THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No.871 of 2016
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Date Order with Signature(s) of Judge(s)
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Present:
Aqeel Ahmed Abbasi, J.
Abdul Maalik Gaddi, J.
1. For orders on Office Objection at ‘A’
2. For hearing of Misc. No.6099/2016
3. For hearing of Bail Application.
Date of Hearing : 10.10.2016
Date of Order : 10.10.2016
Mr. Muhammad Anwar Tariq Advocate for the Applicant
Mr. Muhammad Aslam Butt, D.A.G.
Inspector Abdul Rauf Shaikh, CBC, FIA.
ORDER
Abdul Maalik Gaddi, J. – Applicant namely Muhammad Ehsan son of Muhammad Ahsan, who has been declined bail on merits upto this Court in case FIR No.30 of 2014 dated 30.05.2014 registered under Sections 409/420/467/468/471/109/34 PPC read with Section 5(2) of P.C.A., 1947 and Section 3/4 of Anti-Money Laundering Act, 2010 at police station FIA, CBC, Karachi, through this bail application, the applicant seeks concession of bail on fresh ground/statutory ground under Section 497(1)(a) Cr.P.C. The learned Judge of Special Court (Offences in Banks) Sindh at Karachi was declined bail to him vide order dated 17.06.2016 on the ground of non-provision of bail on statutory ground under Section 5(6) of Offences in respect of Banks (Special Courts) Ordinance, 1984 and that the Ordinance, 1984 being a special law, the applicant cannot claim bail under Section 497(1)(a) Cr.P.C.
2. Precise allegations against the applicant as per FIR lodged by the complainant Mr. Samiuddin Siddiqui, Metropolitan Commissioner, Karachi Metropolitan Corporation, are that the applicant being Additional Director in KMC had opened various accounts in different banks and misappropriated/embezzled amount comes to Rs.300,86400/-in collusion with co-accused persons from the accounts of KMC and used to transfer in his account and he used to withdraw the said amount from his account for which no plausible explanation has been given by him.
3. Learned counsel for the applicant has contended that the accused was arrested on 25.08.2014 and since then he is continuously behind the bar i.e. for more than two years; that interim charge sheet submitted by Investigating Officer in trial Court on 13.06.2014, whereas, supplementary challan was filed on 17.09.2014, which was accepted. Thereafter, on 31.03.2015, Investigating Officer of the case, filed an application under Section 344 Cr.P.C. for time to submit final challan, which was declined in view of separate order passed by the trial Court on supplementary challan, whereby the supplementary charge sheet filed on 17.09.2014 was treated as final, which was challenged by the FIA before this Court through Criminal Revision Application No.159 of 2015, which is sub-judice before this Court and the proceedings of the trial Court have been stayed vide order dated 28.04.2016; that charge was framed on 02.05.2016 as the order passed by this Court was not communicated to the trial Court. After communication of the order of this Court, learned trial Judge stayed the proceedings of the above crime, as such no witness has been examined so far. In support of his contention, he has relied upon the case diaries of the trial Court, which is available on record. Per learned counsel, the statutory period of one year had already been elapsed while the delay in conclusion of trial has not been caused on the act or omission of the applicant or anybody acting on his behalf; that the learned trial Court while dismissing the bail application of the applicant has erred in law as the relief sought under Section 497(1)(a) Cr.P.C. is a statutory right, mandatory in nature and is not left to the discretion of the Court but is controlled by the statute; that findings of the trial Court are not based on legal premises as under Section 5(6) of Ordinance, 1984, there is no specific bar or prohibition on grant of bail under Section 497 Cr.P.C.; that detention of applicant for an indefinite period in the circumstances, would be unjustified and against the provision of law; that the Code being a general criminal procedural law is not only applicable to Pakistan Penal Code but its application is extended by virtue of Section 5(2) of Cr.P.C. to all special laws and where the special statute is silent on a point, the provision of the Code, can be pressed into service; that the preamble of the ordinance provides for speedy trial of offences committed in respect of banks, therefore, applicant is entitled to be released on bail on statutory ground. In support of his contention, learned counsel has relied upon the following case laws:-
(i) Faqir Muhammad and others v. Muhammad Akram Khan, through Legal Heirs and others reported as 1992 SCMR 2192;
(ii) Chaudhry Shujat Hussain v. The State reported as 1995 SCMR 1249.
4. Conversely, learned DAG has supported the impugned order and opposed this bail application on the ground that the provisos to Section 497 Cr.P.C. are not applicable to matters concerning bail under Section 5(6) of the Offences in respect of Banks (Special Courts) Ordinance, 1984. According to him, no such facility has been extended by legislature to the accused involved in white collared offences pertaining to defalcation in Banks etc. He further submits that the applicant is also involved in two other FIRs of similar nature, which shows that the applicant is habitual offender as such, he is not entitled for concession of bail. In support of his arguments, he has relied upon the case of Abdul Ghaffar Jamali v. The State reported as 1999 P.Cr.L.J. 1482.
5. We have heard the learned counsel for the parties at a considerable length and have perused the record.
6. Before to dilate upon the case of the applicant to be a fit case for bail on statutory ground of delay in conclusion of trial within the stipulated period, we would like to first meet the question as to whether provisos to Section 497(1) Cr.P.C. can be pressed into service, when the special law, is silent on the subject qua release of an accused under Section 5 of the Offences in respect of Banks (Special Courts) Ordinance, 1984 deals with the procedure of a Special Courts. It regulates the manner of taking cognizance of any schedule offence, adjournment of a case during the trial, recalled and rehearing of the case and recording of evidence in absence of the accused. Sub-section (6) of Section 5 of the Ordinance pertains to release of accused on bail, which is reproduced as follows:-
“5(6). An accused person shall not be released on bail by a Special Court or by any other Court, if there appears reasonable ground 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.”
Sub-section (8) of Section 5 of the Ordinance, 1984 lays down that “a Special Court shall, in all matters with respect to which no procedure has been prescribed by this ordinance, follow the procedure prescribed by the Code for trial of the cases by Magistrates.”
7. Perusal of Section 5(6) of the Ordinance, 1984 indicates that it does not place an absolute bar on allowing bail to accused charged with a scheduled offence under the Ordinance. It is now a well settled principle of law that grant of bail to an accused is a rule, if made out a case for bail and the same is not to be withheld by way of punishment. Section 5(6) of the Ordinance provides for allowing bail to accused by a Special Court. This is an enabling section. This section or any other provision of the Ordinance does not indicate that the powers of a Court have been taken away to grant bail to an accused under Section 497 Cr.P.C. A Special Court can allow bail to an accused charged with a scheduled offence even if there are reasonable grounds to believe that he is guilty of the charge offence, inter alia on the grounds of a sickness, infirmity or delay in completion of the trial, if it is found to be a case of further inquiry, if there is no likelihood of tempering with the evidence by the accused or that the continued detention of the accused may hamper his defense. Offences in respect of Banks (Special Courts) Ordinance has been promulgated in 1984. Section 5(6) and (7) of the Ordinance regulating the grant or refusal of bail is in consonance with Section 497 Cr.P.C. The only difference is that the Ordinance of 1984 place bar on the release of an accused against whom reasonable grounds exists that he has been guilty of a “scheduled offence”, while the Code place bar on the release of an accused, if there appears reasonable grounds or believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, therefore, all other parts, an amendments whenever made to Section 497 Cr.P.C. would be fully applicable to Ordinance, 1984. The words mentioned in Section 5(6) of the Ordinance, 1984 are similar to the words used in Section 21-D of Anti-Terrorism Act, 1997, but even then the Courts are entertaining and granting bail to the accused under the provisions of Section 497 Cr.P.C. Same is the position of Section 5-A of Suppression of Terrorist Activities (Special Courts) Act, 1975 the Hon’ble Supreme Court in the case of The State v. Syed Qaim Ali Shah reported as 1992 SCMR 2192 held that High Court has the power to press into service 497 Cr.P.C. with its provisos during the pendency of trials before the Special Court.
8. We have gone through the case of Chaudhry Shujat Hussain v. The State reported as 1995 SCMR 1249 in which the Hon’ble Supreme Court while considering the applicability of Section 497 Cr.P.C. in case in Offences in respect of Banks (Special Courts) Ordinance, 1984, granted bail to the accused.
9. Similarly, in the case of Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others reported as 2015 SCMR 1092. This case though pertains to Special Court NAB, the Hon’ble Supreme Court in the said case, while granting bail to the accused has held in para 13 of the said Judgment, which reads as under:-
“13. An accused person cannot be left at the mercy of the prosecution to rotten in jail for indefinite period. The inordinate delay in the conclusion of trial of detained prisoners cannot be lightly ignored provided it was not caused due to any act or omission of accused. In the case of The State v. Syed Qaim Ali Shah(1992 SCMR 2192), the accused was facing charges under the Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) where under section 7 thereof grant of bail even in bailable offences was taken out of the discretion of the Court, however, it was held that despite of exclusion clause beneficial provision of section 497 Cr.P.C. can be pressed into service in some genuine and rare cases to provide relief of grant of bail to a highly deserving accused, incarcerated in prison for a longer duration.”
10. Likewise, the Divisional Bench of this Court has also granted bail to an accused under Section 497 Cr.P.C., who was involved under Sections 420/468/471/34 PPC, whose bail had been rejected by the Special Courts (Offences in Banks) Karachi, in the case of Abd-e-Ali Nafar v. State reported as 2004 YLR 254.
11. In the present case, learned trial Judge while dismissing the bail application of the applicant wrongly relied upon the case law as reported in 1991 SCMR 599. In the cited case, accused was convicted by the trial Court and his appeal was pending before High Court, whereby the High Court released him under Section 426 Cr.P.C. by suspending his sentence, whereas, in the present case, neither accused has been convicted nor his trial has been commenced, therefore, above cited case law is distinguishable on the facts of the present case.
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12. Conclusion of above discussion is that Section 5(6) or any other provision of Offences in respect of Banks (Special Courts) Ordinance, 1984 do not oust and leaves intact the power of High Court to grant bail to an accused under Section 497 Cr.P.C.
13. Since the bail has been sought in the instant case only on the ground of delay in conclusion of trial as well as hardship facing by the accused, therefore, question arises here whether under the aforementioned facts and circumstances of the case the accused is entitled for grant of bail on statutory ground as provided under Section 497(1)(a) Cr.P.C.
14. Section 497 Cr.P.C. gives the accused an independent right for grant of bail on the ground of statutory delay in conclusion of trial subject to certain conditions i.e. (i) that the delay in conclusion of trial had occasioned on account of an act or omission on the part of the accused or any person acting on his behalf; (ii) that the accused is previously convicted offender for an offence punishable with death or imprisonment for life; (iii) that in the opinion of the Court, the accused is hardened, desperate or dangerous criminal; and (iv) that the accused is involved in an act of terrorism punishable with death or imprisonment for life. If these conditions are not applicable to the case of an accused, he is entitled for bail as a matter of right and it cannot be denied under the discretionary power of the Court.
15. The right of an accused to an expeditious and fair trial has been enshrined in the Constitution. The object of criminal law is to make accused face trial and not to punish him as under trial prisoner. The intention of law is that a criminal case must be disposed of without unnecessary delay. Preamble of the Offence in respect of Banks (Special Courts) Ordinance, 1984 also provides speedy disposal of the cases. Delay in imparting justice is likely to cause erosion of public confidence in the judicial system on one hand and on the other hand it creates a sense of helplessness and despair and feelings of frustration and miseries. The accused cannot be deprived of the liberty without due process of law; if any delay occurs in trial due to the act of the Court or prosecution, then the liberty of accused cannot be curtailed for the fault on the part of the Court or the prosecution.
16. In the instant case, it is an admitted position that the accused was arrested on 25.08.2014 and since then he is continuously behind the bar i.e. for more than two years; that the supplementary challan was filed on 17.09.2014, which was accepted. Thereafter, on 31.03.2015, Investigating Officer of the case filed an application under Section 344 Cr.P.C. for time to submit final challan, which was declined by the trial Court. However, the said order was challenged by the FIA before this Court through Criminal Revision Application No.159 of 2015, whereby this Court stayed the proceedings of the trial Court. Charge had also been framed but not a single witness had been examined. From the perusal of the first proviso of Section 497(1)(a) Cr.P.C. provides that who being accused of an offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of woman exceeding six months and whose trial for such offence has not been concluded is entitled for bail. Here in this case, more than two (02) years has been elapsed but not a single witness has been examined.
17. As observed above, the accused is behind the bar for the last more than two years. Case diaries of the trial Court available on record indicates that in the instant case, the accused is not in any way responsible for delay in conclusion of trial and neither the accused nor any person acting on his behalf, has been shown to be the cause of delay. On the contrary, it appears from the record that proceedings of the trial Court have been stayed on account of filing criminal revision application by the FIA. When we asked the question from learned DAG whether accused, his counsel or anybody on their behalf, responsible for delay in trial, he replied in negative.It is settled position of law that no person shall suffer for the act of the Court. In this regard, we are supported with the case of Fida Hussain v. The State and others reported as PLD 2002 SC 46. Under the aforementioned circumstances, there is no likelihood that the trial will be concluded in future, hence, it appears that the case of the applicant also comes within the definition of hardship.
18. As far as, the arguments of learned DAG that the applicant is involved in two other FIRs of similar nature, which shows that the applicant is habitual offender as such, he is not entitled for concession of bail.In this regard, it is suffice to say that in case titled, Jafer @ Jaferi v. The State reported as 2012 SCMR 606, it was held that mere registration of cases by itself is not sufficient to declare an accused as a habitual offender, unless it is proved/established that he has been convicted in any of the said cases and that the conviction has been upheld by the Superior Courts.
19. In view of the hereinabove facts and circumstances of the case, we are of the view that the applicant/accused has made out a case for grant of bail on the ground of statutory delay as the applicant is behind the bars for more than two years and the delay before the trial Court cannot be attributed to the applicant or any other person acting on his behalf, therefore, the applicant was admitted to bail on the ground of statutory delay and hardship, subject to furnishing surety in the sum of Rs.25,00,000/- (Rupees Twenty Five Lacs only) to the satisfaction of the Nazir of this Court. Whereas, the undertaking given by the learned counsel for the applicant that applicant will not leave the country during pendency of his trial without permission of the learned Banking Court is also taken on record. Since the bail application of the applicant/accused is allowed, therefore, listed application has become infructuous, the same is dismissed.
20. The above are the reasons for the short order announced by us on 10.10.2016, whereby the instant bail application was allowed in the above terms.
JUDGE
JUDGE
Faizan/