P L D 2010 Karachi 200 (PLP)

Pursuant to the order of this Court dated 30-9-2009 notices were issued to the Attorney-General, Prosecutor-General and Advocate-General to assist this Court on the points formulated in the said order. We have heard the learned counsel for the applicant and all the law officers.

2. Mr. Shahadat Awan, learned Prosecutor-General, Sindh, has contended that the protection against double punishment as envisaged under Article 13 of the Constitution of Islamic Republic of Pakistan, 1973, would not apply to the case in hand as according to him the scope of the said protection would only extend if the offence is same and not otherwise. He submits that if one F.I.R. discloses two different offences then the prosecution can submit two distinct challans before the two different Courts and the Constitutional guarantee as provided under Article 13 of the Constitution or restrictions contained in section 26 of General Clauses Act or section 403, Cr.P.C. would not come in the way. In support of his contentions he has relied upon the case of State v. Anwar Khattak reported in PLD 1990 Federal Shariat Court 62, case of State v. Muhammad Younus Dalia reported in PLD 1998 Karachi 159 and the case of Muhammad Ashraf v. State reported in 1995 SCMR 626.

3. We have gone through the afore-cited judgments and find that the contentions by the learned Prosecutor-General are weighty. There is no bar in law which could restrict the prosecution to submit two challans if one F.I.R. discloses distinct offences.

4. The second issue was whether this Court in exercise of Revisional Jurisdiction under section 435 read with section 439, Cr.P.C. can suspend the bail granted to the accused, who are not party to the proceedings. The learned Prosecutor-General states that power to cancel bail of an accused rests with the Court under section 497(5), Cr.P.C. and this Court can suo motu exercise such powers if a complaint of such a nature is received or otherwise brought to its notice.

5. In the present proceedings the applicant is a co-accused in Crime No.12 of 2009 registered with PS FIA, Crime Circle, Karachi, who after investigation challaned the applicant along with other co-accused before the Presiding Officer, Special Court (Offences in Banks), Karachi and Prevention of Electronic Crimes Ordinance, ("PECO") Tribunal. The Special Court and PECO Tribunal granted bail to co-accused and their surety amount was fixed at Rs.500,000 each. However, in the present case the Special Court granted bail to the applicant in the sum of Rs.5,000,000 for which the applicant filed an application before the trial Court for reduction of surety amount but the same was dismissed, inter alia, on the ground that he being principal accused was not entitled to grant bail on same surety amount as that of other co-accused. Accordingly, the present Criminal Revision Application has been filed, inter alia, on the ground that rule of consistency demands that the applicant shall also be granted bail in the sum as has been ordered by the trial Court in respect of other co-accused.

6. It is contended by the learned Counsel for the applicant that the reason assigned by the learned Special Court for enhancement of the surety amount was hardly a ground for rejecting the application for reduction of surety amount. In this regard, he submits that at appropriate time, the applicant intends to challenge the jurisdiction of the Special Court as according to him the case of the applicant does not fall within the ambit of Offences in Respect of Banks (Special Courts) Ordinance, 1984, and therefore, the Special Court has no jurisdiction to try the case of the applicant and other co-accused. He further submits that half of the amount alleged in the F.I.R. has been paid/returned to the complainant and, therefore, the provision authorizing the trial Court to fix the surety half of the alleged amount against the accused would not apply. On a query from the Bench as to whether the complainant or the State has objected to fixation of the surety amount by the Special Court, we are informed that no such objection has been raised either before the trial Court or even before this Court. In other words, the State concedes to this position that the application of principles of fixation of surety amount is discretion of the Court. Even otherwise, the discretion of the Court to fix surety amount cannot be curtailed, which varies from case to case.

7. We are surprised to note that the Special Court has granted bail to other co-accused in the sum of Rs.500,000 each but has fixed surety amount of Rs.5,000,000 for the present applicant. The purpose of fixing surety is to ensure that the accused appears in Court as and when required but it can never be utilized to defeat the very object of the bail granted by the Court. If an exorbitant surety amount is fixed while granting bail, which the accused cannot furnish, it amounts to refusal of bail. Grant of bail implies transfer of custody of the accused from the Jail to Court and does not mean acquittal of the charge for which he has to face trial. This aspect should not lose sight of the Courts while fixing surety amounts.

8. In the present case, the concept of furnishing surety has been lost sight by the Special Court while fixing the surety amount to the tune of Rs.5,000,000 for the applicant, which, ex facie, is disproportionate to the surety amounts ordered for other co-accused.

9. We are, therefore, clear in our mind that fixation of surety is not merely dependent upon the role of the accused in the crime but also on other factors as well. In the present case, we feel that bail has been granted on' merits but the exorbitant surety amount has been fixed overlooking the surrounding factors, which include fixing of surety amount for the other co-accused. We are, therefore, of the view that such a distinction will not meet the ends of justice and accordingly set aside the impugned order directing the trial Court to accept the surety of the applicant in the sum of Rs.500,000 as has been done in the case of other co-accused.

10. As far as the question of suspension of order of granting bail is concerned, we believe that it is the State who should have objected to. This Court has not suspended the order granting bail on merits but the Court was concerned only to fixation of surety amount. Once the State with open mind and eyes accepts this position, this Court would not intervene. It is always the discretion and satisfaction of the trial Court to fix the amount of surety and such powers having neither been objected to by the State nor the co-accused, who were released on bail are before this Court, we, therefore, recall the orders dated 2-9-2009 of suspension of bail orders. However, it will be open to the State, if aggrieved by the order of granting bail to the applicant or to any other co-accused to approach the Court with appropriate application, which would be decided on its own merits.

11. This Revision Application stands disposed of. R and P be returned forthwith. H.B.T./K-8/K Order accordingly.