1988 P Cr (PLP)

AJMAL MIAN, J.‑‑This is a bail application under sections 561‑A and 426, Cr.P.C. filed by the present appellant, who has filed the above appeal against the judgment dated 28‑11‑1987 passed by the learned Presiding Officer, Special Court (Offences in Banks), Karachi in Case No.53 of 1986 convicting the appellant under sections 419 and 403, P.P.C. read with section 109, P.P.C. and sentencing him to R.I. for one year and also to pay a fine of Rs.12 lacs, in default of payment whereof to suffer further R.I. for one year and for the offence under section 403, P. P. C. sentencing him to R.I. for six months. The two substantive sentences are directed to run concurrently while the sentence in default of payment of fine will run after the expiration of the substantive sentences. The appellant who was working in the Customs Department was charged by the trial Court as follows: ‑ "That you personally know accused Ashraf Ali s/o Ibrahim and in spite of this you introduced the account which he opened on 23rd June, 85 at Nazimabad Branch of the Allied Bank of Pakistan Karachi as G.H. Pirwani and thus you identified co‑accused Ashraf Ali as G.H. Pirwani and abetted him in commission of the fraud with the Nazimabad Branch of Allied Bank of Pakistan Limited as a result of which he was able to open an Account No.2528 in the name of Mr. G.H. Pirwani in the Nazimabad Branch of the A.B.L. and subsequently encashed a refund cheque of Rs.5,72,689 received by him from the custom in the name of Mr. G . H . Pirwani through the said account and ultimately withdrew the said amount posing himself as Mr. G . H . Pirwani and therefore you have committed an offence a/ss. 419 and 403, P.P.C. read with section 109, P.P.C. for having abetted accused Ashraf Ali in committing fraud on the Nazimabad Branch of A.B.L. and for having committing criminal misappropriation of Rs.5,72,689 within my cognizance."

2. The prosecution in support of the charge examined a number of witnesses and produced a number of documents, on the basis of which the above conviction in the above terms was recorded.

3. The above bail application had come up for hearing before a Division Bench of this Court on 23‑12‑1987 when Mr. Muzaffar Hassan, learned counsel for the appellant had urged that under section 10 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984), hereinafter referred to as the Ordinance, this Court had the power to suspend the sentence and to admit the appellant to bail. In support of the above submission he had referred to leave granting order of the Hon'ble Supreme Court in the case of Muhammad Aslam v. The State reported in 1986 S C M R 263 and the case of Nazar Karim v. The State reported in 1986'P Cr L J 804 decided by the Lahore High Court. In both the above cases the accused were admitted to interim bail. By the above Division Bench, Mr. Kha]id M. Ishaque was requested to assist the Court as Amicus Curiae. The case had come up for hearing on 13‑1‑1988 before us when Mr. Khalid M. Ishaque learned counsel appearing as Amicus Curiae had urged as follows: (i) That since a Division Bench of the erstwhile high Court of Sind and Baluchistan in the case of Mirza Jawad Beg v. e State reported in P L D 1975 Karachi 628 while construing section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as the Act), which was identical to section 10 of the Ordinance, had held that the Division Bench of the High Court had the power to grant bail and as in spite of the above judgment the law‑makers enacted section 10 in identical words, it is to be presumed :hat they were aware of the above judgment and intended to confer jurisdiction on this Court to grant bail under section 10 of the Ordinance. (ii) That even otherwise since this Court has the power to grant final relief, it can also grant interlocutory relief.

4. In order to appreciate the above contentions, it may be advantageous to reproduce hereinbelow section 7 of the Act and section 10 of the Ordinance which read as follows: Section 7 of the Act. "

7. Appeals from sentences imposed by Special Court, etc.‑(1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done; no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court. (2) An appeal under subsection (1) shall be preferred to the High Court within thirty days of the passing of the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court. (3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Court." Section 10 of the Ordinance. "

10. Appeals from sentences passed by Special Court, etc.‑(1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court. (2) An appeal under subsection (1) shall be preferred to the High Court within thirty days of the passing of the sentence and shall be heard and, decided by a Bench of not less than two Judges of the High Court. (3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Court."

5. A comparison of the above‑quoted two sections of the Act and the Ordinance indicates that they are couched in identical words without any variation whatsoever. After having compared the above two relevant provisions, we may now revert back to the case of Mirza Jawad Beg v. The State, ibid in which a Division Bench of the erstwhile High Court of Sind and Baluchistan was seized of the question, whether in terms of the above‑quoted section 7 of the Act, Division Bench which is to hear the appeal, had the power to grant bail and/or to suspend the order. The judgment was delivered by Dorab Patel, J. (as his Lordship then was). It was held that the ouster clause in above section 7 of the Act, namely, "no Court shall have any jurisdiction of any kind in respect of any proceedings of a Special Court" has reference to the ouster of jurisdiction of a High Court under the Criminal Procedure Code or perhaps under the Letters Patent but in the context did not include Division Bench which was to hear the appeal against the judgment of the Special Court. Reference was also made to the history of the legislation on the subject and particularly reference was made to section 26 of the Special Criminal Courts Ordinance 1942 together with its amendment in 1943 and it was pointed out that subsection (1) of section 7 of the Act was copied fros, aforesaid section

26. On the basis of the above reasoning it was held that section 7 of the Act had not taken away the power of the Division Bench to grant bail to an appellant in an appropriate case. Reference was also made to the case of the Commissioner, Khairpur Division and another v. Ali Sher Sarki (P L D 1971 S C 242), in which the Hon'ble Supreme Court held that under the West Pakistan Control of Goondas Ordinance, the Commissioner had the power to grant interlocutory relief, though not expressly provided for on the basis of the maxim "Sui jurisdicti data est, ea quoque concesa‑a‑esse videntur, sine qui bus jurisdicti explicari non potuit." The reference was also made to the case of Sind Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. (P L D 1975 S C 32) in which the above principle was reiterated and it was held that an appellate authority had the implied power to grant relief which was ancillary or incidental to the appeal during the pendency of the appeal. On the basis of the above two judgments of the above Supreme Court, it was further held that the legislature was presumed to be aware of the judgments of the Superior Courts and as the law declared by the Supreme Court was very clear and if the legislature had intended to take away the ancillary or implied power of the Division Bench, it would have made an express provision in this respect for the reason that the above power was different from and in addition to that under the Criminal Procedure Code. Mr. Khalid M. Ishaque to enforce his above submission has referred to the case of Shamroz Khan and another v. Muhammad Amin and others reported in P L D 1978 S C 89, in which the Hon'ble Supreme Court while declining leave against the judgment of the Peshawar High Court inter alia, observed that when a Legislature uses in a Statute a legal term which has received a judicial inter pretation, it is to be presumed that the term has been used in the 1 sense in which it has been judicially interpreted, unless a contrary intention appears from the Statute. He has also referred to the aforesaid two cases relied upon by Mr. Muzaffar Hassan, namely, (i) Muhammad Aslam v. The State, in which the Hon'ble Supreme Court while granting leave to consider true interpretation of section 10 (ii) .Nazar Karim v. The State. In the above case Ghulam Mujaddid Mirza, J. (as his Lordship then was), of the Lahore High Court, during the pendency of an appeal filed by a convict under the provisions of the Ordinance read with the Prevention of Corruption Act, 1947 admitted the applicant to bail. It may be pointed out that in the body of the order reference has been made to the word "we" and "us" while dealing with the case which gives the impression that the judgment is of a Division Bench but in the title the name of Ghulam Mujaddid Mirza, J. has only been mentioned. The cases relied upon by Mr. Khalid M. Ishaque, particularly the case of Mirza Jawad Beg (P L D 1975 Karachi 628) supports his contention. The reference may also be made to the following cases: (i) Ch. Zahur Ilahi, M.N.A. v. The State P L D 1977 S C 273, in which the majority view was that even in a case triable by the Special Court for offences under the Defence of Pakistan Rules and Sections 124‑A and 153‑A, P.P.C., the High Court can invoke the provisions of Sections 497 and 498, Cr.P.C. and can grant bail as the above provisions are supplementary. (ii) Abdul Majid v. The Judge, Special Court (Offences in Banks), Lahore and another 1985 P Cr. L J 890, wherein a Division Bench of the Lahore High Court while construing Section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, held that the provision of Section 497, Cr.P.C. was applicable to the case pending before the Special Court and the bail can be granted to a person accused of offences mentioned in schedule under the Ordinance. (iii) Muhammad Yaqub Ali v. The State P L D 1985 Lahore

48. In the above case a Division Bench of Lahore High Court, comprising of Ghulam Mujaddid Mirza (as he then was) and Qurban Sadiq Ikram, JJ. reiterated the above Lahore view, namely, that section 497, Cr.P.C. can be invoked even in respect of scheduled Offences triable under the aforesaid offences in respect of Banks (Special Courts) Ordinance, 1984. (iv) Muhammad Moosa v. The State 1986 P Cr L J

578. In the above case a Division Bench of this Court comprising of Abdul Qadeer Chaudhry (as he then was) and Mamoon Kazi, JJ. held in relation to the scheduled offences under the aforesaid offences in respect of Banks (Special Courts) Ordinance, 1984 that section 498, Cr.P.C. can be pressed into service by the High Court during the pendency of a case before the Special Court. (v) Gul Muhammad and 2 others v. The State 1987 P Cr L J

737. In the above case a Division Bench of this Court comprising of Nasir Aslam Zahid and Ally Madad Shah, JJ. while dealing with a case triable under the Suppression of Terrorist Activities (Special Courts) Act, 1975 held that the benefit of provisos III and IV of section 497, Cr.P.C. was available to the accused."

6. It seems that the trend of the cases has been not to lean in favour of ouster of jurisdiction in case of grant of bail or extending benefit to an accused person of certain beneficial provisions of the relevant law. However, at the same time it has also been consistently held by the superior Courts that where the ouster of jurisdiction of the Court is in clear and unambiguous terms the Court cannot confer jurisdiction upon itself which has been ousted by the Legislature. The language employed in subsection (1) of Section 10 of the Ordinance as pointed out by Dorab Patel, J. while construing subsection (1) of section 7 of the Act which is identical, seems to be ambiguous. One view can be, which found favour with Dorab Patel, J. namely, that the expression "no Court shall have authority to revise such sentence or transfer any case from a Special court or make any order under section 426 or section 491 or section 498 of the Code" used in subsection (1) of section 10 of the Ordinance, ousts the jurisdiction of the Courts including High Court in respect of the power contained in the above sections of the Code but it does not oust the jurisdiction of the Bench which is competent to hear the appeal. The other view can be that the above expression expressly excludes the power of the High Court including of the Bench which will hear the appeal to grant bail or to pass any order.

7. We are inclined to hold that the Division Bench may not bet competent to admit an appellant to bail under section 426, Cr.P.C. but it is competent to pass an interim order during the pendency or the appeal in a fit case on the principles enunciated in the above Supreme Court cases namely, The Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki (P L D 1971 S C 242 and the case of Sind Employees' Social Security Institution and another, v. Adamjee Cotton Mills Ltd. (P L D 1975 S C 32). However, we are also of the view that in view of the language employed in subsection (1) of section 10 of the Ordinance, the interim order cannot be passed either for suspension of the sentence or for C grant of an interim bail as a matter of course but a very exceptional case is to be made out. We may point out that the cases under the Ordinance cannot be equated with the cases under the Pakistan Penal Code for bail matter. The object of the Ordinance seems to be to eliminate the commission of fraud in respect of the Banks' money, which generally in fact belong to the account‑holders and, therefore, inter alia it has been provided in Section 6(3) of the Ordinance that the fine amount to be imposed alongwith the substantive sentence should not be less than twice of the specified amount, in respect of which the offence has been committed. In the instant case the Special Court found that the fraud was committed in respect of Rs.5,72,689 and, therefore, the fine amount imposed is Rs.12 lacs. If we were to admit the appellant to bail against the surety bond amount, say of Rs.50,000 or of Rs.1,00,000 the appellant might abscond but if we were to fix the amount of bail bond equivalent to the above amounted of fine, namely, Rs.12 lacs it may amount to denial of bail. We may also observe that a distinction is to be drawn while dealing with a bail application between a case when a matter is pending before the Special Court for trial and when it is pending in an appeal against the conviction. The above distinction is evident from the language employed by above subsection (1) of section 10 of the Ordinance. We may also point out that even in bailable offences after conviction a convict cannot claim bail as of right during the pendency of the appeal. In this behalf, reference may be made to the case of Abdul Karim and others v. The State and another reported in 1969 SCMR 312, in which Hamoodur Rehman, C.J. sitting with M.R. Khan, J., while declining leave against the order of the erstwhile High, Court of West Pakistan, Lahore refusing to grant bail after conviction for a bailable offence, held that there can be no such general rule that in every case where a person is convicted of a bailable offence he must be enlarged on bail during the pendency of the appeal and that Section 426, Cr.P.C. clearly gives a discretion to the High Court to grant or refuse bail although this discretion must, like all other discretions, to be exercised upon sound judicial principles.

8. Reverting to the merits of the above case, we may observe that Mr. Muzaffar Hassan, learned counsel for the appellant has adopted) the above arguments of Mr. Khalid M. Ishaque, whereas Mr. Abdul Khair learned counsel for the respondent has submitted that in view of the language used in section 10 of the Ordinance, the appellant is not entitled to bail. However, he had not cited any case contrary to the case‑law relied upon by Mr. Khalid M. Ishaque. Mr. Muzaffar Hassan has submitted that factually the appellant could not have been tried for the alleged offence under the Ordinance as he was not an employee of the Bank but was an outsider and that his part was only to introduce the co‑accused Ashraf Ali to the bank for opening the account. Without expressing ourselves definitely on the above point, we may observed that the above argument has not impressed us. It` is evident from the charge, reproduced hereinabove that co‑accused) Ashraf Ali was introduced by the appellant as Mr. G. H . Pirwani toll M/s. Allied Bank of Pakistan Ltd. Nazimabad Branch and because of that fraud of Rs.5,72,689 was committed. According to the finding of the learned Special Court, the appellant had known Ashraf Ali as Ashraf Mi but in spite of that he introduced him as Mr. G.H. Pirwani to abet the commission of the fraud.

9. We are, therefore, of the view that it is not a fit case in which interim order is to be passed, during the pendency of the above appeal. The application is, therefore, declined. M.B.A./Z‑42/K Application dismissed.