' MIAN NAZIR AKHTAR, J.--- The petitioner has applied for grant of bail in a case registered against him and others vide F.I.R. No, 10, dated 20-9-1995 for offences under section 409/420/468/471/477- A/I09 of the P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 at Police Station F.I.A./S.I.A., Islamabad.
2. The F.I.R. Was recorded on the written complaint submitted by Jamshed Shah, Managing Director of the Bank of Punjab, Lahore. It contains 18 allegations out of which allegation No,9 directly relates to the petitioner. It reads as under:-- "Furniture/fixtures amounting to Rs,0.1 million each were provided under the orders of Mr. Tajjammal Hussain to Messrs Rashid and Rana Asghar Ali, General Manager without any entitlement. On their retirement, these officers neither surrendered the furniture etc. Nor paid its book value to the Bank of Punjab, thus, causing loss to the Bank."
' Subsequently, during the course of investigation, the petitioner was ' sought to be connected with allegation No,18. It relates to withdrawal of Rs,133,135,223 from the account of Messrs National Industrial Cooperative Finance Corporation maintained at the main branch of the Bank of Punjab at Lahore, in violation of the attachment order issued by the Deputy Registrar Cooperatives, Lahore. Originally, in the F.I.R., the said allegation was leveled directly against Mr. Tajjammal Hussain, Chairman of the Bank and Awais Zia Butt.
3. The report prepared by the Investigating Officer under section 173, of the CI .P.C. It is mentioned that on 22-8-1991, Ghulam Rasool Bhatti, Inspector, Cooperatives, Lahore went to the Bank at about 10-00 a.m. With an attachment order issued by the Deputy Registrar, Cooperatives, Lahore. First of all, he met Arshad Khan, Chief Manager, who sent him to the petitioner and he sent him to the Office of the Chairman. The Chairman called the petitioner and told hit is to receive the copy of the order, obtain legal advice from the counsel and make the Inspector wait in a room. It is alleged that the Bank account was not frozen by Tajammal Hussain, Exh.M.D., and the petitioner with mala fide intentions. The Inspector waited till 4-30 p.m. And then he delivered the order to Ayyaz Rashid, Officer in the Main Branch and obtained the receipt from him. Prior to that, at about 12-00 p.m. Ch. Abdul Majeed, Chief Executive of the N.I.F.C. Reached the office of the Chairman and obtained a cheque book bearing Nos.248001- 248100 through Ayyaz Rashid, Manager of the Main Branch. Ch. Abdul Majeed got a sum of Rs,13,31,35,223 transferred to different accounts. On the same day, P.L.S. Account No,1340 was opened in the name of Mr. Awais Zia Butt and a sum of Rs,10,39,13,000 was transferred in the said account through 25 cheques. The said Mr. Awais Zia Butt also got a cheque of Rs,20,00,000 en cashed on 22-8-1991. It is alleged that the above transactions were illegally made after receipt of order for freezing the accounts.
4. The petitioner was arrested on 8-1-1996 after dismissal of his pre-arrest bail by the learned Special Court (Offences in Banks), Rawalpindi. His post-arrest bail petition was also dismissed by the Special Court vide order, dated 121-1996. Hence this petition.
5. The petitioner's learned counsel urged that furnishing grant of Rs,1,00,000 was provided to all the Chief Managers which was to be written off after 3 years; that the Bank never demanded the said amount back from the petitioner and in case it was now demanded, the petitioner would readily return the same to the Bank; that it was the duty of the Chairman or the concerned Branch Manager to have complied with the order regarding attachment of the accounts; that the petitioner did not figure in the matter as he was working in the Head Office as General Manager Accounts; that initially, the Branch Manager was supposed to comply with the order and subsequently when the matter was brought to the notice of Tajjammal Hussain, the Chief Executive of the Bank, he was authorized to order that the accounts be frozen; that the petitioner had merely sent the Inspector Cooperatives to the Office of the Chairman who later called him and told him to take legal advice and make the Inspector wait in a room; that the subsequent orders, dated 12-9- 1991 and 14-9-1991 issued by the Government of the Punjab, Cooperative Department allowing the Bank to release the accounts/Bank transactions made on 22-8-1991 amount to validation of the acts done on 22-8-1991; that violation of the order issued by the Deputy Registrar, Cooperatives at the most amounted to an offence under section 44-E of the Cooperative Act, 1925 which was not a scheduled offence; that the petitioner had no direct dominion over property and never committed breach of trust, cheating or forgery to attract penal provisions under sections 409, 468, 471 and 477-A of the P.P.C. And that the petitioner is weak and infirm person aged about 69 years, is suffering from heart ailment and piles and his .Ailments cannot be properly treated in jail. On the other hand, learned Special Public Prosecutor urged that by virtue of the mandatory provisions of section 5(6) of the Ordinance, the petitioner cannot be released on bail as there appear reasonable grounds for believing that he is guilty of the scheduled offences; that there is sufficient material on the record to show that the petitioner was also aware of the fact that the Bank accounts were to be frozen under the orders of the Deputy Registrar, Cooperatives but he did not comply with the same; that the warrants issued by the Deputy Registrar were addressed to the Head Office of the Bank and the petitioner was also working as General Manager, Accounts in the Bank; that the public at large has suffered due to the withdrawals made from the account of the N.I.F.C. In the presence of the order issued by the Deputy Registrar, Cooperative freezing the Bank account; that the petitioner cannot be released on bail on medical grounds. The learned counsel for the complainant urged that the petitioner was liable like his co-accused, that he had written letter, dated 28-8-1991 which clearly showed that he was aware of the order for freezing the Bank account but did not comply with the same and that he did not deserve bail on medical grounds. In reply, learned counsel for the petitioner explained that the petitioner had written letter, dated 28-8- 1991 after receiving the directions from the Chairman on 24-8-1991. He submits that letter, dated 24-8-1991 from the Secretary, Cooperatives was received by the Chairman of the Bank who directed Mr. Arshad Khan, General Manager and the petitioner to comply with the same strictly.
Thereafter, the petitioner complied with the directions and write letter, dated 28-8-1991 stating therein that the Bank accounts had been frozen.
6. By virtue of the provisions of section 5(6) of the Offences in Respect of Banks (Special Courts)
Ordinance, 1984 bail is not to be granted to an accused if there appear reasonable grounds for believing that he has been guilty of a scheduled offence. The prohibition is applicable to all the scheduled offences irrespective of the fact whether the same are boilable or non-boilable, or fall within the prohibition of section 497 of the Cr.P.C. Or not and whether bail is claimed under the first or third provisos to section 497 of the Cr.P.C. However, the provisions embodied in section 5(6) of the Ordinance do not constitute a complete Code for grant of bail as held in the case of Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCM R 599. It was clarified in the said precedent that all provisions contained in the Cr.P.C. Relating to grant of bail shall not be excluded. The relevant part contained in para. 18 of the judgment is reproduced below:-- "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 (1) 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."
' It was further held that the provisions of first and third provisos to subsection (1) of section 497 of the Cr.P.C. Which create exceptions to the rule contained in that subsection cannot be read into subsection (6) of section 5 of the Ordinance. It was concluded: "The provisions of first proviso to subsection (1) of section 497 of the Code would therefore, be deemed to be clearly not available to the Special Court or the High Court when dealing with the bail of a person accused of a scheduled offence under the Ordinance". Hence it is not possible to allow bail to accused persons merely on the grounds of womanhood, tender or old age, sickness or infirmity. The judgment in Khalid Farooq's case was referred to in the recent judgment in the case of Chaudhry Shujaat Hussain v.
The State 1995 SCM R 1249 and it was held that the difference appearing in section 5(6) of the Ordinance was the fetter on the Special Court's discretion to first find as a fact that there appeared no reasonable ground for believing that the accused was guilty of a scheduled offence even where the punishment was not severe, such as death, imprisonment for life or imprisonment for 10 years, leaving the conditions contained in second proviso to subsection (1) of section 497 of the Cr.P.C.
Intact. It was further held that the Ordinance did not completely oust the applicability of section 497 of the Code in respect of bails. The relevant part reads as under:-- "Whilst the provisions of the first and third provisos to subsection (1) of section 497 of the Code may be treated as not available to the Special Court or the High Court, such a situation would not apply to subsections (2) to (5) of section 497 of the Code, as they do not affect the rule stated in subsection (6) of section 5 of the Ordinance. These provisions would not stand excluded whether expressly or by necessary intendment or implication. In the final analysis, it is not possible to subscribe to the view that section 5(6) of the Ordinance constitutes a complete Code for the grant of bail to persons accused of offences mentioned in the Schedule to the exclusion of all provisions in the Code relating to the same subject."
' Hence we will proceed to consider the petitioner's claim for bail in the light of the provisions of section 5(6) of the Ordinance read with subsection (2) of section 497 of the Cr.P.C.
7. After carefully perusing the material on the record, we find that in the elaborate F.I.R. The only direct charge against the petitioner pertained to the furnishing grant of Rs,1 lac (embodied in allegation No,9 reproduced in para. 2 above). The amount of Rs,0.1 million was provided to the General Managers for renovation and refurnishing of their residences. The petitioner's learned counsel has placed on record letter, dated 7-12-1992 (Annexure "E") containing the decision of the Bank to provide furnishing grant of Rs,1,00,000 to the General ManageRs, The said amount was to be debited to deferred cost account and was to be written off in three years' time. It cannot be claimed that the said amount was provided to the petitioner without any entitlement. After the expiry of 3 years, the said amount stands written off. Even otherwise, the Bank never demanded the said amount back from the petitioner. The petitioner's learned counsel has candidly stated that if the amount is demanded back even at this stage the petitioner would have no objection to return the same. Prima facie, no reasonable grounds exist to show that the petitioner is guilty of any penal offence in respect of the above-referred furnishing grant of Rs,1,00,000.
8. As regards the petitioner's liability qua the transactions made on 22-8-1991, we find that at this stage there is no reliable material to connect the petitioner with the said transactions. The material collected by the Investigating Officer shows that the cheque book was issued to Ch. Abdul Majeed accused in the office of Tajammal Hussain through Ayyaz Rashid, Manager, Main Branch of the Bank. The petitioner did not figure in the matter. The petitioner was also not concerned with the transfer of cash in different accounts through various cheques issued by Ch. Abdul Majeed.
Similarly, in the matter of withdrawal of Rs,20 lacs on the basis of cheque issued to Awais Zia Butt, the petitioner was not concerned. Hence, prima facie he could not be saddled with penal liability in the matter. Surprisingly Arshad Khan, Chief Manager whose role was somewhat similar to that of the petitioner and Ayyaz Rashid, Manager Main Branch who was directly connected with the issuance of cheque book to Ch. Abdul Majeed and the subsequent hank transactions made on 22- 8-1991, were not arrayed as accused in the case. Instead, they have been examined as prosecution witnesses. This act of pick and choose on the part of the prosecution smacks of mala fides. May be, the petitioner had refused to become a witness and was implicated as an accused. Anyhow, without going into deeper merits of the case, we may observe that, prima facie, the petitioner is not connected with the Bank transactions made on 22-8-1991 rtlating to an amount of Rs,13,31,35,223.
The charge pertaining to the said amount concerns Tajammal Hussain, Ch. Abdul Majeed, Awais Zia Butt accused and Ayyaz Rashid P.W. Apart from the fact that the petitioner had sent the Inspector Cooperatives to the office of .The Chairman of the Bank on 22-8-1991 and subsequently made him wait in a room, there is no other material to show that the petitioner had abetted his co- accused in respect of the disputed Bank transactions made on 22-8-1991. Apparently, the other acts of issuance of cheque book to Ch. Abdul Majeed, issuance of various cheques by him, transfer of Bank accounts and withdrawal of an amount of Rs,20 lacs were done without the petitioner's knowledge who remained present in his office.
9. The warrant for attachment issued by the Deputy Registrar Cooperatives was addressed to Ghulam Rasool Bhatti, Inspector Cooperatives, Manawan, Lahore. Its operative part reads as under:-- "These are to command you to please attach the entire amount of the National Industrial Cooperative Finance Corporation Ltd., Central Office, Lahore lying in Sundry Account with the Bank of Punjab, Head Office, Lahore and keep the same under safe and secure custody until the further order of this Court and you are further commanded to return this warrant with an endorsement certifying the date on which and the manner in which it has been executed or the reasons why it has not been executed on or before 31-8-1991."
' The Inspector was under a legal obligation to take requisite steps to attach the amount of N.I.F.C.
Lying in its account at the Bank of Punjab, Head Office, Lahore and to keep the same under safe and secure custody. After doing the needful, he had to return the warrant with an endorsement certifying the date on which and the manner in which it had been executed or had to give reasons why it could not be executed. No- such certificate of the Inspector exists on the record, at least, none has been brought to our notice. It seems surprising that after reaching the Bank and meeting the Chief Executive of the Bank, he kept sitting in a room like a guest or went on moving from one room to another in the Bank from 10-00 a.m. To 4-30 p.m. (as stated by him in his statement under section 161 of the Cr.P.C.). He did not make any serious attempt to attach the amount of the N.I.F.C.
Or take the account books in his possession. Anyhow, after delivering the attachment order to Ayyaz Rashid, he returned and might have reported to the concerned authority his failure to execute the warrant of attachment. Thereafter, the Secretary, Cooperatives directly addressed letter, dated 24-8-1991 to Tajatnmal Hussain, Chairman of the Bank advising him to freeze the amounts credited by virtue of the cheques issued by Messrs National Industrial Cooperatives Finance Corporation. After receipt of this letter, the Chairman called Mr. Arshad, Chief Manager and the petitioner and directed them to comply with the order strictly. Thereafter the petitioner wrote letter, dated 28-8-1991 to the Secretary, Cooperatives, Government of the Punjab, inter alia, stating therein that the account of the Cooperative Society stood frozen and that no amount was being allowed to be withdrawn. As regards the verbal direction for reversal of entries pertaining to transfer of accounts, the petitioner in his reply referred to the legal advice and solicited clear orders to the Bank for reversing the same. The reply dated 8-9-1991 from the Deputy Secretary, Cooperatives, Lahore was as under:-- "The difficulties in reversing the entries as pointed out by your legal advisor have been noted by us.
We, however, feel that we have nothing further to advise in the matter and the Bank only to take such action as it deems fit in the light of its charter and the legal advice referred to above."
' Again, on 14-9-1991 the Registrar, Cooperatives wrote another letter allowing release of amounts pertaining to the bank transactions made on 22-8-1991, though the same were allegedly made in violation of the warrant of attachment issued by the Deputy Registrar, Cooperatives. The question whether the said transactions were made before or after the receipt of the order of attachment is also a bone of contention between the Bank and the Government. It can be properly determined after recording evidence at the trial. Even if it is presumed that the transactions were made after the receipt of warrant of attachment, prima facie the petitioner cannot be saddled with penal liability for more than one reason, as given below:-- First, the matter had been brought to the notice of the Chief Executive of the Bank and the petitioner could not unilaterally pass an order to freeze the Bank accounts.
Second, the prosecution has not brought anything on the record to show that it was the legal duty or obligation of the petitioner to pass an order for freezing the bank accounts.
Third, as soon as the Chairman, directed the petitioner to comply with the order for freezing the bank accounts, he did the needful.
Fourth, the petitioner was not concerned in the matter of issuance of a cheque book to Ch. Abdul Majeed on 22-8-1991 and making of entries for transfer of accounts.
Fifth, in the matter of opening of Bank account bearing PLS No,1340 in the name of Awais Zia Butt and withdrawal of an amount of Rs,20 lacs from the same the petitioner was not concerned.
Sixth, he is not signatory to any forged cheque or document.
Seventh, no financial loss was caused to the Bank as a result of any act of omission or commission on the part of the petitioner.
Eigth, the Secretary, Cooperatives subsequently permitted the release of amounts in pursuance of the bank transactions made on 22-8-1991.
' Hence we find that the matter may require further probe and inquiry qua the petitioner's guilt but at this stage there are no reasonable grounds for believing that he has committed the alleged offences.
10. For the foregoing discussion, we are inclined to accept this petition and allow bail to the petitioner during the pendency of the trial. As regards the amount of the bail bond, subsection (7) of section 5 of the Ordinance enjoins that the amount of bail shall be fixed having regard to the gravity of the charge against an accused person and where the charge specifies any amount in respect of which the offence is alleged to have been committed by him, shall not be less than twice the said amount. The word "charge" has not been defined in the Ordinance. However, in the context of the provisions of subsection (7) of section 5 of the Ordinance it can be construed to mean an accusation of offence levelled by the complainant in the F.I.R. Or prima facie made out against an accused from the material collected by the Investigating Agency. The word "charge" has direct nexus with a penal offence and cannot be equated with the bald opinion of the Investigating Officer-contained in his report under section 173 of the Cr.P.C. The only direct charge made against the petitioner is embodied in allegation No,9 made by the complainant regarding furnishing grant of Rs,0.1 million. The other charge embodied in allegation No,18 relates to Tajammal Hussain, Ch. Abdul Majeed, Awais Zia Butt accused and Ayyaz. Rashid P.W. As held above, at this stage there is no cogent material to connect the petitioner with charge No,18. Therefore, we accept this petition and allow bail to the petitioner subject to his furnishing bail bonds in the sum of Rs,2,00,000 (Rupees two lacs only) with two sureties each in the like amount to the satisfaction of the trial Court/Special Court (Offences in Banks), Rawalpindi.
11. We may clarify at the end that the observations made in the order are purely of tentative nature and would not stand in the way of the trial Court in coming to its own independent conclusions in the light of evidence adduced by the parties.