SHAUKAT ALI, MANAGER, N.B.P. vs M. ANWAR and others
This petition for cancellation of bail challenges an order passed by the Special Court (Offences in Banks), Punjab, granting bail to respondents in relation to offences including sections 454 and 489-F, Pakistan Penal Code, and section 380, Pakistan Penal Code. The core legal question revolves around the competency of the Special Court to grant bail for non-scheduled offences and the statutory requirement regarding the quantum of surety bonds when an amount is specified in the charge. The Lahore High Court held that the Special Court was only competent to grant bail in respect of scheduled offences such as section 380, Pakistan Penal Code, and lacked jurisdiction to grant bail under sections 454 and 489-F, Pakistan Penal Code. The Court laid down the principle that bail amounts fixed by a Special Court under Ordinance IX of 1984 must not be less than the amount specified in the charge where applicable, and maintained the bail only to the extent of the scheduled offence while enhancing the surety amount to match the misappropriated sum.
- Whether a Special Court under Ordinance IX of 1984 is competent to grant bail for non-scheduled offences?
- Does section 5 of Ordinance IX of 1984 require the bail amount to be not less than the amount specified in the charge?
- Can the High Court enhance the surety amount of bail granted by a Special Court upon finding it contrary to statutory provisions?
- Section 454, Pakistan Penal Code 1860
- Section 489-F, Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
- Section 4, Ordinance IX of 1984
- Section 5, Ordinance IX of 1984
ORDER
' The main contention of learned counsel for the petitioner is that the learned Judge, Special Court (Offences in Banks), Punjab had no jurisdiction to grant bail to respondents 1 and 3 under sections 454 and 489-F, P.P.C. Further submits that the ' misappropriated amount is eighty-three lacs while the learned Judge had allowed bail subject to furnishing bail bond in the sum of rupees five lacs which is against the very spirit of the statute out of which these proceedings arise. In support of his submissions, learned counsel has relied upon 1985 PCr.LJ' 1849, 1986 PCr.LJ 567, 1989 PCr.LJ 613, 1988 MLD 2215, PLD 1997 SC 545 and 2004 PCr.LJ 1612.
2. Mr. Tahir Mahmood Gondal, learned A.A.-G. Supports the submissions made by learned counsel for the petitioner and relies on 1995 SCM R 1249.
3. On the other hand, learned counsel for the respondents 1, and 2 submits that no illegality has been committed by the learned Special Judge while granting bail to the respondents and it is to be seen at the time of trial whether the special Judge was competent to hear the case or not and not at bail stage. He has relied upon 1985 PCr.LJ 2007.
4. We have heard learned counsel for the parties and have gone through the precedents cited by learned counsel from both the sides. For the jufct decision of this case we would like to reproduce here subclause (5) of section 4 and sub-clauses 6 and 7 of section 5 of Ordinance IX of 1984:- "(4) Scheduled offence to be tried by Special Court.-(1)
(6) If, in the course of a trial before a Special Court, the Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled Offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence."
"(5) Procedure of a Special Court.- : (1).~
(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.
(7) Where an accused person is released on bail, the amount of bail shall be fixed having regard to 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 the said amount."
' It has not been disputed by learned counsel for the respondents that Special Judge was competent to grant bail only for offence which is scheduled, that is, section 380, P.P.C. But not under sections 454 and 489-F, P.P.C. A perusal of the order of the learned Judge, dated 20-6-2006 shows that the learned Judge was cognizant of his jurisdiction and had observed that the bail petition of the present respondents shall be considered to the extent of section 380, P.P.C. But it seems that when the surety bonds were filled in, sections 454 and 489-F? P.P.C. Were also mentioned and in routine, the same were accepted by the learned Special Judge.
' After attending to the submissions made by learned counsel for the parties, the learned law officer as also going through the above quoted provisions of law, we are of the considered view that the learned Special Judge was not competent to grant bail to the respondents under sections 454 and 489-F, P.P.C., he was competent only to grant bail under section 380,, P.P.C. Being a scheduled offence, so the order, dated 4-7-2006 to the extent of section 380, P.P.C, is maintained and the amount of surety is enhanced from rupees five lacs to rupees eighty three lacs. Both the respondents shall furnish the fresh bail bonds. In case of their failure to do the needful, they shall be taken into custody.
' So far as offence under sections 454 and 489-F, P.P.C. Is concerned, we grant one week's time to the respondents to move the concerned Court for the grant of bail.
' With above directions and modifications in the impugned order, we dispose of this petition for cancellation of bail.