentence for the offences allegedly committed range from 3 years to 7 years and, therefore, the case of the petitioners does not fall within the prohibition contained in subsection (1) of section 497, Cr.P.C. It is, therefore, contended that where the case of an accused person does not fall within the said prohibition, grant of bail is the rule and refusal is the exception. It is further contended that the only allegation against Mr. G.M. Khairati is to the effect that he demanded illegal gratification but no money actually passed hands.
8. Chapter IX of the P.P.C. Deals with offences by, or relating to public servants. Section 161, P.P.C.
Begins by laying down that "whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain". The maximum sentence under section 161, P.P.C. Is 3 years, or fine, or both. Section 162, P.P.C. Also begins by saying 'whoever accepts or obtains, or agrees to accept, or attempts to obtain ....". The maximum sentence under section 162, P.P.C. Is three years, or fine, or both.
' Similarly subsection (2) of section 5 of the Prevention of Corruption Act, 1947 (II of 1947) provides that "any public servant who commits or attempts to commit criminal misconduct shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both".
Admittedly, Mr. G.M. Khairati, a banker by profession, and Provincial Chief, Punjab, Habib Bank Limited, Lahore, at the time of his arrest is a public servant within the meaning of sections 161 and 162, P.P.C. And also within the meaning of subsection (2) of section 5 of the Prevention of Corruption Act, 1947, while Mr. Irfan Rehman Malik, an Accountant by profession and employed by Messrs Yousaf Ali and Company a private firm of Accountants, is 8 not a public servant within the meaning of the aforementioned laws. This is the common position taken by both learned counsel for the petitioners as well as learned counsel for the respondents.
' However, in this context, learned Deputy Attorney-General submits that although Mr. Irfan Rehman Malik is not a public servant but he can be convicted under section 109, P.P.C. Which was added subsequently.
9. Learned counsel for the petitioners contends that notwithstanding the language of section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance of 1984, this Court has the jurisdiction to grant bail to an accused person and places reliance upon the case of Allied Bank of Pakistan Ltd. v. Khalid Farooq reported in 1991 SCM R 599 and the case of State v. Syed Qaim All Shah reported in 1992 SCM R 2192.
' In the case of Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCM R 599 their Lordships were pleased to observe in paragraph 17 at page 619 that "under section 497 of the Code bail can be given in non-bailable cases subject to the discretion of the Court, where the punishment for the offence is not death, imprisonment for life or imprisonment for ten years, but where the punishment for the offence is death, imprisonment for life or imprisonment for ten years, the discretion is not free but fettered with the condition that the Court must find that there appear no reasonable grounds for believing that he is guilty of an offence inviting any of such heavy punishment. In short, the difference appearing in section 5(6) of the Ordinance is the fetter on the Special Court's discretion to first find as a fact that there appear no reasonable grounds for believing that the accused is guilty of a scheduled offence, even where the punishment is not severe, such as death, imprisonment for life or imprisonment for ten years."
' Their Lordships were further pleased to observe in paragraph 19 at page 620 that "section 5(6) of the Ordinance clearly states that an accused shall not be released if there appear reasonable grounds for believing that he has been guilty of a scheduled offence. The provisions of this section have effect, notwithstanding anything contained in the Code".
10. In the case of State v. Syed Qaim Ali Shah 1992 SCM R 2192 which was a case under the Suppression of Terrorist Activities (Special Courts) Act of 1975, their Lordships were pleased to hold in paragraph 12 that "a perusal of the above-quoted subsection (8) of section 5-A indicates that the first part of it has been lifted from second part of subsection (1) of section 497, Cr.P.C. Which provides that "but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years". The only difference seems to be that in the first part of above subsection (8) in place of the words "guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years", the expression "guilty of a scheduled offence" has been employed".
11. It is indeed true that their Lordships of the Supreme Court have laid down that this Court has the jurisdiction to grant bail to an accused person but it is subject to the observations hereinbefore repeated.
' Therefore, the argument that the offences allegedly committed are not punishable with death or imprisonment for life or imprisonment for ten years is of no avail.
12. From the material that has been collected by the prosecution and placed on record, it cannot be said that reasonable grounds to believe that Mr. G.M. Khairati is not guilty of a scheduled offence.
' Resultantly, the bail petition of Mr. G.M. Khairati (Criminal Miscellaneous No,783/B of 1995) is hereby dismissed.
13. The case of Mr. Irfan Rehman Malik is clearly distinguishable. On the prosecution's own showing, the only role assigned to Mr. Irfan Rehman Malik is that he said that Mr. G.M. Khairati wants money.
Nothing more and nothing less.
' Prima fade, the case against Irfan Rehman Malik would not even fall within the ambit of section 109, P.P.C. Because it is not the case of the prosecution that Mr. Irfan Rehm an Malik said that money be given to Mr. G.M. Khairati.
' Therefore, prima fade reasonable grounds to believe that Mr. Irfan Rehman Malik is guilty of a scheduled offence do not seem to exist.
' Resultantly, Mr. Irfan Rehman Malik is granted bail provided he furnishes bail bond in the sum of Rs,10,00,000 (Rupees ten lass only) with one surety in the like amount to the satisfaction of the trial Court.