1. ' IFTIKHAR MUHAMMAD CHAUDHARY, ACTG. CJ.--- Abdul Ghaffar Jamali son of Ghulam Haider, is facing trial before the Special Judge, Banking Court, under section 409/420/471/477-A/109, P.P.C.
2. Read with section 5(2), of Act II of 1947. The case was registered vide F.I,R. No,2 of 1997 F.I.A. (C.B.C.) on the complaint of Muhammad Fayyaz Jon Officer Grade1-cum-Manager, National Bank of Pakistan. Late Muhammad Branch, stating therein that the accused, during his posting as Branch Manager, misappropriated huge amount. On the registration of ease, accused was arrested on 3rd September, 1997, and reportedly supplementary ehallsns were submitted at different occasions, however, final challah was submitted on 13th May, 1998. Thereafter, the charge was read over to accused on 13th June, 1998, and presently, the prosecution evidence is being recorded.
3. ' After arrest the applicant made a request for his release on bail on merits, but his request was not acceded to, as such, on completion of one year period in detention, an application for release was filed on behalf of applicant, to claim bail, in terms of third proviso to subsection (1) of section 497, Cr.P.C. Learned trial Judge did not accede to his request and rejected the bail application vide order, dated 17th October, 1998. As such, instant application has been moved.
4. ' Mr. Basharatullah, learned counsel for applicant, contended that the Judge, Banking Court, has misinterpreted the relevant provisions of law, on wrong assumption, that detention of period of one year to enable the accused to claim bail, shall run from the date, when the charge was read over to him. According to him, the Investigation Agency is bound to submit the challah within fifteen days of the registration of case and the detention of accused would be deemed, from the moment, he is taken into custody and as in the instant case, admittedly applicant was detained on 3rd September, 1997 and he is not responsible in any manner, for non-submission of challah nor he can be held responsible for causing delay in disposal of case, therefore, as a matter of right, the applicant is entitled for bail.
5. ' Mr. M.S. Rukhshani, learned Special Prosecutor, opposed the plea of applicant for his release on bail, for the reason that under section 5(6) of the Offences in Respect of Banks (Special Courts)
6. Ordinance, 1984 (hereinafter referred as Ordinance of 1984), an accused charged for the scheduled offence, as a matter of right, is not entitled for the grant of bail, after the expiry of period of one year, if it is proved that delay in disposal of case, has not been occasioned on account of the conduct of accused, in view of third proviso to subsection (1) of section 497, Cr.P.C. According to him, the Ordinance of 1984, is a Special Law, therefore, it is to be construed strictly and beneficial provision of the Code of Criminal Procedure, cannot be made applicable, indirectly, to extend the concession of bail to the applicant, who is involved in defalcation of huge amount, belonging to the Public Exchequer. However, he conceded that for the purpose of calculating the period of detention of accused, it would be, from the date when accused was taken into custody and not from the date, when after submission of challah, the trial has commenced.
7. ' We have heard the parties' counsel and also carefully examined the provisions of section 5(6) of the Ordinance of 1984. For sake of convenience, it is reproduced herein below:-- "5. Procedure of a Special Court.--- (1)
(2) ..............................................
(3) ..............................................
(4) ..............................................
(5) ..............................................
(6) ' An accused person shall not be released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released."
8. ' A careful perusal of the above provisions, shows that it contain in its fold, two important elements i,e, (i) without notice to the prosecution, the accused cannot be released on bail and (ii) the determination by the Special Court or any other Court for the release of applicant on bail, depends upon the consideration; whether reasonably he appears to be involved in a scheduled offence?
9. This provision is corresponding to section 497(1), Cr.P.C. According to which, a person shall not be so released, if there appears reasonable grounds for believing that he has been guilty of an offence, punishable with death or imprisonment for life or imprisonment for ten years. The law- givers instead of specifying separately minimum sentence of the scheduled offences, has barred release of an accused to bail, if reasonably, he has been found guilty of a scheduled offence. As far as the provisos to section 497, Cr.P.C. Are concerned, those would not be applicable, because under section 5(6) of the Ordinance of 1984, no such facility has been extended to the accused involved in white collared offences, pertaining to defalcation, in the Banks etc. At this stage, it may be noted that Honorable Supreme Court in Allied Bank of Pakistan Limited v. Khalid Farooq 1991 SCM R 599, cited at Bar, by Mr. Bashratullah, Advocate, has examined the provisions of section 5(6) of Ordinance of 1984 vis-a-vis. Section 497, Cr.P.C. Wherein it has been held that "therefore, whilst the provisions of first and third provisos to subsection (1) of section 497 of the Code may be treated, as not available to the Special Court or the High Court, such situation would not apply to subsections (2) to (5) of section 497 of the Code, as they do not affect the rule stated in subsection
(6) of section 5 of the Ordinance'. Ultimately in the reported judgment, the Honorable Supreme Court allowed the appeal filed by Allied Bank and set aside the order of High Court, holding that Khalid Farooq (respondent) will continue to remain on bail. However, case was remanded to High Court for fresh disposal, in accordance with law.
10. ' Learned counsel for applicant also relied on the judgment in the case of Chaudhry Shujaat Hussain v. The State 1995 SCM R 1249, but in our opinion with utmost respect, this judgment is not applicable, .Because in this case, the bail was not being claimed under third provisos to subsection
(I) of section 497, Cr.P.C.
11. ' We feel no hesitation in agreeing with Mr. M.S. Rukshani, learned Special Prosecutor, that provisions of section 5(6) of Ordinance of 1984, are of special nature, therefore, same cannot be stretched in a manner to forcibly attract the provisions of section 497(1) including its first and third provisos, because it is to be interpreted in its ordinary and harmonized manner, in order to give full effect to it, for the purpose of achieving the object, for which, the law was promulgated. We would like to mention that had the law-givers an intention to extend the concession of bail to a defalcator, after expiry of a period of one year from his detention, there was no difficulty for them to have incorporated rule of third proviso to section 497, Cr.P.C. In it and since the intention of the Legislature is abundantly clear that no such concession is to be granted to a person, responsible for a scheduled offence. Therefore, indirectly third proviso to section 497, Cr.P.C. Cannot be made applicable to section 5(6) of the Ordinance of 1984. Thus, the accused charged for the scheduled offence is not entitled for grant of bail, if he has remained under detention for one year or more and trial has not been completed and even for the reason that he is not responsible for a, on account of his own conduct.
12. ' For the foregoing reasons, we see no merits in application, which isle accordingly dismissed.