SAIDUZZANIAN SIDDIQUI, J.-- The petitioner seeks reduction in the amount of bail fixed by this Court vide order, dated 17-9-1995 while admitting him to bail in a case pending against him before the Special Court, Karachi under sections 420, 461, 406 and 109, P.P.C., though the above review petition.
2. The learned counsel for the petitioner advanced twofold contentions in support of the review petition. Firstly, this Court while fixing the amount of bail in the case did not take into consideration section 5(7) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (hereinafter to be called as the Ordinance), which provided that the Court while admitting an accused to bail in a bank fraud case will fix the amount of bail not less than twice the amount mentioned in the charge.
According to the learned counsel for the petitioner, the amount allegedly defrauded by the petitioner was mentioned in the charge in the case of Rs. 20 million while the bail amount has been fixed by the Court at Rs. 104 million. The second contention of the petitioner is that the fixation of Rs.
104 million sis the bail amount almost amounted to denial of bail to the petitioner as the amount of bail is not only excessive, but also beyond the means of the petitioner.
3. The learned Deputy Attorney-General on the other hand opposed the review application very vehemently, lt is contended by the learned Deputy Attorney-General that the review petition is misconceived and legally not maintainable as there, is no error apparent on the face of order which could justify Its filing, lt is also contended by the learned Deputy Attorney-General that according to F.I.R., in the case, the bank has suffered a loss of a sum of Rs. 5205 million on account of the fraud of the petitioner and as such the amount of bail fixed by this Court at Rs. 104 million is perfectly legal and justified in the. Circumstances of the case, lt is also contended by the learned Deputy Attorney-General that the amount of bail in the case was fixed by the Court in presence of learned counsel for the petitioner who raised no objection that the bail amount was excessive or beyond the means of the petitioner and as such he cannot legitimately make any grievance now to that effect.
4. I will first take up the legal objection raised by the learned Deputy Attorney-General regarding maintainability of the review petition. The learned Deputy Attorney-General contended that there being no error apparent on the Tace of the order, dated 17-9-1995, the review petition is not maintainable. ln my humble opinion, if an error of law or fact is discovered in an order by reading the order itself without reference to any other material, such an error would fall within the category of an error apparent on the face of the record. Therefore, if the Court while passing the order has failed to notice or take into consideration a statutory provision which if so considered or taken into consideration a statutory provision which if so considered or taken into consideration would have changed the final outcome of the case, the omission would amount to an error apparent on the face of the order, ln the present case, the petitioner has been admitted to bail by this Court in a case which has been registered against him under the Ordinance. Section 5(7) of the Ordinance reads as follows:- "(7) Where an accused person 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.
The above provision clearly lays down that the Court while admitting a person accused of an offence under the Ordinance i to bail will fix the amount of bail after taking into consideration the gravity of charge against him. However, where the charge in the case mentions the amount in respect whereof the offence is allegedly committed, then the Court is required to fix the bail amount not less than twice the said amount. No doubt the above position only mentions the minimum amount of bail to be fixed by the Court where a specific amount is stated in the charge, but in my humble view, the Court will fix the minimum prescribed amount of bail in all such cases unless for reasons to be recorded, the Court reaches the conclusion that a higher amount should be fixed in the circumstances of the case, ln the case before us the charge framed against the petitioner mentioned the amount of Rs. 20 million which the bank was allegedly defrauded.
Therefore, in terms of section 5(7) of the Ordinance, the bail amount should have been fixed at Rs.
40 millions unless the( Court for any special reasons to be recorded was of the view that a greater amount of bail was called for in the circumstances of the case. There is nothing in the order, dated 17-9-1995 to indicate that the Court was conscious of the provision of Section 5(7) ibid while fixing the amount of bail at Rs. 104 million. The learned Deputy Attorney-General defended the order fixing the amount of bail at Rs. 104 million on the ground that the allegation against the petitioner in the F.I.R, was that he allegedly defrauded the bank of the amount of Rs. 52 million, therefore, the bail amount of Rs. 104 million was perfectly legal and justified. Since the charge framed in the case mentioned the specific amount in respect whereof offence was allegedly committed, the bail amount in the ordinary course should have been fixed at Rs.40 million in terms of section 5(7) of the Ordinance, unless the Court for reasons to be recorded was of the view that a higher amount of bail should be fixed in the circumstances of the case. There is nothing in the order, dated 17-9-1995 to indicate that the Court was of the view that tt)e-circumstances of the case justified fixation of bail amount higher than twice the amount mentioned in the charge of the case. I may also mention here that the object of fixing the amount of bail in a case is not to penalise the person facing the trial, but its purpose is only to ensure his attendance and presence during the proceedings of the case. Therefore, the Court while fixing the amount of bail should keep in view the capacity and financial condition of the accused. Fixation of exorbitant amount of bail in a case, therefore, may amount to denial of bail although the Court may find the accused entitled to bail on merits, I, therefore, allow the review petition and reduce the amount of bail to Rs. 40 million keeping in view the provision of section 5(7) of the Ordinance.
(Sd.)
Saiduzzaman Siddique, J.
MUHAMMAD MUNIR KHAN, J.-- I have had the privilege of going through the order of my learned brother Saiduzzaman Siddiqui, J. proposing to reduce amount of bail from Rs. 104 million to Rs. 40 million. with utmost respect, I am unable to agree with it.
2. The facts leading to this Review Petition, the arguments advanced by the learned counsel for the parties of and against the proposition of reducing the amount of bail have been incorporated in the proposed order in detail, so I need not recapitulate the same, lt would, however, be advantageous to reproduce the relevant provisions of the Constitution and law, which are as follows:-
(I) Constitution of Islamic Republic of Pakistan, 1973: Article 188: The Supreme Court have power, subject to the provisions of any Act of Majlis-e-Shoora (Parliament) and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it.
(II) Supreme Court Rules, 1980: Order XXVI, Rule 1: Subject to the law and the practice of the Court, the Court may review its judgment or order in a civil proceeding on grounds similar to those mentioned in Order in Order XLVII, Rule 1 of the Code and in criminal proceeding on the ground of an error apparent on the face of the record.
(III) Offences in Respect of Banks (Special Courts) Ordinance, 1984: Section 5(7): "Where an accused person 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 specific any amount in respect of which the offence is alleged to have been committed, shall not be less than twice the said amount."
3. A plain reading of these provisions will show that the powers of this Court to review its judgment or order are subject tot he rules made by the Supreme Court in this behalf and also the practice of the Supreme Court in Review cases. Rule 1 of Order XXVI of the Supreme Court Rules, 1980 empowers this Court to review order passed by it in criminal proceedings on the ground of error apparent on the face of record and on no other ground. So this Court cannot review its order passed in a criminal case unless there is an error apparent on the face of record. The crucial question for consideration in this petition, therefore, is as to whether order sought to be reviewed suffers from an error apparent on the face of record? Having carefully considered the arguments addressed before us with particular reference to the relevant provisions of law I am of the opinion that it does not. The reasons are as follows:-
(i) Section 5(7) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (hereinafter referred to as the Ordinance) restrains the Court from fixing the amount of bail less than twice the amount specified in the charge in respect of which the offence was alleged to have been committed. Neither this section nor any other law, debars the Court from fixing amount of bail higher than twice the said amount. So, by fixing Rs. 104 millions as amount of bail, this Court had not committed any error in law. The words "error apparent on the face of record" are of great significance. Here it means such an error which is visible to naked eye and not an error to be detected with a microscope. I do not see any error apparent on the face of record in the order sought to be reviewed.
(ii) The word "charge" used in section 5(7) of the Ordinance connotes allegations against the accused and not the "charge-sheet" or "charge" framed under Chapter XIX of the Criminal Procedure Code. The dictionary meaning of the word "charge" as contained in Chambers 20th Century Dictionary are "an accusation (law)". The word "charge" has been used twice in section 5(7) of the Ordinance which will show that the charge means accusation/allegation only and not the charge-sheet prepared under section 221, Cr.P.C, ln the F.I.R, it has clearly been mentioned that the accused had caused wrongful loss of Rs. 52.5 millions to the Bank and correspondingly received wrongful gain for himself through fraud and forgery. Therefore, it can safely be said that Rs. 52.5 millions was the amount specified in the charge in respect of which the offence was alleged to have been committed and not the charge-sheet as has been understood in the proposed order.
(iii) The short order requiring the petitioner to furnish bail bond in the sum of Rs. 104 millions was announced and dictated in open Court in the presence of learned counsel for the petitioner. No objection with regard to the amount of bail was raised at that time. As far recollect, learned counsel for the petitioner had rather stated that the petitioner was* a man of means could furnish bail bond of any amount, lt does not lay with the petitioner now to say that amount of bail was excessive or beyond his means.
(iv) Practice of this Court is not to review its orders/judgments unless there are exceptional grounds and compelling reasons, which do not exist in this case.
(v) The considerations for interference with an order passed by the Court itself in review petition and in appeal from the orders/judgments of lower Court are totally different. The reasons given in the proposed order may be valid for interference in appeal against the order of lower Courts but are certainly not valid for review of its own order.
4. The observations made in the proposed order that the Court while passing order sought to be reviewed had failed to take into consideration statutory provisions of section 5(7) of the Ordinance, which if considered or taken into consideration would have changed the final outcoming of the case, is factually incorrect, in that, this Court while hearing the Bail Petitions was fully aware of the provisions of section 5(7) of the Ordinance and meanings of the word "charge" stated therein.
Fixation of Rs. 104 millions i.e., twice of Rs. 52 millions, allegedly wrongfully gained by the petitioner through fraud and forgery shows that this Court was fully conscious of the provisions of section 5(7) of the Ordinance and had considered the same. The law does not require the Court to record reasons while fixing the bail amount more than twice the amount specified in the charge. So this Court was not obliged to give any reason while fixing higher amount of bail. Since, learned counsel appearing for the petitioner at the time of hearing of bail matter had given the impression that the accused was a man of means and was able to furnish bail bond of any amount and had not raised any objection when Rs. 104 millions were fixed, therefore, there was no reason for the Court at that time to doubt the capacity and financial condition of the accused to furnish the bail bond of Rs. 104 millions. The petitioner has furnished bail bond in the sum of Rs. 104 millions and has been released from the jail as told by Raja Muhammad Bashir, learned Deputy Attorney-General on my query. This circumstance negates the plea that the petitioner was not financially strong enough to furnish bail bond of Rs. 104 millions. As the petitioner has furnished bail bond in the sum of Rs. 104 millions and is no more detained in jail in this case, this petition has become infructuous.
5. For all these reasons, no case for review of the order, dated 17-9-1995 passed in Criminal Petition No. 63 of 1995 is made out. The petition is, therefore, dismissed on merits as well as having become infructuous.
(Sd.)
Muhammad Munir Khan,, ORDER OF THE COURT ln view of the difference of opinion between the learned" Judges, the case is referred to Hon'ble Chief Justice for appointing a Referee Judge or pass any other appropriate order in the case.
(Sd.)
Saiduzzaman Siddique, J (Sd.)
Muhammad Munir Khan, J IRSHAD HASAN KHAN, J.- After hearing the learned AOR for the petitioner and going through the judgments proposed by my learned brothers Saiduzzaman Siddiqui, J. and Muhammad Munir Khan (as he then was), I am in full agreement with the views recorded by my learned brother Saiduzzaman Siddiqui, J., which are based on cogent reasons. Sub-section (7) of section 5 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (Ordinance, IX of 1984) states ^ in unambiguous terms that "where an accused person 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". I, therefore, allow the Review Petition and reduce surety amount from Rs. 104 millions to Rs. 40 millions, in the facts and circumstances of the present case.