P L D 2009 Supreme Court 146 (PLP)

IFTIKIIAR MUHAMMAD CHAUDHRY, C.J.

The instant petitions have been filed against the judgments dated 12-8-2008 and 31-10-2008 respectively passed by the Peshawar High Court, Peshawar whereby accused namely Shahid Ullah and Arif were granted concession of bail.

2. Briefly stating facts of the case are that as per F.I.R No.4 dated 2-5-2008 registered under sections 419, 420, 468, 471, P.P.C. a cheque No.0106454 dated 17th. April, 2008 for a sum of Rs.6-00 Millions allegedly issued on behalf of M/s. Kohinoor "Textile Mills Ltd. from their account No.01-200-4120-2 paid in clearing on 28-4-2008, was fake, because no such cheque was issued by the said client in favour of any Jamshed Jan. It is to be noted that the said cheque was collected by Bank of Khyber, Saddar Road, Peshawar through clearing. The Manager, Bank of Khyber was contacted for seeking assistance in order to trace out the culprit and for the recovery of Rs.6-00 Million. Ultimately, on 9th May 2008, accused Jamshed Jan was arrested from the Branch of Bank of Khyber and was found to be the person who had presented the stolen cheque and got it encashed. Accordingly, during the investigation of the case, said accused Jamshed Jan disclosed his actual name as Shahid Ullah and it further revealed that false account was opened with the connivance of one Arif Ali, accused officer of Bank of Khyber. During the process of investigation, Shahid Ullah (Jamshed Jan) made confessional statement. Both the accused prayed for concession of bail. Additional Sessions Judge, Peshawar on 25th June 2008 granted bail to Arif Ali whereas plea of co-accused Shahid Ullah was declind. Against the order of Additional Sessions Judge, the Peshawar High Court, Peshawar vide judgment dated 12th August 2008 refused to cancel bail of Arif Ali and at the same time accepted request of Shahid Ullah. As such instant petitions have been filed.

3. Learned counsel for the petitioner contended that both the accused were not entitled for concession of bail in view of the overwhelming evidence available against them, therefore, orders of learned High Court call for interference.

4. On the other hand learned counsel appearing for both the accused stated that offences charged against them fall within the non-prohibitory clause, therefore, under section 497(2), Cr.P.C. they are entitled for the concession of bail.

5. Mr. Muhammad Rashid Qamar, learned ASC, who appeared on behalf of Arif Ali, stated that he was involved in the commission of offence on account of statement made by the co-accused Shahid Ullah (Jamshed Jan). Besides, there is no other evidence to connect him with the commission of the offence, therefore, learned Additional Sessions Judge has rightly granted bail to him and for this reason, learned High Court declined to cancel the same. As far as, accused Shahid Ullah (Jamshed Jan) is concerned, on his behalf Mr. Muhammad Arif, learned A.S.C. argued that confessional statement made by him was a result of coercion, therefore, the same cannot be given weightage and the High Court has rightly applied the principle that if the co-accused person has been released on hail, the respondent/accused Shahid Ullah (Jamshed Jan) was also entitled to the same treatment.

6. We have heard the learned counsel for the parties and have also gone through the case file accordingly.

7. At this stage, we consider it appropriate to make brief reference in respect of investigation of instant case. It is misfortune aspect of the case that Investigating Officer as well as S.S.P. (investigation) have not shown positive interest in the investigation, as it is evident from the fact that initially request was made for grant of 10 days police remand. The Presiding Officer allowed two days' police remand but thereafter, no 1equest was made for further: remand although in the meantime no recovery of the amount illegally withdrawn by the accused persons was effected. Contrary to it, after two days accused Shahid Ullah was produced for recording of confessional statement, paving a way for him for judicial custody. Similarly, accused Arif Ali, who actually opened the account of Jamshed Jan in Khyber Bank Ltd. Saddar Road, Peshawar, was not interrogated properly and after expiry of two days' Police remand, he was also sent to judicial custody. Be that as it may, instant case has to he decided in view of the available material as well as the legal position.

8. It is to be noted that Arif Ali as a Banker has allegedly committed a crime with the connivance of Shahid Ullah, therefore, they were accused for the commission of scheduled offences under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 [herein after referred to as "the Ordinance, 1984"] falling within the mischief of sections 409, 468 and 471, P.P.C.

9. Learned counsel for the petitioner contended that High Court of Peshawar failed to take into consideration this aspect of the case, which according to him had a serious implication on the facts of the instant case qua the release of the accused on bail, because under the Ordinance, 1984 bail cannot he claimed as a matter of right by an accused in term of section 5(6) read with section 12 of the Ordinance, notwithstanding the fact that the case for grant of bail in terms of section 497(2), Cr.P.C. has been made out. He has placed reliance, in this behalf, upon the case of Chaudry Shujat Hussain v. The state (1995 SCMR 1249). Relevant para therefrom is reproduced herein below:-- "

8. A comparison with section 497, Cr.P.C. will show that there is departure from the said provision. In this regard reference can be made to section 12 of the Ordinance which provides that the provisions of this Ordinance shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force. Therefore, in cases of conflict between the provisions of the Ordinance and the provisions of the Code, the Ordinance will prevail. In Allied Bank's case 1991 SCMR 599, it was observed that "the Ordinance, being a special law conferring special power and jurisdiction on the Special Court and providing a special forum and procedure relating to the trial of scheduled offences, the Code will not affect any provision dealing with such special power, jurisdiction or procedure". It may also be noted that section 5(6) is couched in a negative language. It is well-settled principle of interpretation of statute that where any provision coached in negative language requires as act to he clone in a particular manner then it should be done in the manner as required by the statute otherwise such act will be illegal. In this regard the observations in the Allied Bank's case are relevant and further the learned Deputy Attorney-General has referred to certain passages from Maxwell's, Interpretation of Statute and Craise leading to the same conclusion. At this stage I may clarify that there is misconception which is sometime expressed that if an' act is provided to be done in a manner it should be clone in the particular manner otherwise it will be illegal. This cannot be general rule for applying such provisions of law. There may be cases where directions contained in an enactment are directory and not prohibitory. But where the language used is in negative or mandatory term for performance of particular act, only then it can be said that any act done or an order passed in breach of such negative or mandatory language will be illegal. Any act or order done in breach of affirmative language expressed in directory manner may not lead to the same result but this will entirely depend upon the facts and circumstances of the case and the object and language of the statute." In view of the above dictum, we are of the considered opinion that in the given circumstances of the case, prima facie, accused Arif Ali along with his co-accused Shahid Ullah were involved under sections 409, 468 and 471, P.Y.C. being schedule offences of the Ordinance, 1984. For the purpose of special enactment, the sentences prescribed under these sections of P.P.C. have been modified to the following effect:--

409. Criminal breach of trust by public servant or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

468. Forgery for the purpose of cheating.--Whoever commits forgery, intending that the documents forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine.

471. Using as genuine a forged document.--Whoever fraudulently or dishonestly uses as genuine any document he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Unfortunately, neither the learned High Court nor the additional Sessions Judge had taken note of the above legal position.

10. As far as merits of the case are concerned, learned counsel for the respondents contended that principles for cancellation of bail are different from those of granting bail as it has been held in the case of Muzaffar Iqbal v. Muhammad Imran Aziz (2004 SCMR 231). We have no cavil with the principle of law enunciated in this judgement, but in the case in hand, as observed hereinabove, the accused persons succeeded in getting bail from the forum having no jurisdiction, therefore, the principle laid down in the judgment cited by the learned counsel for the respondents/ accused is not attracted. It is important to note that at the stage of considering plea for the grant of concession of bail, the Court seized of the matter is not required to enter into deeper appreciation of evidence, as it is only to see on the basis of tentative assessment of evidence, whether the accused are prima facie, involved in the commission of offence or not? Reference in this behalf may be made to the case of Ehsan Akbar v. State (2007 SCMR 482) and Raja Muhammad Irshad v. Muhammad Bashir Goraya (2006 SCMR 1292). Material so placed before us is sufficient to, prima facie, hold that their involvement at this stage under sections 409, 468 and 471, P.P.C. cannot be overruled. It is quite important to note That under section 5(7) of the Ordinance, 1984, the accused if at all are released on hail, 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 beet: committed, shall not be less B than the said amount. It is well settled principle of' law that if the order of granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice or if the Court comes to the conclusion that the same is perverse, on the lace of it, or has been passed in violation of the law, then it can be recalled. Reference may be made to the cases of The State v. Khalid Sharif (2006 SCMR 1265) and Nazir Ahmed v. Muhammad Ismail (2004 SCMR 1160). In the instant case, the prosecution has produced convincing evidence to hold that the accused are involved, prima facie, in the commission of offence, where an amount of Rs.60 lacs has been misappropriated by committing the criminal breach of trust by a Banker with the connivance of the co-accused and they also committed forgery for the purpose of cheating etc. Therefore, they were not entitled for grant of bail on furnishing surety bonds, in terms of the provisions of section 5(7) of the Ordinance, 1984. We could have exercised our discretion to uphold the order of bail granted by the learned High Court to the respondents but on having gone through the different aspects of the case, it is concluded that it is not a ease wherein such discretion is to be exercised, against such person, who being a Banker having custodian of public property, dared to cause loss to it with the connivance/assistance of another outsider. Herein above are the reasons of our following short order dictated in the Court:-- "For the reasons to be recorded later, these petitions are converted into appeal and allowed. Concession of bail, granted to the accused namely Shahid Ullah and Arif Ali by the High Court vide impugned judgments dated 12-8 2008 and 31-10-2008 are set aside. Both the accused arc present in the Court are ordered to be taken into custody forthwith.

2. Mr. Giuliani Muhammad S.S.P. (Investigation) Peshawar and Mir Hassan, Chief Investigating Officer, Peshawar are also present in the Court in pursuance of earlier order dated 25-3-2009. Prima facie it seems that the investigation has not been conducted properly, therefore, I.G.P./P.P.O. N.-W.F.P. and Chief Secretary, Government of N.-W.F.P. arc directed to take disciplinary action against both of them and result of the same he informed to this Court within a period of three months by sending a report to the Registrar of this Court.

3. Investigating agency is however, directed to submit the challan against the accused before the Special Court under the provisions of Offences in Respect of Banks (Special Courts) Ordinance, 1984. Order accordingly. M.B.A./M 46/S Appeals allowed.