1. SAIDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is directed against the order of the learned Ehtesab Bench of Lahore High Court dated 29-4-1997. Leave has been granted in the above appeal to consider whether the Ehtesab Bench acted within its jurisdiction in directing the appellant to furnish cash security in the sum of Rs,10,000,000 while admitting the appellant to bail in Ehtesab Reference No,17 of 1997.
2. The facts leading to filing of Ehtesab Reference No,17 of 1997 before the Lahore High Court against the appellant need not be repeated here as they are stated in full detail in the impugned judgment. Even otherwise these facts are not necessary for decision of the controversy raised before us. Suffice it to say that appellant was arrested from his Karachi residence in Ehtesab Reference No,17 of 1997 by the F.I.A. And after arrest he was produced before a Magistrate who remanded him to the police custody till 4-1-1997. After expiry of period of remand the appellant was remanded to judicial lock-up. The appellant applied for his post-arrest bail before the High Court of Sindh, which was granted on 8-1-1997 with the direction to the appellant to approach the Ehtesab Bench within 7 days of its constitution.
3. The appellant, accordingly, approached the Ehtesab Bench of Lahore High Court which allowed interim bail to the appellant on condition of furnishing bail bond in the sum of Rs,10,00,000 with two sureties, each in the like amount to the satisfaction of Registrar, Ehtesab Bench. It appears that the appellant was unable to provide two sureties in the sum of Rs,10,00,000 each as directed by the Ehtesab Bench on 2-4-1997, and therefore, he approached the Court with the prayer that he may be allowed to deposit prize bonds worth Rs,20,00,000 in place of two sureties of Rs,10,00,000 each.
2. The Ehtesab Bench by its order dated 8-4-1997 allowed the above prayer of appellant and directed him to deposit prize bonds of the value of Rs,20,00,000 with the Registrar of Ehtesab Bench, who in turn was to deposit the prize bonds in a locker with some branch of Nationalised Bank and after obtaining receipt for deposit of same, furnish the same to the Court. Thereafter, the case came up for confirmation of interim bail granted to appellant before the Ehtesab Bench, on 29-4-1997. The learned Court after hearing the counsel for the parties and reviewing the case-law, confirmed the interim bail granted to appellant on the following terms:- "12. As a result of the foregoing discussion, we are inclined to confirm our order dated 2-4-1997.
3. However, we are persuaded to change the amount of bail bond consonance with the facts of the case noted above. The applicant had secured loan of Rs,30,00,000 (Rupees thirty lacs) from N.D.F.C.
4. As Managing Director of Morga Hotel Ltd; has so far not repaid it and same, so, has swelled to 1,40,00,000 (Rupees one crore and forty lacs) till 1996 as stated by parties; that the applicant also received earnest money from the last vendee; that the project of Tourism Village is still in papers; that the money, so involved in this Reference, is almost more than rupees one crore; that section 3(4) of Ordinance, 1997 postulates that the amount of bail shall be fixed with regard to gravity of charge against such person and where such charge specifies an amount, it shall not be less than twice. Similar edict in Banking Ordinance, 1984 was not meticulously adhered to by the Supreme Court in Ch. Shujaat Hussain's case (supra). 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,1,00,00,000 (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.
5. This shall be 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 this Bench with the consent of the learned counsel for the applicant, The applicant shall also surrender his Passport forthwith. This application so stands disposed of in above terms."
4. Mr. K.M.A. Samdani, the learned counsel for the appellant in support of the appeal contended before us, that the imposition of the condition by the learned Ehtesab Bench for deposit of the bail amount in cash in the Court while confirming the bail granted to appellant, was wholly illegal as imposition of such a condition was in direct conflict with the provisions of section 499, Cr.P.C. The learned counsel in support of his above contention relied on the following cases:--
(i) Mian Mahmud Ali Kasuri v. The State (PLD 1963 SC 478);
(ii) Lakhi Narayan Kundu v. The Crown (PLD 1955 SC 84);
(iii) R.R. Chari v. Emperor (AIR 1948 Allahabad 238);
(iv) Moti Ram v. State of Madhya Pradesh (AIR 1978 SC 1594); and
(v) Rajballam Singh v. Emperor (AIR 1943 Patna 375).
6. ' The learned counsel also referred passages from Halsbury's Laws of England (Volume 10) and American Jurisprudence (Volume 8) to highlight the concept of bail in criminal cases. Referring to the provision of Ehtesab Ordinance (XX of 1997), hereinafter to be referred as 'the Ordinance' only, the learned counsel for the appellant contended that the provision contained in the Code of Criminal Procedure (hereinafter to be referred as the Code' only) are not completely ousted by the Ordinance, in their application to the proceedings under the Ordinance as would appear from section 12 of the Ordinance. Mr. Samdani also argued that mention of sections 497, 498 and 561-A of the Code in section 3(2) of the Ordinance is only with reference to the jurisdiction of other Courts to grant bail in matters arising under the Ordinance, otherwise these provisions apply in matters of bail arising under the Ordinance. In any case, Mr. Samdani contended, the provisions of section 499 of the Code are not specifically mentioned in section 3(2) of the Ordinance, and therefore, these provisions continued to be applicable to matters of grant of bail under the Ordinance. With reference to the provision of the Ehtesab Act, 1997 (hereinafter to be retired as 'the Act' only) promulgated on 31-5-1997, Mr. Samdani contended that the provisions contained in the Act empowering the Court to direct the deposit of the amount of bail in the Court, as a condition for grant of bail, cannot be applied to the present cases firstly, the Act is prospective in operation and secondly, the appellant having been released on bail under the Ordinance, his right to remain on hail on furnishing bail bond and sureties could not be taken away under the Act by imposing such harsh condition of deposit of the bail amount in cash.
5. Replying to the above arguments of Mr. K.M.A. Samdani, the learned Attorney-General of Pakistan contended that the matter of furnishing of bail bond or sureties is a matter relating to procedure only connected with the grant of bail by the Court. Therefore, any change brought about in the said procedure was applicable to all pending cases. The learned Attorney-General alternatively contended that even under the provisions of the Ordinance, there was no prohibition on the powers of the Court to order the deposit of the amount of bail in Court as condition of bail as the object of the Ordinance was not only to punish a person who was found guilty of corruption or corrupt practices but also to recover property acquired by him through such corruption or corrupt practices by imposing fine and seizure of his properties movable or immovable. The learned Attorney-General argued that under the Ordinance, the Court while admitting an accused to bail could not fix the amount of bail less than twice the amount specified in the charge in respect of which offence is alleged to have been committed whereas in the present case the appellant was ordered to be released by the Court only on deposit of Rs,10,00,000 which was far less than the amount specified in the charge against him. The learned Attorney-general contended that the Ordinance was replaced by the Act on 31-5-1997 which provided that any proceeding pending before the Court under the Ordinance, shall continue under the Act, and therefore, the validity of the order passed by the Court is to be judged in the light of the provisions contained in the Act.
6. The learned Ehtesab Bench while examining the allegations against the appellant observed in the order confirming the interim bail granted to appellant that the amount of loan which the appellant failed to repay stood at Rs,1,40,00,000. However, following the rule laid down by this Court in the case of Ch. Shujaat Hussain v. State (1995 SCM R 1249), the learned' Court fixed the amount of bail at Rs,1,00,00,000 (Rupees one crore only) and further directed the appellant to deposit this amount in cash with the Court.
7. We will first examine the effect of repeal of Ordinance by the Act as in our view if the order passed by the learned Ehtesab Bench is legally sustainable under the changed circumstances, it may not be necessary to examine other contentions of the learned counsel for the appellant in the above appeal.
7. ' The learned' Ehtesab Bench confirmed the interim bail granted to the appellant by order dated 29-4-1997 subject to deposit of a sum of Rs,1,00,00,000 (Rupees one crore only) by the appellant in Court. The appellant did not deposit the above amount but challenged the order of Ehtesab Bench before this Court. While the appeal filed by the appellant before this Court was pending, the Ordinance was repealed by the Act. Section 31(2)(c) of the Act which saved the proceedings pending under the Ordinance reads as follows:-- "(c) any proceedings pending before a Court under the Ehtesab Ordinance, 1997 (XX of 1997), shall continue under this Act and it shall not be necessary to re-call any witness or once again record any evidence that may have been taken down."
8. The clear effect of the above provision in the Act is that the proceedings pending under the Ordinance are to continue under the Act. The first question which arises for consideration in this case, therefore, is whether the condition for deposit of bail amount in cash in the Court, is a valid condition in view of the change in the law. The answer to this question depends on a finding whether the conditions for grant of bail are matters relating to procedure or they relate to substantive rights. The provision regarding grant of bail to an accused person under the Ordinance were contained in subsections (2) to (4) of section 3 of the Ordinance which was as follows:-- "(2) All offences under this Ordinance shall be non-bailable and, notwithstanding anything contained in sections 497, 498 and 561-A or any other provision of the Code or any other law for the time being in force, no Court other than the Court defined in clause (e) of section 2 shall have jurisdiction to grant bail.
(3) A holder of public office accused of an offence under this Ordinance shall not be released on bail by the Court if there appear reasonable ground for believing that he has been guilty of such an offence, nor shall an accused person be so released unless the Chief Ehtesab Commissioner has been given notice of the bail application.
(4) Where a holder of public office accused of an offence under this Ordinance is released on bail, the amount of bail shall be fixed having regard to the gravity of the charge against such person and, where the charge specifies any amount in respect of which the offence is alleged to have been committed, shall not be less than twice the said amount."
9. ' The provisions for grant of bail to a person accused of an offence under the Act are as follows:-- "Section 3.....
(3) A holder of a public office or any other person accused of an offence under this Act shall not be released on bail by the Court if there appear reasonable grounds for believing that he has been guilty of such an offence.
(4) Where a holder of a public office or any other person accused of an offence under this Act is released on bail, the amount of bail shall be fixed having regard to the gravity of the charge against such person and, where the charge specified any amount in respect of which the offence is alleged to have been committed, shall not be less than the said amount: ' Provided that the Court may direct that the amount be deposited in Court.
(5) No Court shall release an accused person on bail unless the Chief Ehtesab Commissioner and the prescribed law officer have been given notice of the bail application and been given an opportunity of being heard."
10. A comparison of the provisions relating to bail contained in the Ordinance and the Act would show that in so far the principle for grant of bail both under the Ordinance and the Act, it remained the same, namely, the grant of bail is an exception in cases arising both under the Ordinance and the Act. Therefore, to the extent of the rights of an accused to be enlarged on bail under the Ordinance, it remained unaffected by the provisions of the Act. However, the provisions in the Act dealing with the conditions on which the accused is to be released on bail by the Court are somewhat different from the Ordinance.
11. ' Under the Ordinance, the Court while admitting the accused to bail was required to fix the amount of bail, keeping in view the gravity of charge against him and in case the charge specified any amount in respect of which the offence is alleged to have been committed, not less than twice the said amount. However, under the Act the amount of bail to be fixed by the Court shall not be less than the amount mentioned in the charge in respect whereof the offence is alleged to have been committed. Under the Ordinance, there is no specific provision authorising the Court to direct the accused to deposit the amount of bail in Court while under the Act the Court has a discretion to direct the deposit of the amount of bail in Court. The above comparison of the provisions of the Ordinance with the Act shows that the provisions of the Act relating to fixation of the amount of bail are more beneficial to, the accused as compared to the provisions in the Ordinance. The question which arises in the case is, whether the provisions relating to fixation of amount of bail and the discretion conferred on the Court to order deposit of this amount in the Court under the Act, are only matters of procedure or they also touch upon the existing rights of the parties. In the case of Adnan Afzal v. Sher Afzal (PLD 1969 SC 187) this Court laid down the rules of interpretation of statutes relating to procedure and those touching the existing rights of the parties as well as the matters which would fall within the category of procedural matters only, as follows:-- "The general principle with regard to the interpretation of statutes as laid down in the well-known case of the Colonial Sugar Refining Company Limited v. Irving 1905 AC 369 is that 'if the matter in question be a matter for procedure only', the provisions would be retrospective. 'On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act', then 'in accordance with a long line .Of authorities extending from the time of Lord Coke to the present day', the legislation would not operate retrospectively, unless the Legislature had either 'by express enactment or by necessary intendment' given the legislation retroactive effect. To the same effect are the observations of Jessel, Master of the Rolls, in the case of In re: Joseph Suche & Co. Limited (1975) I Ch.D 48, where it was observed that as "a general rule when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. It is said that there is one exception to that rule, namely, that, these enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights.
12. ' The question for consideration there was regarding the right of a secured creditor of a company to prove for the full amount of his debt without deducting the value of his securities in the course of the winding up. That was held to be, in substance, a right of action for the recovery of a debt and, therefore, section 10 of the English Judicature Act was held not to apply retrospectively."
13. ' The principle has been admirably put by Crawford in his Book on Construction of Statutes, 1940 Edition, page 581, as follows:-- "As a general rule, legislation which relates solely to procedure or to legal remedies will not be subject to the rule that statutes should not be given retroactive operation. Similarly, the presumption against retrospective construction is inapplicable. In other words, such statutes constitute an exception to the rule pertaining to statutes generally. Therefore, in the absence of a contrary legislative intention, statutes pertaining solely to procedure or legal remedy may affect a right of action no matter whether it came into existence prior to, or after the enactment of the statute. Similarly, they may be held applicable to proceedings pending or subsequently commenced. In any event, they will, at least, presumptively apply to accrued and pending as well as to future actions."
14. ' This principle has also been fully adopted by this Court in the ease of The State v. Muhammad Jamil PLD 1965 SC 681 and Muhammad AIM V. The State PLD 1967 SC 259.
15. ' The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure. Provided the burden of proof is not shifted. Thus a statute purporting to transfer jurisdiction over certain causes of action may operate retroactively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only.
16. Nevertheless, it must be pointed out that if in this process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an interpretation giving retrospective effect to the statute. On the other hand if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or determine to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively."
17. ' In the celebrated book "Maxwell on Interpretation of Statutes" (Eleventh Edition), the learned author while considering the effect of section 11 of the Summary Jurisdiction Act, 1848 and section 10 of the Mercantile Law Amendment Act, 1856, which affected the right to sue, which accrued before passing of these statutes, made the following comments:-- "In both of the above cases the construction, though fatal to the enforcement of a vested right, by shortening the time for enforcing it, did not in terms take away any such right, and in both it seems to fall within the general principle that the presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of the Courts, even where the alteration which the statute makes has been disadvantageous to one of the parties. It matters not that the effect of a procedural alteration is to make a prosecution under a Penal Act possible, where formerly it had been impossible. Although to make a law punish that which, at the time when it was done, was not punishable, is contrary to sound principle, a law which merely alters the procedure may, with perfect propriety, be made applicable to past as well as future transactions, and no secondary meaning is to be sought for an enactment of such a kind. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or the tort; it takes.Away no vested right, for the defaulter can have no vested right in a state of the law which left the injured party without, or with only, a detective remedy. If the time for pleading were shortened,or new powers of amending were given, it would not be open to the parties to gainsay such a change, the only right, thus, interfered with being that of delaying or defeating justice, a right little worthy of respect. Thus, the repeal of the Sale of goods Act, 1893 (C.71), section 4, as to the need for a note or memorandum in writing, deprived a defendant of the defence of the absence of such a note, notwithstanding that the .Writ was issued and the defence delivered before the repeal."
18. ' In the light of abovestated principles, we now proceed to examine whether the change brought about by the Act related only to matters of procedure or it also touched upon the existing rights of the appellant.
8. The provision in the Act conferring jurisdiction on the Court to direct deposit of bail amount in the Court instead of executing bond or offering sureties for the amount in our view related only to a procedural matter which did not affect the existing right of appellant for grant of bail under the Ordinance. Whether the concession of bail allowed by the Court is to be enjoyed by the accused on execution of a personal bond, furnishing of sureties or deposit of amount of bail in Court is purely regulatory and procedural in nature in which the person enlarged on bail, in our view, cannot claim any vested right. Similarly, the provision in the Act that the amount of bail should not be fixed by the Court less than the amount mentioned in the charge, is more beneficial to the accused as compared to the provision in the Ordinance, which provided that such amount should not be less than twice the amount mentioned in the charge. The fixation of amount of bail in the case before us is not under challenge and therefore, mere fact that the accused is required to deposit the amount in Court instead of securing the same through sureties or bond cannot be said to have caused prejudice to the accused or have taken away any of his vested right. Section 31(2)(c) of the Act clearly provides that the proceedings pending under the Ordinance, were to continue under the Act, and as such all the provisions of the Act relating to procedural matter fully applied to a case pending under the Ordinance. Therefore, without going into the argument whether the Court was competent under the Ordinance to direct the appellant to deposit the amount of bail in Court, we are of the view that the impugned order of the Ehtesab Bench was valid under the proviso to section 3(4) of the Act. Since the matter relating to grant of bail to appellant was pending in appeal when the Act was promulgated altering the procedure applicable to the grant of bail, the validity of the order of Ehtesab Bench is to be decided in the light of provisions of the Act which applied in the present case. It is not disputed before us that under the Act, the Court while admitting a person to bail in a case arising under the Ordinance or Act could direct deposit of the amount of bail in Court in terms of the proviso to section 3(4) of the Act. Therefore, no exception could be taken to the impugned order.
9. In view of our conclusion that the impugned order was valid under the provisions of the Act, it is not necessary to examine the other contentions raised by the learned counsel for the appellant regarding applicability of the provisions of section 499, Cr.P.C. To the proceedings before the Ehtesab Bench under the Ordinance. No ground for interference with the impugned order is made out. The appeal is, accordingly, dismissed. However, as the time allowed by the Ehtesab Bench for deposit of amount to appellant has lapsed, we allow four weeks time from the date of this order to the appellant to deposit the amount in terms of impugned order.
19. (Sd.)
20. ' Saiduzzaman Siddiqui, J.
21. (Sd.)
22. ' Raja Afrasiab Khan, J.
23. ' MUKHTAR AHMAD JUNEJO, J.---My learned brother Saiduzzaman Siddiqui, J. Has been good enough to supply me copy of the judgment, authored by him in this case. For the reasons which I propose to give in this dissenting note, I am unable to agree with the conclusion arrived at by my learned brother and the reason for the same.
24. ' Facts of the case are simple. The Chief Ehtesab Commissioner filed in the Ehtesab Bench of Lahore High Court Ehtesab Reference No,17 of 1997 against appellant Hakim Ali Zardari, with following allegations:-- "(1) That, 4.5 acres of land in Survey No,721 National Park, Rawalpindi Cantt. Was pledged with N.D.F.C. By Mr. Hakim Ali Zardari, Chairman, Tourist Village (Pvt.) Ltd., Rawalpindi for obtaining a loan of Rs,86.789 million in 1989. The loan was sanctioned and an amount of Rs,3 million was also disbursed in 1990. On 30-6-1996 an amount of Rs,1,31,58,337.52 was outstanding against the party on this count. (Annexure '0').
(2) That, since the aforesaid land was already pledged, it could not be sold/disposed of without the permission of N.D.F.C., while no such permission was obtained or even requested as stated by the N.D.F.C. Officials.
(3) That, despite above legal position Mr. Hakim Ali Zardari had in March, 1994 entered into a sale agreement with Sh. Abdul Hameed of M/s. Bilz (Pvt.) Ltd., Multan for sale of 27 Kanals representing 75% shares of M/s. Zardari group in the Company for a total sum of Rs,25 million. He also received Rs,5 million as earnest money through pay order. However, the sale-deed could not materialise as the purchasing party came to know that the seller owed about Rs,one crore to N.D.F.C. Against' this land and further he also failed to provide N.O.Cs. From P.T.D.C./Cantt. Board, Rawalpindi. Mr. Hakim Ali Zardari refunded the aforesaid earnest money in January, 1995.
(4) That, again in September, 1994 Mr. Hakim Ali Zardari made an agreement with Mr. Zafar Mehmood Khan of Rawalpindi for sale of the whole 4.5 acres for Rs,2,45,00,000 without consent/approval of the N.D.F.C. He even sold the 25% shares of P.T.D.C. Without their consent.
(5) That, the conditional decision to disinvest their shares worth Rs,2.7 million was taken by the Board of P.T.D.C. On 1-12-1994 but Mr. Hakim Ali Zardari even did not bother to respond to P.T.D.C.
25. Letters conveying him the conditions for disinvestment."
26. ' In consequence, the appellant was arrested and under orders of the concerned. Magistrate he was kept in police custody till 44-1997 and then he was remanded to judicial custody. On 8-1-1997 the appellant was granted bail by the Sindh High Court on condition of moving the concerned Ehtesab Bench within seven days of its formation. On moving the Ehtesab Bench of Lahore High Court, the appellant was granted interim bail in sum of Rs,one million with two sureties each in sum of Rs,one million. The interim bail granted to the appellant on 2-4-1997 was confirmed under the impugned judgment dated 29-4-1997 by the concerned Ehtesab Bench, which directed the appellant to furnish cash security of Rs,one crore with the Additional Registrar of Lahore High Court.
27. ' Leave to appeal was granted by this Court on 27-5-1997 in general terms, to consider several questions of public importance.
28. ' After hearing arguments of Mr. K.M.A. Samdani, learned counsel for the appellant and Chaudhry Muhammad Farooq, learned Attorney-general for Pakistan and Mian Qurban Sadiq Ikram, learned counsel for respondent No,2, feel that the questions, which require to be considered and determined are:-- #TBS (i) #TBE Whether the ouster provisions contained in subsection (2) of section 3 of the Ehtesab Ordinance (No,XX of 1997) and in subsection (2) of section 3 of the Ehtesab Act (No,IX of 1997) nullify the provisions contained in sections 497, 498 and 561-A of Cr.P.C.?
(ii) Whether substitution of the provisions contained in subsection (2) of section 3 of the Ordinance XX of 1997 by the provisions contained in subsection (2) of section 3 of the Act IX of 1997 due to repeal of Ordinance No,XX of 1997 by the Act IX of 1997, can be given. Retrospective effect or prospective effect?
(iii) Whether a Court granting bail to a person accused of an offence under some special law, by exercising the powers contained in Chapter XXXIX of the Code of Criminal : Procedure, can order him to furnish only cash security?
(iv) Whether Ehtesab ,Bench of Lahore High Court was competent on 29-4-1997 to order the appellant to furnish cash security when Ehtesab Ordinance XX of 1997 was in force till 31-5-1997?
(v) Whether in the facts and circumstances of this case, the Ehtesab Bench was justified in ordering the appellant to furnish cash security of rupees one crore?
29. Before determining the questions listed above, it may be observed here that the law of bails occupies an important place in the administration of criminal justice. The concept of "bail" emerges from the conflict between the police power to restrict the liberty of a man who is alleged to have committed a crime and the presumption of innocence in favour of the alleged criminal.
30. The State in its anxiety to protect its subjects from the onslaughts of criminals, has vested the police with power of arrest and of approaching the criminal Courts with a prayer for keeping the accused in custody. In a primitive society there was no conception of bail, but in a civilized society the bail has become the rule. ' Man's thought on the right of bail dates back from the 17th Century, or even earlier when several schools of thought came into existence with an assertion `that man has certain natural or inalienable rights and that it is the function of the State to give recognition and free play to those rights, in order that human liberty may be preserved and human personality developed. It would be profitable to quote from the case of Moti Ram v. State of Madhya Pradesh (AIR 1978 SC 1594) that the concept of bail has a long history and deep roots in English and American law. In medieval England, the custom grew out of the need to free untried prisoners from disease ridden jails, while they were waiting, for the delayed trials conducted by travelling justices.
31. Prisoners were bailed, or delivered, to reputable third parties of their own choosing, who accepted responsibility for assuring their appearance at trial. In said case, there is also reference to the Bail Reform Act of 1966 which came into being in the United States, as a result of American criminological thinking and research. At the signing ceremony of the Bail Reform Act, 1966, the then President Lyndon B. Johnson made the following observations:- "Today, we join to recognize a major development in our system of criminal justice, the reform of the bail system.
32. ' This system has endured --- archaic, unjust and virtually unexamined --since the Judiciary Act of 1789.
33. ' The principal purpose of bail is to insure that an accused person will return for trial if he is released after arrest.
34. ' How is that purpose met under the present system? The defendant with means can afford to pay bail. He can afford to buy his freedom. But the poorer defendant cannot pay the price. He languishes in jail weeks, months and perhaps even years before trial."
35. ' What is basic conception of bail?
36. ' The answer is provided in the case of The Crown v. Khushi Muhammad (PLD 1953 Federal Court 1970) in the following words:- "The basic conception of the word 'bail' is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so. This is the meaning which has been given to the vord 'bail' in Standard English Dictionaries as well as in Wharton's Law Lexicon and Stroud's Judicial Dictionary. This is also borne out by the form of bond and hail bond given in Schedule V of the Cr.P.C."
37. ' A somewhat similar view was taken in the case of Mian Mahmood Ali Kasuri and others v. State (PLD 1963 SC 478) where it was explained that an accused person is said at common law to be admitted to bail, when he is released from the custody of the officers of the Court and is entrusted to the custody of persons known as his sureties, who are bound to produce him to answer, at a specified time and place, the charge against him and who in default of so doing, are liable to forfeit such sum as is specified when bail is granted. This observation was based on a consideration of relevant sections of the Cr.P.C. As well as on "Concise Law Dictionary" by Osborn (1927 Edition), page 32.
38. ' It may be mentioned here that the law of bails is not a static law but is growing all the time moulding itself with the exigencies of time, as in times of war and crisis it leans in favour of the society and the government, while in times of peace it leans in favour of the individual and the subject. The main purpose of keeping an undertrial accused in detention is, to prevent repetition of the offence with which he is charged or perpetration of some other offence and to secure his attendance at the trial. Such object has to be achieved within the framework of a man's right to liberty, which is the cherished right which he enjoys alongwith other rights, collectivley known as his freedom. This leads one to consideration of the fundamental rights, which are based on concepts of freedom, justice and fairplay. These are not new, but are a man's natural rights which he inherits on birth. They include right to live and to earn for such living, right to have a shelter and to own a house and the right to lead free life. These rights arc enshrined in Part II of the Constitution of Pakistan, 1973, and include security of person, put in Article 9, of the same. Black-Stone in his celebrated commentaries on the Laws of England propounded his philosophy of natural and absolute rights, which he reduced to three principal or primary articles: The right of personal security, the right of personal liberty and the right of private property.
39. ' With this background, I proceed to consider the points formulated as above.
40. ' In respect of the point (1), Mr. Samdani learned counsel for the appellant argued that mention of sections 497, 498 and 561-A of Cr.P.C. In subsection (2) of section 3 of the Ehtesab Ordinance, 1997 (hereinafter to be mentioned as the Ordinance 1997) and in subsection (2) of section 3 of the Ehtesab Act, 1997 (hereinafter to be mentioned as the Act 1997), appeared to be motivated to restrict or oust jurisdiction of the Courts, other than the Court defined by clause (e) of section 2 of the Ordinance, 1997 as well as of the Act 1997. Relying on section 12 of the Ordinance, 1997 and section 12 of the Act 1997, learned counsel for the appellant contended that sections 497, 498 and 561-A of Cr.P.C. Were very much available to a Court of the competent jurisdiction, hearing an application for released on bail of a person accused of an offence punishable under the Ordinance, 1997 or under the Act 1997. Taking advantage of non-mentioning of section 499 of Cr.P.C. Either in subsection (2) of section 3 of the Ordinance, 1997 or in subsection (2) of section 3 of the Act 1997, learned counsel for the appellant was of the view that no order could be passed in conflict with the letter and spirit of the provisions contained in section 499 of Cr.P.C. Which were unhampered by any provision of law.
41. ' Chaudhry Muhammad Farooq, learned Attorney-general for Pakistan submitted that he would not prefer to argue that the Ehtesab Bench or this Court have become powerless in matters of bail after coming into force of the Ordinance 1997 or the Act 1997. Learned Attorney-general, however, emphasised on the phraseology used in subsection (3) of section 3 of the Ordinance, 1997 and in subsection (3) of section 3 of the Act, and was of the view that the provisions contained in said subsections were harsher than the provisions contained in section .497 of Cr.P.C.
42. ' Subsection (3) of the section 3 of the Ordinance 1997 reads as below:-- "A holder of public office accused of an offence under this Ordinance shall not be released on bail by the Court if there appear reasonable grounds for believing that he has been guilty of such an offence, nor shall an accused person be so released unless the Chief Ehtesab Commissioner has been given notice of the bail application."
43. ' Subsection (3) of section 3 of the Act 1997 reads as below:-- "A holder of a public office or any other person accused of an offence under this Act shall not be released on bail by the Court if there .Appear reasonable grounds for believing that he has been guilty of such an offence."
44. ' The language employed in section 3(3) of the Ordinance, 1997 or in section 3(3) of the Act 1997 does not take away right of an accused to be released on bail, unless there appear reasonable grounds for believing him to be guilty of an offence punishable under the Ordinance, 1997 or under the Act, 1997. Even under section 497(1) of Cr.P.C. a person accused of any non-bailable offence cannot be released on bail if there appear reasonable grounds for believing him to be guilty of an offence punishable with death or with imprisonment for life or for 10 years. In remaining non- bailable offences an accused may be released on bail after notice to the prosecution.
45. ' In the case of Allied Bank of Pakistan Limited v. Khalid Farooq (1991 SCM R 599) the provisions contained in section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance (No,IX of 1984), which are pari materia with the provisions contained in section 3(3) of the Ordinance, 1997 and section 3(3) of the Act, 1997 came for consideration. It was observed that the Ordinance No,IX of 1984, belt ig a special law conferring special power and jurisdiction on the Special Court and providing a special form of procedure relating to the trial of the scheduled offences, the Code of Criminal Procedure will not affect any provision dealing with such special power jurisdiction or procedure. In the same case it was also observed that section 5(6) of the Ordinance No,IX of 1984, is couched in negative language and the difference between its provisions and the provisions contained in section 497 of Cr.P.C. Is, of the fetters placed on Special Court's jurisdiction to first find as a fact that there appear no reasonable grounds for believing that the accused is guilty of a scheudled offence, even where the punishment is not served. It was made clear in said case that section 5(6) of the Ordinance No,IX of 1984, does not completely oust the applicability of section 497 of Cr.P.C. In respect of bails, and although the rule of subsection (1) of section 497 of Cr.P.C.
46. With a slight change and with its exception, has been introduced in subsection (6) of section 5 of the Ordinance IX of 1984, couched in negative language, no express or implied ouster of the remaining provisions of section 497 of Cr.P.C. Can be spelt out from it. It was further held in said case that it was not possible to subscribe to the view that section 5(6) of the Ordinance IX of 1984, constitutes a complete Code for the grant of bail to persons accused of the. Offences mentioned in the Schedule, to the exclusion of all the provisions in the Code of Criminal Procedure relating to the same subject. Case of Allied Bank of Pakistan (1991 SCM R 599) was followed in the case of State v.
47. Qaim Ali Shah (1992 SCM R 2192) where question of applicability of section 497(1) of Cr.P.C. Arose in respect of the persons accused of having committed an offence punishable under the Suppression of Terrorist Activities (Special Courts) Act, 1975, section 5-A(8) of which is pari materia with section 3(3) of the Ordinance 1997 and of the Act, 1997. It was held in the latter case that the High Court has power to press into service section 497 of Cr.P.C. With its provisos during pendency of the trial before the Special Court.
48. The provisions contained in subsections (2) and (3) of section 3 of the Ordinance, 1997 as well as of the Act 1997 may be harsher than the provisions contained in section 497 of Cr.P.C., for grant of bail.
49. Despite this, there is force in the contention of Mr. Samdani that mention of sections 497, 498 and 561-A of Cr.P.C. In subsection (2) of section 3 of the Ordinance, 1997 as well as of the Act 1997, does not amount to nullifying the provisions contained in sections 497, 498 and 561-A of Cr.P.C. And is meant to exclude jurisdiction of the Courts other than the Court defined by section 2 of the two statutes to determine the question of bail. First point, therefore, stands determined accordingly.
50. ' Coming to the second point, it is to be noted that the Ordinance has been repealed by section 31 of the Act, subsection. (2) of which says inter alia that notwithstanding repeal of the Ordinance, 1997 any proceedings pending before a Court under the Ordinance, 1997 shall continue under the Act, 1997 and it shall not be necessary to recall any witness or once again record any evidence that may have been taken down. Referring to the said provisions, Mr. Sadmani learned counsel for the appellant argued that the provisions contained in the Act cannot be given retrospective effect when it comes to imposition of a condition for hail. With reference to the instant case, Mr. Samdani contended that when bail was granted to the appellant on 8-4-1997, the Act of 1997 had not yet come into force and a "vested right" had accrued to the appellant to continue remaining on bail on furnishing of security of any kind not necessarily cash security and such right could not be taken away by the Act, 1997, which same in force on 31-5-1997 and which added proviso to subsection (4) of section 3 of the Act, in the following words: "Provided that the Court may direct that the amount be deposited in Court."
51. ' In the alternative Mr. Samdani argued that once the appellant was released on bail under the Ordinance, 1997 on executing bail bonds and furnishing required security his right to remain on bail on same bail bonds and same security, cannot be taken away by the Act of 1997. In reply learned Attorney-general argued that the matter relating to execution of bail bonds or furnishing of securities was a matter relating to procedure and that a procedural change was to be retrospective in effect. It was neit argued that even under the normal law, there was no prohibition on a Court of law to order deposit of cash security, as a condition for release on bail. Learned Attorney-general' further argued that the object of the Ordinance, 1997 was not only to punish a person who was found guilty of corruption or corrupt practices but also to recover property acquired by him through such "corruption" or "corrupt practices", and hence the Court granting bail was justified as well as duty bound to order deposit of cash security.
52. ' The law on the point is, more or less, settled about a statute being prospective or retrospective, depending upon whether it affects rights of the parties or was procedural only. In the case of Adnan Afzal v. Capt. Sher Afzal (PLD 1969 Supreme Court 187) it was observed as below: "The general principle with regard to the interpretation of statutes as laid down in the well known case of the Colonial Sugar Refining Company Limited v. Irving 1905 AC 369 is that 'if the matter in question be a matter of procedure only', the provisions would be retrospective. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, then in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the legislation would not operate retrospectively, unless the legislature had either by express anactment or by necessary intendment given the legislation retrospective effect."
53. ' Article 264 of the Constitution of Pakistan lays down inter alia that where a law is repealed, the repeal shall not affect the previous operation of the law or anything duly done or suffered under the law or affect any right, privilege, obligation or liability acquired, accrued or incurred under the law, or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, except as otherwise provided in the Constitution. This Article came up for consideration in the case of government of Punjab y. Zia Ullah Khan (1992 SCM R 602) where it was held that section 6 of general Clauses Act was couched in terms of Article 264 of the Constitution. Section 6 of the general Clauses Act reads as below: "6. Effect of repeal.---Where this Act or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then.
54. Unless a different intention appears, the repeal shall not--
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued-or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
55. Article 264 of the Constitution also came up for consideration in the case of Muhammad Arif v. The State (1993 SCM R 1589) where the case of Zia Ullah Khan was followed. In the case of Malik gul Hasan & Co. v. Allied Bank of Pakistan (1996 SCM R 237) it was held that where a statute affects a substantive right, it operates prospectively unless by express enactment or necessary intendment retrospective operation has been given. In the same case it was held that a statute which is procedural in nature, operates retrospectively unless it affects an existing right on the date of- promulgation or causes injustice or prejudice to a substantive right. This appears to be the settled position of law. The next question arises as to what are matters of procedure. This question has been answered in the case of Adnan Afzal (PLD 1969 SC 187) in the following words: "It is obvious that matters relating to file remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue parties' pleading and rules of evidence also pertain to procedure, provided the burden of proof is not shifted."
56. ' An interim relief given by a Court, like release of an accused person on bail, is not included in the list of matters termed to be procedural and given in the case of Adnan Afzal. Under the Code of Criminal Procedure the procedure for trial is given under Part VI while the provisions regarding grant of bail and the provisions regarding execution of bonds, are given under Part IX. This shows that the Legislature, which enacted the Code of Criminal Procedure, treated the matters regarding bail, to be extraneous to the trial of an accused on a criminal charge, and therefore, not procedural in nature. When it comes to the question of procedure, then whatever step is taken by a Court for furtherance of the trial, or towards making any progress in trial, can be considered procedural.
57. Grant or refusal of bail does. Not bring any progress in trial of an accused facing a criminal case.
58. ' The interim bail granted to the appellant under an order dated 2-4-1997 was modified by an order dated 8-4-1997 passed at his request, allowing him to deposit prize bonds of Rupees Twenty Lacs in lieu of furnishing two sureties in sum of Rs,10,000 each. Both these orders were passed before coming into force of the Act 1997. After passing of said orders under the replaced Ordinance, 1997, the matter regarding grant of bail to the appellant became a past and closed transaction under the repeated Ordinance, 1997. The provisions introduced as proviso below subsection (4) of section 3 of the Act, 1997, was a change in the substantive law and therefore cannot operate retrospectively to deprive the appellant of his right to remain on bail in terms of the order dated 2- 4-1997 modified by the order dated 8-4-1997. An observation in the case of Muhammad Ismail v.
59. Muhammad Rafique (PLD 1989 SC 585) that when the Court finds that the two essential conditions contained in section 497(2) of Cr.P.C. Are satisfied, the accused shall become entitled as of right to hail, shows that grant of bail to an accused on fulfilment of certain conditions is a right. The Ehtesab Bench while confirming its earlier order dated 2-4-1997 (modified on 8-4-1997) could not have, under the impugned order dated 29-4-1997, changed the terms of the bail from those given in the order dated 2-4-1997 as modified. On confirmation of the order dated 2-4-1997 as modified by the order dated 8-4-1997, the appellant was vested with a right to remain on bail on the terms and conditions mentioned in the earlier order dated 2-4-1997 as modified on 8-4-1997. Such right cannot be taken away by giving retrospective effect to the Act 1997. The terms of the order dated 2-4-1997 modified on 8-4-1997 cannot be altered to the prejudice of the appellant by ordering him to deposit in Court cash in lieu of furnishing two sureties in sum of Rupees ten lacs each, who were to execute such bonds as mandated by section 499 of Cr.P.C. As further held in the case of Muhammad Ismail (PLD 1989 SC 585) when an accused person becomes entitled as of right to bail under subsection (2) of section 497, the same cannot be withheld, because it is relatable to grant of a right and its exercise.
60. ' Even otherwise there are many instances where enactments procedural in nature, contain provisions creating substantive rights, for instance a provision authorizing filing of appeal made in a procedural law (see Colonial Sugar Refining Company Limited v. Irving 1905 AC 369).
61. There is plethora of case-law that vested rights are in all situations to be protected. In the case of government of Pakistan v. Zamir Ahmed Khan (PLD 1975 SC 667) it was observed, as below:-- "It must be conceded that the Courts have always endeavoured to protect vested rights, by refusing to allow statutes to have retrospective operation, unless such a result becomes inevitable from the express language of the statute or its necessary intendment."
62. ' In the case of Syed Qaim Ali Shah (1992 SCM R 2192) it was observed as follows:-- "A statute which transgresses on the rights of a subject whether as regards his person or property, should be so construed, if possible, which may preserve such rights. If two views of a provision of a penal nature are possible, one which favours an accused person be preferred over the other."
63. ' Contention of learned Attorney-general that the purpose of the Legislature in legislating the Ehtesab Act or its predecessor enactment, was not only to punish a person found guilty of corruption or of corrupt practices but to make good the loss occasioned by such corrupt practices, is weighty, but such consideration can be relevant only at the time of conclusion of the trial and not at the bail stage. In any criminal proceeding the remedy of bail is an independent relief, not much depending on the ultimate result which may ensue. The remedy of bail can be availed of even in a case where charge against an accused is of a grave nature involving embezzlement of huge amount, as per the case of Ijaz Akhtar v. State (1978 SCM R 64).
64. ' As result of all this discussion, I am of the considered view that the proviso below subsection (4) of section 3 of the Act, 1997, conspicuous by its absence in the Ordinance 1997, was a legislative change affecting rights of the persons, situated in the manner similar to the appellant, touching a right in existence at the time of passing of the Act, 1997 and the same cannot be given retrospective effect. Point No,(ii) stands answered accordingly.
65. ' On the point covered by (iii) Mr. Samdani, learned counsel for the appellant mainly relied on the provisions contained in section 499 of Cr.P.C. And argued that the Courts had no power whatsoever to impose any condition in a hail bond while granting bail. In this respect he referred to the case of Lakhi Narayan Kundu v. Crown (PLD 1955 Dacca 84). He was vociferous in contending that the condition of furnishing cash security cannot be imposed in a bail bond unless such request was made by the concerned accused person. He also cited the case-law which will be discussed hereunder. Mr. Samdani further argued that the provisions contained in proviso below subsection
(4) of section 3 of the Act 1997 were put for the first time in said Act and their absence in the Ordinance, 1997 was conspicuous and this indicated that the Courts set up under the Ordinance, 1997 were powerless to order cash security and, as strh, Ehtesab Bench could not have ordered the appellant on 29-4-1997 to furnish cash security of rupees one crore. On this point learned Attorney- general reiterated his contention, that purpose of the legislationon the subject of Ehtesab was to recover the amount acquired by the concerned accused, through corrupt practices. Learned Attorney-general further argued that the Ordinance, 1997 did not prohibit ordering furnishing of cash security in a bail matter. Terming newly legislated Act, 1997 to be more beneficial to the appellant, learned Attorney-general argued that under the Ordinance, 1997 the Court while admitting an accused to bail was bound to fix the amount of bail not less than twice the amount in respect of which the offence was alleged to have been committed, but such provision did not appear in the Act, 1997.
66. There is force in the contention of learned counsel for the appellant that cash security in case of release of a person on bail, could not have been ordered by the Courts, set up by the Ordinance, 1997. Had it been otherwise, there was no need to incorporate in the Act, 1997 the provisions that the Court may direct that the amount of bail be deposited in Court. Mere fact that the present Act 1997 in some respects is more beneficial to the appellant, cannot make it retrospective in nature. Even if purpose of the Ordinance, 1997 or Act, 1997 is to effect recovery of any amount, such purpose cannot be achieved at the stage of bail. Rather it would be negation of the principles of justice, to presume an accused person to be guilty, and to put him on certain terms, at the stage of bail, which he cannot fulfil.
67. ' Reference by Mr. Samdani to section 499 of Cr.P.C. Is apt. Section 499 of Cr.P.C. Speaks of a bond to be executed by a person, released on bail or on own bond. As provided by section 499, the bond shall contain condition, of the person released, appearing before a Court or a police officer at a suggested place and time. The amount of the bond is to be fixed by a Court or by a police officer, as the case may be. Provisions contained in section 499 of Cr.P.C. Have been considered in a number of decided cases.
68. The question arises, as to, whether a Criminal Court exercising the powers under Chapter XXXIX of the Code of Criminal Procedure, can order any person released on bail, to furnish cash security instead of furnishing solvent sureties, who can execute bonds undertaking to produce the accused at a given time and place before a Court. According to the commentary on section 499 of Cr.P.C.
69. By B.B. Mitra (12th Edition) a condition attached to the bail, which is tantamount to refusing the bail, should never be imposed and a condition to demand a cash deposit for release of an accused on bail, is not contemplated by law.
70. ' Said question, as to, whether a Criminal Court can order, any person released on bail, to furnish cash security in lieu of the bond required to be furnished under section 499 of Cr.P.C., came under consideration in some cases of Indian jurisdiction which have been cited by the learned counsel for the appellant. In the case of Rajballam Singh v. Emperor (45 Criminal Law Journal 340) and (AIR 1943 Patna 375) it was observed as below:-- "Law does not contemplate or authorize a Magistrate to demand a cash deposit as a condition to the release of the accused on bail. The amount of every bond executed should be fixed with due regard to the circumstances of the case and should not be excessive."
71. ' Said case was followed in the case of R.R. Chari v. Emperor (AIR 1948 Allahabad 238) where it was observed as below:-- "The language of section 499, Criminal Procedure Code makes it perfectly clear that what that section contemplates is the furnishing of a personal bond by the accused person and a bond by one or more sufficient sureties. The accused as well as the sureties have, therefore, to execute only bonds which are sufficient in the mind of the Magistrate for the amount which he might have fixed.
72. Section 513 also makes it clear that the Magistrate is not bound to accept cash, but may peimit an accused person to deposit a sum of money in lieu of executing a personal bond and giving surety of some persons. That section, however does not authorise a demand of cash by a Magistrate."
73. ' In the case of Lakhi Narayan Kundu v. Crown (PLD 1955 Dacca 84) the view taken was, as follows:-- "On the language of section 499, Cr.P.C. Read with Form XLII, the Sessions Judges and Magistrates have no power whatever to impose any condition at all when they grant bail. Section 499 does not warrant the imposition of any condition and there is no other section in the Code which has any application in the matter.
74. ' Section 499 contemplates the execution of a bond with sureties and not a cash deposit. A Magistrate 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.
75. ' Section 513, Cr.P.C. 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.
76. ' 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."
77. ' In the case of Rajballam Singh (45 Cr.L.J. 1944 and AIR 1943 Patna 375) it was further observed, that Chapter XXXIX of the Code of Criminal Procedure contemplates the execution of a bond with sureties and form of the bond is prescribed in Schedule V, Form No,42 of the Code.
78. ' According to section 497 of Cr.P.C. a Criminal Court may order release of a person on bail, who is accused of any non-bailable offence, after his arrest or detention or on his production/appearance in Court. The terms and conditions on which a person "may be released on bail" under section 497 of Cr.P.C. Have not been elucidated in said section. Section 498 of Cr.P.C.
79. Empowers the High Court and the Court of Session to direct any person to be admitted to bail or to reduce the bail required from a person by a police officer or a Magistrate. Here again the words "direct that any person be admitted to bail" have not been clarified. Such vacuum appears to have been filled in, by the provisions contained in section 499 of Cr.P.C. Which supplements sections 497 and 498 of Cr.P.C. Section 499 of Cr.P.C. Lays down conditions to he fulfilled before any person is released on bail or is released on his own bond. Such a person is to execute a bond, for such sum of money as may be thought sufficient by the Court or by the police officer, as the case may be.
80. The person being released on bail may be ordered by the Court or by the police officer to furnish one or more sufficient sureties to make sure that he shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed, as per section 499 of Cr.P.C. In the language of sections 49,7, 498 or 499 of Cr.P.C. It has nowhere been suggested expressly or impliedly that a person being released on bail, has to deposit in Court any amount, besides fulfilling the conditions mentioned in section 499 of Cr.P.C. Language of section 499 of Cr.P.C.
81. Dismisses any such construction. Entire emphasis of section 499 of Cr.P.C. Is on execution of a bond by the person being released on hail, and by his one or more sufficient sureties. There is no authority by any superior Court of Pakistan taking different view. The authorities from the Indian jurisdiction cited on behalf of the appellant and discussed above, abhor demand of cash as security for release of an accused person on bail. Although said authorities are not binding on this Court, but they have persuasive force. In absence of any decision by this Court to the contrary, the view taken by the superior Courts of Indian jurisdiction in the cases of Rajballam Singh and R.R.
82. Chari, deserves to be considered. In my humble view the relevant provisions in the Code of Criminal Procedure do not lay down deposit of cash security as an essential condition for release of an accused on bail. The Court defined by clause (0 of section 2 of the Act of 1997 while hearing a hail application, exercises the same powers, which are exercised by a noimal Criminal Court under Chapter XXXIX of the Code of Criminal Procedure. The Act of 1997 makes the Court defined in clause
(f) of section 2 of the Act, to be competent to grant- bail, but it does not provide independent provisions by virtue of which the Court can exercise the powers of bail in lieu of the provisions contained in Chapter XXXIX of the Code of Criminal Procedure. It is, therefore clear that the Court defined in clause (1) of section 2 of the Act 1997 while granting bail to a person accused of any offence punishable under the said Act, is exercising the powers under Chapter d of Code of Criminal Procedure and such a Court cannot direct furnishing of cash security. Point (iii) stands answered accordingly.
83. ' Point No,(iv) has become very easy now, to be answered. The Act, 1997 repealing the Ordinance, 1997 came in force on 31-5-1997. Till then the Ordinance was in force. The Ordinance was holding the field on 29-4-1997 when the appellant was ordered to furnish cash security of rupees one crore for being continued on bail. The Ordinance, 1997 did not allow the Ehtesab Bench to order deposit of cash as security for release of the appellant on bail. The provisions in the Act of 1997 empowering the Court to direct amount of the bail bond, to be deposited in Court, are not retrospective in nature as already discussed. Hence the Ehtesab Bench was not competent on 29-4-1997 to order the appellant to furnish cash security. Point (iv) stands answered accordingly ' It is interesting to note that under the impugned judgment, learned Ehtesab Bench made the following observations:- "Tentatively speaking, we find that the applicant has made out a case for grant of bail."
84. ' The Bench added:-- "So, having granted interim bail we find no circumstance to cancel it."
85. ' After making these observations the Ehtesab Bench changed the amount of bail bond in the following words:-- "As a result of the foregoing discussion, we are inclined to confirm our order dated 2-4-1997.
86. However, we are persuaded to change the amount of bail bond in consonance with the facts of the case noted above. The applicant had secured loan of Rs,30,00,000 (Rupees thirty lacs) from N.D.F.C.
87. As Managing Director of Morga Hotel Ltd., has so far not repaid it and same, so, has swelled to Rs,1,40,00,000 (Rupees One Crore and Forty Lacs) till 1996 as stated by parties; that the applicant also received earnest money from the last vendee; that the project of Tourist Village is still on papers; that the money so involved in this Reference, is almost more than rupees One Crore; that section 3(4) of Ordinance, 1997 postulates that the amount of bail shall be fixed with regard to gravity of charge against such person and where such charge specifies an amount, it shall not be less than twice."
88. ' The reasons given by the Ehtesab Bench for requiring the appellant to furnish cash security of Rupees One Crore, are not appropriate. The appellant, as per the prosecution allegations; had obtained a loan of Rupees three million from the N.D.F.C. Subsequent increase in said amount to any extent, may be a civil wrong for which the appellant may be liable in a Civil Court. But increase in the initial amount of the loan, cannot aggravate the crime, initially said to have been committed by the appellant. This point appears to have been overlooked by. The Ehtesab Bench, which passed the impugned order on 29-4-1997. The Ehtesab Bench did not consider on 29-4-1997 that it had no power under section 499 of Cr.P.C. Or under the Ordinance, 1997 to order the appellant to deposit cash security of Rupees one crore.
89. As already mentioned, the basic concept of bail is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so, as held by the Federal Court of Pakistan in the case of Khushi Muhammad (PLD 1953 FC 170). Such a purpose cannot be achieved by releasing an accused from custody on furnishing of cash security, in the lieu of solvent sureties who can take effort to produce the accused released, at a given date, time and place. It is also to be noted that as per section 499 of Cr.P.C., before release of a person on bail by a Court, a bond of the requisite amount is to be. Executed by one or more sureties conditioned that such person shall attend the Court at the time and place mentioned in the bond. These provisions contained in section 499 of Cr.P.C. Would be rendered nugatory, if the person being released is asked to furnish cash security, in lieu of solvent surety or sureties. There would be no body to ensure attendance of the released person at the appointed place, date and time, if he has been released only on furnishing of cash security. This would be against the letter and spirit of law enshrined in section 499 of Cr.P.C.
90. ' It would be relevant to give below a passage from Encyclopaedia Britannica, reproduced in the case of Moti Ram (AIR 1978 SC 1594):-- "We should suggest that the Magistrate must always bear in mind that monetary bail is not a necessary element of the criminal process and even if risk of monetary loss is a deterrent against fleeing from justice, it is not the only deterrent and there are other factors which are sufficient deterrents against flight. The Magistrate must abandon the antiquated concept under which pre- trial release could be ordered only against monetary bail. That concept is out-dated and experience has shown that it has done more harm than good. The new insight into the subject of pre-trial release which has now been developed in socially advanced countries and particularly the United States should now inform the decisions of the Magistrates in regard to pre-trial release.
91. Every other feasible method of pre-trial release should be exhausted before resorting to bail. The practice which is now being followed in the United States is that the accused should ordinarily be released on order to appear or on his own recognizance unless it is shown that there is substantial risk of non-appearance or there are circumstances justifying imposition of a condition on release....If Magistrate is satisfied after making an enquiry into the condition and background of the accused that the accused has his roots in the community and is not likely to abscond, he can safely release the accused on order to appear or on his own recognizance..."
92. ' It is pertinent to note that the Ehtesab Bench in the impugned judgment took view on the authority of the case of Shujaat Hussain v. State (1995 SCM R 1249) that section 3(3) of the Ordinance is not in conflict with section 497 of Cr.P.C. And that although the former placed some restriction on power of the Ehtesab Bench to grant bail yet the circumstances mentioned in section 497, Cr.P.C. And enunciated by the superior judiciary for grant of post arrest bail can be pressed into service for deciding the applications filed under section 3(3) of the Ordinance.
93. After confirming the order dated 2-4-1997, in such language as reproduced earlier, the Ehtesab Bench proceeded to change the basic terms of the said order dated 2-4-1997. Confirmation of the earlier order dated 2-4-1997, by the Ehtesab Bench shows that it accepted the defence contentions raised before the Bench by Mr. Saleem Sehgal counsel for the appellant. The Ehtesab Bench was convinced that the appellant had made out a case for grant of hail. The Ehtesab Bench found no circumstance to cancel the bail, yet it fell into error by ordering cash security on the ground of so- called rule of accountability embodied in the Ordinance, 1997. The Ehtesab Bench chose to apply the rule of accountability at bail stage, although such a rule if existing, would apply at the time of delivering the final judgment.
94. ' It is a settled position of law that bail cannot be refused by way of punishment. Putting of a harsh condition, like deposit of rupees one crore in Court, amounts to refusal of bail. Intention of the Legislature in enacting the Ordinance, 1997, or the Act, 1997, may be to recover the property acquired by the accused through corruption or corrupt practices, by imposing tine and by seizure of his property, as argued by learned Attorney-general, but it cannot be the intention of the legislature, to put such conditions in the bail order which may amount to refusal of the bail.
95. ' For the foregoing reasons, in my humble view the Ehtesab Bench of the Lahore High Court was not justified in ordering the appellant to furnish cash security. Point No,(v) is answered accordingly.
96. ' Consequently, I am of the view 'that this appeal requires to be accepted and the appellant who has already been granted bail, be called upon to furnish the securities in terms of the Ehtesab Bench Lahore High Court's Order dated 2-4-1997, which was confirmed under the impugned order dated 29-4-1997, passed by the same Bench.
97. (Sd.)
98. ' Mukhtar Ahmad Junejo, J.
99. ' ORDER OF THE COURT ' By majority the appeal is. Dismissed. However, as the time allowed by Ehtesab Bench has elapsed, four weeks' time from the date of the order is allowed to the appellant to deposit the amount in terms of the impugned order.
100. (Sd.)
101. Saiduzzaman Siddiqui, J.
102. (Sd.)
103. Mukhtar Ahmed Junejo, J.
104. (Sd.)
105. Raja Afrasiab Khan, J.