ASAD ULLAH KHAN vs THE STATE
This criminal revision application challenges an order passed by the Special Court (Offences in Respect of Banks) in Karachi, which granted bail to the applicant subject to two conditions: furnishing surety of Rs. 23,00,000 and depositing the alleged misappropriated amount of Rs. 22,89,200. The core legal question was whether the trial court erred in mandating the deposit of the embezzled amount as a condition for bail, particularly in light of amendments to the relevant banking legislation. The applicant argued that previous statutory requirements mandating surety at twice the embezzled amount had been repealed. The High Court observed that Section 5(7) of the Banking Companies (Recovery of Loans, Advances, Finances and Other Credits) Act, 1997 (referred to as the Banking Offences (Offences in Respect of Banks) Ordinance, 1984 in the judgment), now requires the bail amount to be fixed based on the gravity of the charge and not less than the embezzled amount, removing the mandatory 'double' requirement. Consequently, the Court set aside the condition requiring the deposit of the misappropriated sum, modifying the bail order to require a PR bond and surety equivalent to the amount.
- Does Section 5(7) of the Banking Companies (Recovery of Loans, Advances, Finances and Other Credits) Act 1997 require the surety amount for bail to be double the amount allegedly embezzled?
- Is a trial court empowered to mandate the deposit of the alleged misappropriated amount as a condition for granting bail under the Banking Offences (Offences in Respect of Banks) Ordinance 1984?
- Section 406, Pakistan Penal Code 1860
- Section 409, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 5(7), Banking Companies (Recovery of Loans, Advances, Finances and Other Credits) Act 1997
ORDER
1. Through this Criminal Revision Application the applicant, accused in F.I.R. No,8/2009 of Police Station FIA CBC II/Karachi, under sections 406/409/420/34, P.P.C., has assailed the order dated 23- 2-2011 passed by the learned Special Court (Offences in Respect of Banks) Karachi, whereby the applicant has been granted bail but subject to furnishing surety in the sum of Rs,23,00,000-00, and also subject to deposit of Rs,22,89,200-00 being the amount allegedly misappropriated by the co- accused in the court.
2. The learned counsel for the applicant submits that the order for deposit of the amount has perhaps been passed on account of misconception about the relevant law, as though in terms of subsection (7) of section 5 of the Banking Offences (Offences in Respect of Banks) Ordinance, 1984, it was mandatory for the court granting bail to make it conditional to furnishing a surety not less than twice the amount embezzled, however, the word "twice", vide amendment effected through Act XVI of 1997, has been deleted and now it is not necessary that the surety amount should be twice the amount embezzled. He has placed before us the relevant Ordinance and referred to the aforesaid provision, which now reads as follows:-- "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 specifies any amount in respect of which the offence is alleged to have been committed, shall not be less than the said amount."
3. The learned counsel for the applicant submits that in view of the above amendment it is now no more required that the surety amount be double of the embezzled amount.
4. In view of the above, Mr. Ashique Raza, learned D.A.-G. concedes to the request.
5. We therefore, by consent amend the bail order by withdrawing the condition of deposit of Rs,22,89,200-00 required through impugned order and instead the petitioner shall now deposit the amount of Rs,23,00,000-00 with PR Bond in the like amount as surety to the satisfaction of trial Court, which amount may be invested in some profit earning government scheme.