' This is second application for bail before arrest filed on behalf of present applicant/accused who is allegedly involved in F.I.R. No,10 of 1996 of F.I.A. State Bank Circle, Karachi, arising out of offences- under section 409/ 420/34, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947.
The previous Bail Application No,1499 of 1996 was dismissed in default due to the absence of applicant/accused.
2. Briefly, the facts, alleged in the above F.I.R. Are that on 15-7-1996 one Rashid Qamar Siddiqui lodged complaint with Federal Investigation Agency, State Bank Circle, Karachi (hereinafter referred as F.I.A. S.B.C.) that co-accused Nazim Ali came to the complainant, who is a money changer by profession, and produced Foreign Exchange Bearer Certificates (hereinafter referred as F.E.B.Cs.) worth US $10,000 for encashment. It is alleged in the F.I.R. That since the complainant company was not dealing in the encashment of F.E.B.Cs., therefore, said Nazim Ali was asked to get it encashed from Citi Bank, Karachi. It is further alleged that the said co-accused Nazim Ali was arrested in the Citi Bank, Karachi by the F.I.A. As the said F.E.B.Cs. Were found to be stolen from the locker at United Bank Ltd., Industrial Branch, F.B. Area, Karachi. In view of the fact that the question of jurisdiction of this Court is under challenge, it would be pertinent to reproduce the exact allegations of the complainant as narrated in the F.I.R. .... I confirmed these contents from Citi Bank from where the actual owner namely Iqbal who was present at that time with Citi Bank authorities also confirmed about stolen of two F.E.B.Cs. From his lockers exist at U.B.L. Industrial Branch F.B. Area Karachi. On spot enquiry from Nazim Ali admitted that two F.E.B.Cs. Have been provided by his son-in-law namely Irfan son of Nasir Farooqui, Assistant Manager of U.B.L., Industrial Branch F.B. Area Karachi some time ago for encashment one of which in question has been deposited in Citi Bank while the other has been kept in his own locker of A.B.L. Rashid Minhas Road Branch, GuIshan-e-lqbal Karachi. As F.E.B.Cs. In question are stolen from the Bank locker and reportedly misused with the connivance of Bank Official by said Nazim Ali, hence the matter is reported to you along with person (Nazim Ali) for initiating legal action under the law..."
3. On 25-9-1996, when this bail application came up for Katcha Peshi, following order was passed:- - "From the contents of the F.I.R. I am of the tentative view that the alleged offence is scheduled offence as mentioned in the Ordinance IX of 1984 namely 'Offences in Respect of Banks (Special Courts) Ordinance, 1984' and that a single Judge has no jurisdiction to grant anticipatory bail. I have also asked the learned counsel for the applicant to go through the case of A. Habib Ahmed v.
M.K.G. Scott Christian and 5 others PLD 1992 SC 353 and to satisfy whether the present case falls within the qualification laid down by the Honourable Supreme Court of Pakistan. Be that as it may, since the prosecution has filed interim challan before the Special Judge Central (1) Karachi, I admit the applicant/accused on interim bail upon furnishing one solvent surety of Rs,1,00,000 (rupees one lac only) with P.R. Bond in the like amount to the satisfaction of Nazir of this Court.
' Accused/applicant is admitted to interim bail in the above terms. Issue notice to the Deputy Attorney-General as well as to the Deputy Director, F.I.A. Commercial Bank Circle and State Bank of Pakistan for 30-10-1996 . "
4. I have heard Mr. Izhar Alam Farooqui, Advocate for the accused, Mr. Syed Israr Ali, Assistant Director, Legal, F.I.A. And have also perused police papers. Mr. Farooqui has attempted to argue this pre-arrest bail on merits but he was asked to confine his submissions on the point of jurisdiction.
He was further asked to show whether a single Judge of this Court can grant bail, pre-arrest or after arrest, to an accused person, who is alleged to have committed a scheduled offence as provided in the Ordinance IX of 1984. Reference was made by Mr. Farooqui to the case of Javed Akhtar Junejo v. The State 1996 PCr.LJ 1563 where a bail application pertaining to the case of Special Court (Offences in Banks) was considered and rejected by a single Judge of this Court. I am of the view that this case does not lend any support to the accused as in the reported case neither any question to the jurisdiction was raised nor subsection (2) to section 10 of the Offences in Respect of Banks (Special Court) Ordinance, (IX of 1984) was pointed out to the learned Judge.
According to the said provision of law, the appellate Court of the said Special Court is defined to be a Division Bench of a High Court and, therefore, in my humble view, a single Judge is not competent to hear and decide bail applications since the appellate authority vests in the Division Bench of a High Court. Following is section 10 of the Ordinance IX of 1984:-- "Section 10 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). 11
5. It is needless to add that the Division Bench of High Court being appellate Court is fully competent to grant bail, pre-arrest or after arrest, irrespective of the bar contained in section 10 of the Ordinance IX of 1984. Such bar limits the jurisdiction of a single Judge to exercise powers of an appellate Court. I am fortified in my view by the rule laid down by the Honourable A Supreme Court of Pakistan in the case of The State v. Syed Qaim Ali Shah 1992 SCM R 2192. For further reference see also Muhammad Yaqub Ali v. The State PLD 1985 Lah. 45 and Abdul Majeed v. Judge, Special Court 1985 PCr.LJ 890.
6. It is argued by Mr. Syed Israr Ali that the present case is fully covered by the case of A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353 where a Full Bench of Honorable Supreme Court of Pakistan while interpreting several provisions of the Ordinance XI of 1984 namely: Offences in Respect of Banks (Special Court) Ordinance has held as follows:-- "In the light of what has been stated about the definition, in this case the allegations made against the accused undoubtedly involved the business of the bank more directly than by invoking aid from the expression ' in respect of or 'in connection with'. With respect, the approach of the High Court to find loss, compensation and other similar elements connected with the complainant, accused or the bank, would amount to reading much more in the definition itself than is justified either by the language used therein or even by the intendment underlying the same. The intention being that all conceivable situations, linked with the business of the bank, would make the offences mentioned in the Schedule as scheduled offences. Thus, to take away all such cases from the ordinary Courts, for purpose of their trial before the Special Court (Banks). That being so, there is no alternative but to hold that the offences alleged in this case against the accused were scheduled offences."
' It is further contented by Mr. Izhar Farooqui that no offence specified either in sections 409, 420 and 380, P.P.C. Was made out. He has further stated that in the present case the complainant is neither a bank officer nor its customer and, therefore, the Special Court constituted under the Ordinance IX of 1984 has no jurisdiction in this case He has also contended that neither the Bank nor its customer has suffered any financial loss. I am afraid that these arguments are not tenable.
Mr. Syed Israr Ali has rightly pointed out that the case of A. Habib Ahmed (supra) has answered all the grounds raised by the learned counsel appearing for the applicant/accused. It is settled law that for the purpose of determining the jurisdiction of a trial Court the F.I.R. Is to be looked at. (see Allah Din and 18 others v. The State 1994 SCM R 717 and Azhar Hussain v. Government of Punjab 1993 PCr.LJ 2308).
7. At this stage, it is requested by the Investigating Officer Rafique Mughal, Inspector F.I.A. That he wants time to submit challan before the Special Court (Offences in Banks) Sindh at Karachi. In my view there is no need to grant time or permission to the prosecution for such purpose. It is the duty of the prosecution to submit challan in the Courts having competent jurisdiction. Presently, the charge-sheet/challan has been filed before the Special Judge (Central-I), Karachi. In the circumstances, I am inclined to follow the rule laid down in the case of Bago and 2 others v. The State 1996 PCr.LJ 1818 where a Division Bench of this Court granted bail to three accused on the ground, inter alia, that no challan was filed before the Court of Special Judge (S.T.A.). At present the challan has been submitted before the Court of Special Judge (Central-I) at Karachi and so far the Special Court (Offences in Banks) Sindh, at Karachi has not taken cognizance of the case, therefore, in order to do justice, I confirm the interim to the applicant/accused by this Court but, subject to all just exceptions. I would like to observe that this order of bail would remain operative till, as stated by the F.I.A. Official, challan is filed before the Special Court (Offences in Banks) Sindh, at Karachi whereafter this order will cease to exist.
Pre-arrest .