' The only issue, falling for determination in the Criminal Miscellaneous moved under section 561-A, Cr,P,C, is whether this Court had jurisdiction in cases referred under the provisions of Ehtesab Ordinance No, XX of 1997 (hereinafter stated as 'Ordinance') to admit the applicant-accused to bail subject to deposit of cash security.
2. The facts, briefly stated, giving rise to this application, are: that two cases bearing No,Ehtesab Reference 19 of 1997 and Entimab Reference 21 of 1997 were sent by the Chief Ehtesab Commissioner to this Court against Muhammad Hasham Babar/applicant herein. In both these references the applicant moved Criminal Miscellaneous Nos.25/B of 1997 and 27/B of 1997 for grant of post-arrest bail. Vide order dated 30-4-1997, the applicant was allowed pretrial bail in Ehtesab Reference No,19 of 1997 subject to furnish cash security in the sum of Rs,50,00,000 (rupees fifty lacs) within a period of three weeks. By means of order of even date, he was admitted to post-arrest bail in Ehtesab Reference 21 of 1997 subject to deposit of cash security in sum of Rs,10,00,000 (rupees ten lacs). The form of cash security did not satisfy the applicant and 'so he has chosen to move this Court for variation of aforesaid condition.
3. The learned counsel for the applicant contended that the Court had no authority, whatsoever, under sections 497 & 498, Cr.P.0 read with section 3 of the Ordinance to intsist on cash security.
Reliance was placed on Lakhi Narayan Kundu v. The Crown PLD 1955 Dacca 84, Abdul Ahad v. The State 1970 PCr.LJ 1256, Muhammad Riaz v. The State 1979 PCr.LJ 427, Mst. Sher Bano and another v.
The State PLD 1989 Kar. 602 and Amir Sardar v. The State 1990 PCr.LJ 414. He next submitted that this Court had ample power to review its earlier order and modify them in consonance with above rule.
The learned counsel referred to Mst. Sher Bano and another v. The State PLD 1989 Kar.
602.
4. On the contrary, Mr.Sher Zaman, the learned Special Prosecutor opposed the application. In reply, he argued that the Ordinance was/is special law; that its object was to eradicate corruption/corrupt practices from socioeconomic of society; that under this new dispensation the Court was obliged under section 3(3) of the Ordinance to allow bail only on the deposit of cash security. He referred to sections 5 and 6 of the Ordinance to suggest that this Court was/is empowered to attach the property of the applicant accused before trial.
5. We have heard the learned counsel for the applicant and the learned Special Prosecutor at considerable length and carefully attended to their rival contentions. Conceptually, 'bail' means to procure release of one charged with an offence by insuring his future attendance in Court and compelling him to remain within jurisdiction of Court". See Black's Law Dictionary (5th Edn.) page 127 published by West Publishing Co in 1979. The person who is released on bail is known as 'principle while the person who gives security is known as surety'. The security so furnished may be in the form of a bond or cash. This concept is as old as administration of criminal justice. We find its example in the days of conquest of England by Normans. At that time the community as a whole pledged its property as security for the appearance of accused before the trial Court. Concept of collective security vanished with the march of time and in its place the surety by third person developed. The concept of bail was rocked upon three rules of criminal administration of justice; firstly; that the accused was presumed' to be innocent till he was proved guilty; Secondly; that the accused should have a right to prepare his defence and prove his innocence. Thirdly; that the accused should not be punished before the finding of his conviction was rendered by the Court of competent jurisdiction. The afore noted principles, evolved with the passage of time, were embodied in the Code of Criminal Procedure by the British Rulers when it was enacted in the year 1898. The overwhelming weight of judicial authority in the precedents of pre-partition and post- partition era is that the Court had no authority under sections 497/498 and 513 and 514 of Cr.P.C. To insist upon cash security, when the accused is granted pre-arrest or post-arrest bail. This question came up for consideration before a Division Bench of Dacca High Court (as it was) Lakhi Narayan Kundu v. The Crown PLD 1955 Dacca 84. Delivering the opinion on behalf of the Bench, Acting C.J.
And Ellis J., said: "With regard to the question as to whether a Magistrate is competent to insist on the deposit of cash security instead of requiring the execution of a bond, we agree with the decisions in cases of Rajballam Singh v. King Emperor, Abdul Gani and others v. Emperor 48 Cr.LJ 773 and R.R. Chari v.
Emperor 49 Cr.0 282, that the section contemplates the execution of a bond with sureties and not a cash deposit. A Magistrate, therefore, has no power to require an accused person to deposit a sum of money in Court as surety for his attendance in Court at a given time. There is, however, the provision in section 513 of the Code of Criminal Procedure: ' When any person is required by any Court or Officer to execute a bond, with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court of Officer may fix, in lieu of executing such bond. The provision was enacted in the interests of persons who, because they may be strangers in the locality or for some other reason, are not in a position to arrange for bail or able to offer sureties. In the case of these persons if they offer a cash deposit, the Court is allowed in its discretion to accept that deposit in lieu of a bond; but neither section 499 nor section 513 of the Code contains anything which authorises a Magistrate of his own accord to insist on the deposit of a sum of money as surety in the place of a bond. Such a demand for cash security is illegal.
' Turning then to the two cases now before us, the Rule in Case No,38 of 1952 obtained by the petitioner Lakhi Narayan Kundu must be made absolute and the case sent back against to the Sub-Divisional Magistrate of Rangpur with the direction that he has no power in law to impose a condition on the petitioner that he is to live within the Municipality of Rangpur. With this direction in view, he will consider the matter as to whether the petitioner is to be released on bail or not."
The aforesaid view was followed by the erstwhile West Pakistan High Court in Abdul Ahad v. The State (1970 PCr.LJ 1256), Lahore High Court in Muhammad Riaz v. The State (1979 PCr.0 427) and the High Court of Karachi in Mst. Sher Bano and another v. The State (PLD 149 Kar. 602). From the foregoing it is thus clear that the rule is that the Court while dealing with application under section 497/498, Cr.P.0 has no power to insist upon deposit of cash security in connection with the bail.
6. Foregoing rule, in the context of new dispensation, does not conclude the issue. We are accordingly tempted to examine the various forms of security in bails system of other countries.
We are attracted to examine specially the Illinois Laws of bail. Article 110 of the Code of 1963 is pertinent. It shows that the accused can secure his pretrial release in following manner: "(1) Under 110-2 he may be released on his personal recognizance.
(2) Under 110-7 he may execute a bail bond and deposit with the clerk, cash equal to only 10% of the bail or $ 25, whichever is the greater. When. Bail is made in this way and the condition of the bond have been performed, the clerk returns to the accused 90% of the sum deposited. The remaining 10% (1% of the bail) is retained by the clerk 'as bail bond costs'.
(3) Under 110-8 he may execute a bail bond and secure it by a deposit with the clerk of the full amount of the bail in cash, or in stocks and bonds authorized for trust funds in millions , or by unencumbered non-exempt illionis real worth double the amount of the bail. When bail is made in this way and the conditions of the bond have been performed, the clerk returns the deposit of cash or stocks or bonds, or releases the real estate, as the case may be, without charge of retention of any amount. In each case bail is fixed by a judicial officer. Article 110-5 prescribes factors to be considered in fixing the amount of bail. Under 110-6 either the State or the defendant may apply to the Court for an increase or for a reduction in the amount of bail or for alteration of the bond's conditions.
' The choice between 110-7 and 110-8 is reserved to the accused."
' The aforesaid methodology of cash security was challenged by one Schilb on constitutional grounds, in case Schilb v. Kuebel (Supreme Court of the United States, 1971 404 U.S. 357, 92 S.Ct.479, 30 L.Ed.2d 502). In this case "Jhon Schilb, the Petitioner, was arrested and charged with (a) leaving the scene of an automobile accident, and (b) obstructing traffic. Bail was fixed at $500 on the first charge and at $ 250 on the second charge. In accordance with the Illinois bail statutes of 1963, petitioner deposited $ 75 in cash with the clerk of the Court. This amount was 10 per cent of the aggregate bail. At his trial, Schilb was acquitted of the first charge and convicted of the second.
When he paid his fine, the amount petitioner deposited was returned to him less $ 7.50 retained as "bail bond costs." pursuant to the bail statute. The amount returned was 1 per cent. Of the total bail and 10 per cent of the amount actually deposited. In a subsequent class action, Schilb challenged the Illinois bail system on Fourteenth Amendment due process and equal protection grounds. The Circuit Court of St. Clair County upheld the statute and dismissed the complaint. The Supreme Court of Illinois affirmed, with two justices dissenting. Schlilb appealed to the United States Supreme Court".
' The United States Supreme Court rejected this challenge and found that system of cash security was not constitutionally invalid. The same rule is found in:
(1) Manning v. State 190 Okla 65,120 P 2d 980.
(2) Re Wright. 228 NC 584 SE 2d 696.
' The popular meaning of 'Bail' is simply the security given for the due appearance of a prisoner to obtain his release from imprisonment, and in this sense it can mean either cash or bond. Sawyer v.
Barbour, 142 Cal. App. 2d 827, 300 P2d 187.
(3) State v. Langford, 223 SC 20 73 SE 2d 854.
(4) Bottom v. People, 63 Code 114, 164 P.697.
(5) Isbell v. Bay County Circuit Judge, 215 Mich 364, 183 NW 721, 16 ALR 971.
(6) Scarboro v. State. 207 Ga 449, 62 SE 2d 168.
(7) Wilson v. Justice's Court of San Diego Twp.22 Cal App 2d 278, 70 P2d 695.
(8) Snyder v. Gross, 69 Neb 340, 95 NW 636.
(9) Campbell v. Reno County, 97 Kan 68 164 P 257: Re Henderson, 27 ND 155, 145 NW 574 Ahsinhs v.
Bowyer, 39 Okla 376, 135 P 413.
(10) Young v. Stoutamire, 131 Fla 535 m 179 So 797.
(11) Young v. Stoutamire, supra Clerks of Court as Custodians of cash bail, see Clerks of Courts (1st 3d Sec. 15)."
7. Of course the system of criminal administration of justice in United States is essentially based upon Anglo-Saxon jurisprudence and common law of England. However, the Legislature, in the said country, had enacted various laws to provide cash security in the context of their peculiar and local conditions flowing from their socio-economic conditions. The question for consideration is whether we can seek help from the above systems? Has this Court any power in the context of Ehtesab Ordinance, to ask for cash security. It is common between the accused and prosecution that Ordinance is a special legislative measure designed to eradicate corruption/corrupt practices and punish the perpetrators of such offence falling to domain of white collared crime. This crime is so rampant that it has eroded the credibility of all the national institutions. 'The Division Bench of this Court of which one of us (Mian Allah Nawaz, J.) was a member, had the occasion to examine this matter in M/s. Aisha Spinning Mills Ltd v. Federation of Pakistan (1995 PTD 493). It was observed therein: "These golden words are fully applicable to socio-economic dynamics of our society which is steped into tax evasion, the avoidance of tax, their non-reporting corruption and smuggling. The smuggled goods are being sold in big cities right in the presence and right in the face of anti- smuggling agencies. These aspects of society are no longer secret. No normative values are in operation to condemn, ridicule the deviationists. The theory of approbation and reprobation seems to be non-existent. The revenue evaders, black marketeers, corrupt officials smugglers, the beneficiaries of corruption and so on so forth, do walk in the society without any fear of censure/ridicule and roam like unbridled stations. The upholders of normative values seem to have capitulated before deviators. We are here, reminded of maxim that Chief devil of good is in its incapacity to fight. No doubt the supremacy of rule of law without supportive normative value is mere illusion. Dealing with these problems, the National Finance Commission said in 1986; ' The extent of tax evasion is difficult to estimate precisely even in countries which have reliable economic statistical data. Kaldor in his 'survey of Indian Taxation System' made an estimate of the order of magnitude of evasions in India by method and in premises which are by no means precise. From the national income statistics he extracted the non-salary income in each sector, made certain assumptions in respect of the percentage of income in each sector that was above the tax exemption limit, multiplies the non-salary income with this percentage and arrived at the amount which should have been subjected to tax. On comparing his estimate with the amount of non-salary income which was actually assessed to tax, he found that more than half the total non- salary income had escaped taxation.
' Though this method of calculation depends on assumptions on which there can be disagreement, it appears to be the best mode of calculation available. We have, therefore, used a somewhat similar method to arrive at an approximate projection of the extent of tax evasion. Based on the National Income Accounts for 1984-85, the methodology adopted in Annexure VII shows that as against the assessed income of Rs,19;299 million, the amount that escaped income tax was Rs,50,763 million. In other words 72.4% of the income liable to tax escaped taxation in the relevant year.. This represents escaped income for one year only. As the income tax paid on assessed income works out historically to about 36.5% of that income, the tax evaded on Rs,50,763 million would be Rs,18,528 million for the year 1984-85 as against about Rs,7,000 million actually assessed that year. Similar projection can be made for earlier years which will indicate that the tax evaded runs into astronomical figures.
' Another method of calculation adopted in Annexure VIII indicates the cumulative amount of black money in our economy. This estimate gives the cumulative figure of total black wealth in Pakistan at Rs,1,80,000 million by taking into account approximate amounts of black money existing at present in the forms of unaccounted for bank deposits, currency notes, gold and other valuables, black capital in business, undisclosed real .Estate, foreign deposits and assets, and household effects and luxury cars.
' A comparison of the extent of black money in Pakistan with the extent of black economy in India may also be found revealing studies undertaken in India to quantify the extent of black income give varied estimates but with the unanimous conclusion that tax evasion is rampant there. The estimates made yield figures which range from 3.6% of the G.N. P to as high as 13% of the G.N.P, and from Rs,1,72,090 million of tax evaded income to Rs,4,68,660 million of black economy generated in a year. These estimates have been reproduced in Annexure IX."
8. This picture related to the year 1986. A decade has since gone. The amount of ill-begotten black money must have by now swelled to immeasurable proportions. Ex facie we are on the thresh-hold of economic collapse, we were informed that the corrupt officials and corrupt holders of public offices, had smuggled their ill-begotten money outside the country and deposited it in the banks of so-called civilised countries. Unfortunately such question has not come to us otherwise owe would have ventured to examine the possibility of recovery of the aforesaid amounts so that out micro macro imbalances could be corrected. All these things had happened because the various legislatures were unable to enact appropriate legislative insures to eradicate, what is shortly called, a white collared crime. This Ordinance we enacted by the Government to deal with the above situation. The learned Special Prosecutor informed us that the new Govt was fully aware of the situation obtaining in the country and soon this Ordinance will become an Act with appropriate amendments so that no corrupt person is free from this net.
9.Stage is now set to examine and answer the crucial issue. We feel it necessary to restate at this juncture that Pakistan was created on the basis of "Two Nations Theory" rooted in the ideology of Islam. The objectives resolution was as passed by first constituent assembly and thereafter was made substantive part of the Constitution. It was held by the Supreme Court of Pakistan that the Courts in this country were under compulsive duty to apply the common law/principles of Islamic jurisprudence to areas/fields which were still vacant. See Aziz A. Sheikh v. Commissioner of 1.T1 (PLD 1989 SC 613).
10. Section 2 of the Ordinance is a definition clause. Section 3 deals with the corruption and corrupt practices. Subsection (2) of this section states that all offences under this Ordinance shall be non- bailable and no other Court except this Court shall have power to grant bail to the accused.
Subsection (3) states that holder of a public office,. Who is accused in this Ordinance, shall not he released ,on hail by Court if there appear reasonable grounds for believing that he was guilty of such offence. Subsection (4) postulates that if bail is allowed to such an accused the amount shall he fixed having regard to gravity of charge against such persons and where the charge specifies any amount in respect of offence, the amount shall not be less than twice the said amount. Section 4 provides the sentence for office. Section 5 is of significance. It empowers the Court to sentence the accused to such amount of fine which shall be in no case less than the gain derived by the accused. Section 6 of this Ordinance prescribes that the Court shall have power to freeze the movable/immovable assets of the accused at any time.
1 1 . A plain reading of the above provisions shows that form of securities enjoined under section 513/514. Cr.P.C. Is not applicable in the new dispensation and Court has inherent jurisdiction to evolve its own procedure for securities. In this new dispensation it has been clearly stated that the grant of hail in offences committed under this Ordinance shall not be a rule but an exception: that the Court shall have a right to grant hail if it finds that there are more reasonable grounds to believe that the accused had committed the offence although tentatively. The object of this legislation is to weed out corruption and see that ill-be gotton wealth/money is recovered from such wrong doers. The Court even has been granted powers to freeze the property of the accused at any time before or during the trial. Taking the above factors into consideration we are inclined to hold that the area of asking security from the accused who is allowed bail is vacant and this Court is not enjoined under the law to mathematically follow the systems of securities provided in the Code of Criminal Procedure. Bearing in mind the above factors we applied the rule down in Shujaat Hussain v. State (1995 SCM R 1249) and allowed bail to Hakim Ali Zardari in Ehtesab Reference No, 17 of 1997 vide order dated 29-4-1997 subject of furnishing of security in following terms: "Keeping in view the above principle and the rule of accountability embodied in this Ordinance, we are of the opinion that cash security of Rs,100.00,000 (one crore rupees) shall serve the ends of justice. We accordingly, direct applicant to furnish above cash security to. Additional Registrar of this Bench within three weeks of this order. This shall he inclusive of the amount of Rs,20.00,000 (rupees .Twenty lacs) already deposited by him under our order dated 8-4-1997. Additional Registrar shall deposit this amount in the bank where already deposited amount lies. This period was fixed by Bench with the consent of the learned counsel for the applicant. The applicant shall also surrender his passport forthwith..."
12. For reasons detailed above, we are of the considered view that this Court, in cases under new dispensation has ample power to ask for cash security in appropriate cases. We, therefore, find no good reason to review our order dated 30-4-1997 and dismiss this Criminal Miscellaneous accordingly.