SHAHZAD ABID Versus THE STATE

ORDER

1. MUHAMMAD ROSHAN ESSANI, J .‑‑‑ The facts leading to present application for bail are that the applicant/accused is facing trial before the Special Court (Offences in Banks) Sindh at Karachi. The case arose out of F.I.R. No.32 of 2000 of Police Station F.I.A. C.B.C., Karachi under sections 409, 420, 468, 408 and 471, P.P.C.

2. The brief facts of prosecution as disclosed in the F.I.R. dated 28‑8‑2000 lodged by Mr. Farrukh Sami, Chief Manager, Bank Alflah Limited, Karachi are reproduced hereinbelow in extenso:‑‑

3. "Case F.I.R. No.335 of 2000 dated 28‑8‑2000 under sections 420/468/408/471, P.P.C. lodged at Police Station Kharadar, Karachi on the basis of written complaint of Mr. Farrukh Sami, Chief Manager, Bank Alflah. Ltd., Karachi against accused Shahzad Abid son of Mr. Muhammad Abid Siddiqui, Deputy Manager Accounts, Main Branch Bank Alflah Ltd., Karachi regarding embezzlement of Rs.9.2 (million) approximately. The case under reference has been transferred to this circle alongwith arrested accused by the Honourable Special Court (Offences in Banks) Sindh at Karachi vide order dated 28‑8‑2000 for investigation F.I.R. No.335 of 2000 Police Station Kharadar, Karachi is reproduced in toto:

4. `Received a written complaint from the above complainant for registration of case which reveals as under: The Station House Officer, Kharadar Police Station Karachi, August 27, 2000. Dear Sir, complaint against Mr. Shehzad Abid son of Mr. Muhammad Abid Siddiqui for embezzlement of Rs.9.2 million (approximately). It is submitted as under: (1) That the above named accused is an employee of this bank and serving in the capacity of Deputy Manager, Accounts. Main Branch. Bank Alfalah Limited, Karachi. (2) That in the course of his service the accused created personal accounts and embezzled funds from different accounts of this bank for his personal use and gains with criminal intimidation and in order to cause wrongful loss to the complainant bank. (3) That upon routine daily checking on 25‑8‑2000 few entries were found suspicious in the accounts of the bank and found to be related with the accounts run and managed by the said accused whereupon the bank official conducted a preliminary enquiry. (4) That upon questioning, the accused confessed the offence committed by him and made a voluntarily confessional statement, copy whereof is enclosed herewith. (5) That during the preliminary inquiry and examination of the accused for the said embezzlement of fund the wife of accused namely Mrs. Rashida Rehman accompanied by one strange person approached the bank team and pressurized the bank officials. (6) That till of this complaint bank officials have only succeeded in unearthing the embezzlement, of Rs.9.2 million on the voluntarily pointation of the accused. However the details enquiry to verify other records and entries is still being carried out and there is every likelihood that the amount embezzled will rise. In view of the above facts and circumstances, it is requested that an appropriate F.I.R. be lodged and a criminal case be registered against the accused under relevant provisions of penal laws. Yours faithfully (Sd.) Farrukh Sami, Chief Manager.

5. Police action . I, S.‑I. Raja Hassan Akhter hereby certify that written complaint has been copies word. From contents of the complaint offence under sections 420/468/408/471, P.P.C. has been made out, I, Sub‑Inspector, Raja Hassan Akhter will investigate the case. Copies of F.I.R. are being sent to superior accordingly. (Sd.) (Raja Hassan Akhter, S.‑I.).

6. This case is accordingly registered under the orders dated 28‑8‑2000 passed by the Honourable Special Court (Offences in Banks), Karachi against accused Shahzad Abid son of Mr. Muhammad Abid Siddiqui, Deputy Manager of Bank Alfalah. Karachi for the offences punishable under sections 420/468/408/471, P. P. C. Investigation taken up by the undersigned.

7. (Sd.) Mashooq Hussain Shah,

8. S.‑I./F.I.A./C.B.C./Karachi.

9. No.FIA/CBCIK/FIR‑32/2000/6608‑15, dated 29‑8‑2000

10. Copy forwarded to:

(1) The Honourable Special Court (Offences in Banks), Karachi.

(2) The Director, F.I.A./ECW/HQrs., Islamabad.

(3) The Director, F.I.A./HQrs, Islamabad.

(4) The Assistant Director Tech./CCRO HQ, Islamabad.

(5) The Assistant Director (Legal) FIA/CBC, Karachi.

(6) The Reader, F.I./CBC. Karachi.

(7) The Furrukh Sami, Chief Manager, Bank Alfalah, B.A. Building I.I. Chundrigar Road, Karachi (complainant).

(8) The Investigating Officer.

11. (Sd.) Deputy Director."

12. After usual investigation applicant/accused was sent up to stand trial. The applicant/accused applied for bail before the trial Court on the ground of statutory delay but his bail plea was dismissed by impugned order dated 8th December, 2001 on the ground that provisos (3) and (4) to section 497, Cr.P.C. have been omitted by an Ordinance.

13. We have heard Mr. Shaukat Hayat learned counsel appearing on behalf of applicant/accused and Mr. Khursheed A. Hashmi learned Dy.A.‑G. appearing on behalf of the State. The latter conceded to the grant of bail to the applicant/accused.

14. There is no cavil that by Ordinance No. 1IV of 2001, provisos (3) and (4) to section 497, Cr.P.C. and subsection (1‑A) of section 426, Cr.P.C. have been omitted. The point in issue is whether the amendments in the Ordinance can operate retrospectively or prospectively. It will be pertinent to reproduce hereinbelow the Ordinance No. 1IV of 2001 in extenso:‑

15. "Further to amend the Code of Criminal Procedure, 1898

16. Whereas it is expedient further to amend the Code of Criminal Procedure, 1898 (Act V of 1898) for the purpose hereinafter appearing.

17. And where-after the National Assembly and the Senate stand suspended in pursuance of the Proclamation of Emergency of the Fourteenth day of October, 1999 and the Provisional Constitution Order No. 1 of 1999.

18. And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action.

19. Now, therefore, in pursuance of the Proclamation of Emergency of the Fourteenth day of October, 1999 and the Provisional Constitution Order No.1 of 1999 read with the Provisional Constitution (Amendment) Order No.9 of 1999 and in exercise of all powers enabling him in that behalf the President of the Islamic Republic of Pakistan is pleased to make and promulgate the following Ordinance:‑‑

1. Short title and commencement .‑‑‑ (1) This Ordinance may be called the Code of Criminal Procedure (Amendment) Ordinance, 2001.

(2) It shall come into force at once.

2. Amendment of section 497 Act V of 1898 .‑‑‑ In the Code of Criminal Procedure 1898 (Act V of 1898), hereinafter referred to as the said Code in section 497 in subsection (1)‑‑‑

(a) in the second proviso for the colon at the end a full‑stop shall be substituted; and

(b) third and fourth provisos shall be omitted.

3. Amendment of section 426 Act V of 1898 . ‑‑‑ In the said Code in section 426. Subsection (l A) shall be omitted."

20. From the plain reading of Ordinance LIV of 2001 reproduced hereinabove it is crystal clear that the same is silent with regard to retrospective applicability.

21. In the case of Asif Ali Zardari v. The State reported in 1993. PCr.LJ 781 a Full Bench of this Court held as under:‑‑

22. "It is well‑settled that if the law is altered during the pendency of an action, the rights of parties are decided according to the laws as it existed when the action was begun and not the law that existed at the date of the judgment or order. This however, is subject to the exception that the new law shall apply if it is a mere rule of proceedings or if it has been applied retrospectively to pending proceedings. This rule, as stated in Craies on Statute Law, Sixth Edition, p.400 is as follows:‑‑

23. `It is general rule that when the Legislature alters the right of parties by taking away or conferring any right of action, its enactments unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to right of action.'

24. Reverting now to the Ordinance XV of 1992 in the first instance, there is no controversy that the Code of Criminal Procedure is a procedural law so also the Ordinance XV of 1992 which seeks to amend the former. As to whether it is retrospective or not, suffice to state that the expression that it shall come into force at once and that the third and fourth provisions shall be omitted leave no doubt that it operates prospectively. The golden rule of interpretation is that the words of a statute must be given their ordinary and normal meaning. These words speak for themselves and are free from ambiguity and simply because the Ordinance XV of 1992 relates to procedural law, it cannot be said that it would be retrospective in operation. There is nothing to suggest either expressly or by necessary implication that the date of commencement of the Ordinance was earlier than its enactment or the accused's right to apply far bail under third proviso stood altered retrospectively."

25. After the promulgation of Ordinance No. LIV reproduced herein above a Division Bench of this Court in unreported Criminal Bail Applications Nos.506, 672, 686, 696 and 723 of 2001 in identical situation held as under:‑‑

26. "We hold that the Ordinance No. LIV of 2001 is to be applicable prospectively and shall not affect all those cases where applications under section 497, Cr.P.C. or section 426, Cr.P.C. have been filed and were pending disposal at the time when the said Ordinance was promulgated. By virtue of the principle of vested right and legitimate expectancy it would also not affect all those who at the time of promulgation of the notification were behind bars and their case had not been proceeded due to no fault of theirs. Even they would be entitled to the concession of bail which was available under sections 497. Cr.P.C. and 426, Cr.P.C. before the promulgation of the said Ordinance."

27. The upshot of the above discussion is that the amendments made in the Code of Criminal Procedure, 1898 by Ordinance LIV of 2001 relate to the rights of the parties existing at the time of its promulgation. Therefore, it will operate as prospectively and not retrospectively. Thus the reason given by the trial Court for dismissal of the bail application is misconceived and not tenable in law.

28. The perusal of the material placed on record shows that the applicant/accused was arrested on 28th August, 2000 and he is continuously in custody from the date of his arrest. The case diaries of the trial Court filed in support of his bail plea shows that the delay in the conclusion of the trial was not caused due to any act or omission of the applicant/accused or any other person acting on his behalf.

29. In view of the above facts and circumstances of the case, we are of the considered view that the applicant/accused is entitled to bail.

30. Resultantly, the applicant/accused is granted bail in the sum of Rs.10,000,000 (Rupees ten million) in the shape of 2 sureties each in Rs.5,000,000 (Rupees five million) with P.R. Bond in the like amount to the satisfaction of the trial Court. It is further ordered that if applicant/accused possess any passport or valid travelling documents he should deposit the same with the trial Court.

31. Application stands disposed of.

32. H.B.T./S‑263/K Bail granted.