1988 PLP 950 (MLD)

This is an application for the grant of post‑arrest bail now treated to be one on behalf of accused Naseer Ahmad only.

2. Charge against accused Naseer Ahmad as narrated by me in my order dated 26‑4‑1988 passed in his application BA. 116/88 for grant of pre‑arrest bail is as follows: "Charge against accused Naseer Ahmad in this case is that at first he arranged to get from Registration Office, R.Y.Khan a duplicate national identity card of Muhammad Saleem Akhtar, Advocate, complainant, with photograph of said Muhammad Saleem Akhtar affixed thereon without any application for issuance of such a duplicate having been filed by the said complainant and thereafter from the said duplicate identity card of the complainant he manoeuvred to get prepared a photostat of the said identity card wherein he got the name of Muhammad Saleem Akhtar changed to Naseer Ahmad, name of his father Din Muhammad altered to Abdul Hamid and the date of birth changed from 1957 to 10‑3‑1964 allowing, however, the address of the complainant Muhammad Saleem Akhtar, the mark of his identification, the number of the identity card as well as photograph of the complainant to remain as it was on the said photostat which he got made and obtained the said loan in the sum of Rs. 8,000 from M C B Shahi Road Branch, R.Y.Khan on the basis of the said fake and interpolated photo copy of the duplicate identity card." I made the following observations in my said order: "Complainant Muhammad Saleem Akhtar, Advocate is present. I have compared his photograph with the photostat of identity card of Naseer Ahmad which had been taken into possession by the police officer from the bank record. The photo on it is clearly of the said complainant. However, the name given is Naseer Ahmad son of Abdul Hameed and signature. also reads as Naseer Ahmad. It shows clearly that on the basis of said misrepresentation, the bank had been induced to do things which would not have been done by it if it had not been misled and deceived. Thus Naseer Ahmad prima facie committed offence a/s 420 P P C .Accused petitioner Naseer Ahmad appears to have also prepared a false document in order to cheat the bank and had committed offence under section 469 P P C and similarly Naseer Ahmad appears to have committed offence under section 471 P P C. Nothing has been argued by the learned counsel for the petitioner which may impinge upon the correctness of the above finding of mine.

3. There appears to be no direct evidence with the police showing that the petitioner committed offence a/s 468 P P C in forging the photostat of the said identity card. There is, however, an extra‑judicial confession made by the accused‑petitioner before a bank officer confessing that he had got all these things done. Even otherwise the facts of the case in hand, namely, the act of the petitioner in laving made an application for grant of agricultural ]oar. and his act m having attached therewith a fake. and forged copy of the duplicate identity card and his further act in having received the said lean on its basis raises a presumption that it was he who had forged the photostat of the duplicate identity card. It also seems to be patent from the facts of the case that the petitioner knew that it was a forged document and had used it knowing to be a forged one. Furthermore, it. appears to be implicit in the facts of the case that by producing the said photocopy of the identity card, he deceived the bank and induced it thereby to sanction the loan which could not have been sanctioned if the true position had been available and this act was likely to result in infliction of a serious financial damage to the bank. He had thus prima facie cheated the bank. There are, therefore, reasonable grounds to believe that the accused‑petitioner Naseer Ahmad is guilty of scheduled offences under sections 4211, 468 and 471 P P C. In sub section (6) of section 5 of Offences in Respect of the Banks (Special Courts) Ordinance, 1984, there is a prohibition against grant of bail to such persons. The accused‑petitioner cannot, therefore, be granted bail in this case.

4. Apart from that, the conduct of the petitioner disentitles him to the grant of bail in this case is appears to have pre‑planned the crime because in the first instance, he got a duplicate of national identity card of Muhammad Saleem Akhtar made from the Registration Office and from that got a photocopy made with interpolations detailed above. That showed in him a resolute mind bent upon committing crime and making a prior plan therefore for the purpose of procuring for himself pecuniary benefit. As held in Muhammad Haleem Chohan, v. The State (1980 P.Cr.L.J. 128) frauds of this nature should be dealt with an iron hand even at bail stage. Addedly the case of accused Naseer Ahmad is not one of an ordinary criminal whose acts involved in the crime his person alone but of a person whose criminal acts perpetrated during the course of commission by him of the fraud with the bank spread their tentacles and took within their clasp an innocent person like Muhammad Saleem Akhtar who had nothing to do with an agricultural loan. The purpose of accused Naseer Ahmad behind his act of changing the name and parentage in the photostat of duplicate national identity) card of Muhammad Saleem Akhtar son of Din Muhammad to Naseer Ahmad son of Abdul Hamid, but letting address and photograph etc. of complainant on the photostat to remain intact appears to be not merely that he may not be traceable but ‑also that the person living on the said address, namely, Muhammad Saleem Akhtar, be charged with the responsibility of paying back the said loan to the bank. The said conduct of him in involving an innocent person is most reprehensible and shows him as a heartless person without any compunction of conscience in him. He, therefore, does not deserve any concession on any account. He cannot, therefore, be granted bail on that ground too.

5. This would have concluded the matter and disposed of the bail application but learned counsel for the petitioner has vociferously argued that the case of the petitioner does not fall within the prohibitory clause of section 497 Cr.P.C. and that normal rule in such cases is to grant bail rather than refuse it and that on that account accused Naseer Ahmad should be granted bail. I have given my serious thought to the point raised by learned counsel but am afraid I cannot accept the same in the circumstances of the present case.

6. For the appreciation of the question raised and implications involved, it is necessary to quote the relevant portions of section 497 Cr.P.C., sub sections (6). (8) of section 5 and the full text of section 12 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984. They read as below: 497, Cr.P.C.: When bail may be taken in case of non‑bailable offence: (1) When any person accused of any non‑bailable offence is arrested or detained without warrant by an officer‑in‑charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years: ......Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence shall be released on bail: Section 5(6) of Ordinance IX of 1984: (6) An accused person shall not be released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he had been guilty of a scheduled offence ..Section 5(8) of Ordinance IX of 1984: 5(8): A Special Court shall, in all matters with respect to which no procedure has been prescribed by this Ordinance, follow the procedure prescribed by the Code for the trial of cases by Magistrates. Section 12 of Ordinance; IX of 1994: 12: Ordinance to override other laws 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.

7. In Ordinance IX of 1984 which governs the proceedings in this Court, there is no specific provision conferring power on this Court to grant bail to a person accused of a scheduled offence and only the prohibition to grant bail in given circumstances has been provided in sub section (6) of section

5. However, sub section (8) of section 5 of the said Ordinance provides that a Special Court shall in all matters with respect to which no procedure has been prescribed by the Ordinance follow the procedure prescribed by the Code for trial of cases by the Magistrates. In Adrian Afzal v. Captain Sher Afzal (P L D 1969 S.C. 187) their Lordships of the Supreme Court of Pakistan referred approvingly to the view taken by Crawford in his book 'Construction of Statutes' to the effect that procedure includes power/jurisdiction over a cause of action granted to a Court. Taking that into consideration, it is clear that section 497 Cr.P.C. which makes provision for conferring power to grant bail on a criminal Court is applicable to proceedings under the said Ordinance. But there is a prohibition enacted in sub section (1) of section 497 Cr.P.C. against grant of bail to accused persons if there are reasonable grounds to believe that he has been guilty of offence punishable~ with death, imprisonment for life or imprisonment for ten years. However, sub section (6) of section 5 of the Ordinance provides that an accused person shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of a scheduled offence (as defined in section 2(d) of the Ordinance). At this stage it may be noted that there is a world of difference between the prohibition contained in sub section (1) of section 497 Cr.P.C. and the prohibition laid down in sub section (6) of section 5 of the Ordinance. In the former, the prohibition is against grant of bail to a person if there are reasonable grounds for believing that he has been guilty of an offence punishable with death, imprisonment for life or ten years but in latter, the prohibition is against grant of bail to a person who is prima facie shown to have committed a scheduled offence even if the said offence is punishable with a meagre sentence of imprisonment for one or two years. Considering the implication of the said prohibition contained in section 5(6) of the Ordinance, a Division Bench of the Lahore High Court, consisting of Mr. Justice Javid Iqbal, learned Chief Justice (as his Lordship then was) and Mr.Justice Ijaz Nisar, held in Crl. Misc. 3135‑B:85 as under: "We are aware that we have the discretion to allow bail in cases of bank fraud, but in our considered opinion only in such cases which are not hit by section 5 (6) of Ordinance IX of 1984." The said observations apply with equal force to this Court. Now section 12 of the Ordinance lays down that the provisions of this Ordinance shall have effect notwithstanding anything contained in the Code which according to section 2(b) of the Ordinance means Code of Criminal Procedure. The effect of operation of section 12 ibid ;s that the prohibition contained in sub section (1) of section 497 Cr.P.C. which is in derogation of the said prohibition contained m sub section (6)' of section 5 of the Ordinance is inapplicable to proceedings in bail applications in cases of scheduled offences exclusively triable by this Court and the prohibition contained in sub‑section (6) of section 5 of the Ordinance is instead applicable. The effect of reading the above findings together is that section 'l97 Cr.P.C. is applicable to proceedings in bail applications filed in this Court except for the prohibition contained in sub section (1) of the said section which, however, stands substituted in that sub section by the prohibition contained in sub section (6) of section 5 of the Ordinance and sub section (1) of section 497 Cr.P.C. so amended applies to proceedings in bail applications in this Court. Now considering the case of petitioner Naseer Ahmad in the light of above findings of law, it is clear that since the case of the accused‑petitioner Naseer Ahmad is covered by the prohibition contained in sub section (6) of section 5 of the Ordinance, he cannot claim bail on the ground that his case does not fall within the ambit of prohibition contained in sub section (1) of section 497 Cr.P.C. Seen in the light of the prohibition contained in subsection (6) of section 5 of the Ordinance, when there is reasonable ground for believing that an accused is guilty of a scheduled offence, the rule now appears to be refuse bail rather than grant it except in a case which falls within the ambit of proviso 1 to sub section (1) of section 497 Cr.P.C in which case the Court may grant bail to a minor, a woman or a sick or infirm person in its discretion. The case of the petitioner does not fall under proviso 1 to sub section (1) of section 497 Cr.P.C. and is fully covered by prohibition contained in sub section (6) of section 5 of the Ordinance and, therefore, he cannot be granted bail. The point canvassed by the learned counsel for the petitioner has, therefore, no force and is accordingly repelled.

9. Learned counsel for Naseer Ahmad has next contended that the petitioner was arrested on 26‑4‑1988 and after having been subjected to interrogation for about a week, he was sent to judicial lock‑up on 4‑5‑1988 and is thus no more required by the investigating agency and no useful purpose is likely to be served by keeping him in the jail and for that reason he should be released on bail.

10. I have considered these submissions of the learned counsel for the petitioner. The validity of the grounds for grant of bail can be judged only in the light of the law under which bail is being claimed. Under sub section (1) of section 497 Cr.P.C. when the case is not punishable with imprisonment for ten years or more, there is vast field of discretion for the Court to grant bail to an accused person and on that account under normal law bail can be granted to an accused person on the above grounds advanced by learned counsel for the petitioner but substitution in sub section (1) of section 497 Cr.P.C. of prohibition contained in sub‑section (6) of section 5 of the Ordinance for the original prohibition contained in the said sub section of the Cr.P.C. has materially altered the situation. It has taken away the discretion of the Court to grant bail except in cases which fall under proviso 1 to sub section (1) of section 497 Cr.P.C. The discretionary field within which this Court can act to grant bail appears to me to have been restricted either to cases in which there is no reasonable ground to believe that the accused is guilty of a scheduled offence or to cases covered by proviso 1 to sub section (1) of section 497 Cr.P.C. The prohibitory field now stands extended so as to embrace within its ambit a scheduled offence punishable with imprisonment for a small period. Where the case of a person accused of a scheduled offence is not covered by 1st proviso to sub section (1) of section 497 Cr.P.C. prohibition against grant of bail appears to be total provided there is reasonable ground to believe that he is guilty of a scheduled offence. Petitioner Naseer Ahmad is accused of scheduled offences. His case does not fall under the said 1st proviso. In the light of law under which this Court is administering criminal justice, accused petitioner Naseer Ahmad cannot be granted bail on the mere ground that he is no more required by the police and has now been sent to the judicial lock‑up and that no useful purpose is likely to be served by keeping him in the judicial lock‑up. The prohibition contained in sub section (6) of section 5 of the Ordinance is uncompromising and does not countenancy grant of bail on ,,such grounds. This point of the learned counsel for the petitioner has also, 'therefore, no substance in it and is accordingly rejected.

11. Learned counsel for the petitioner has next contended that original amount of loan has already been adjusted in the bank and for that reason the petitioner should be released on bail. I am afraid, I cannot accept this contention too. A criminal does not cease to be so simply because he has made restitution. Payment back to the bank of a sum fraudulently obtained by a person from it is at the best fulfilment of civil liability of restitution of the said sum but it does not efface the crime committed by him. Having already committed the crime, the restitution of booty obtained by the petitioner Naseer Ahmad in commission of the said crime did not wipe out the crime committed by him from his person. He continued to remain a criminal in spite of restitution. And the command of law enshrined in sub section (6) of section 5 of the Ordinance is that if there are b reasonable grounds for believing that a person is prima facie guilty of a scheduled offence, he shall not be granted bail. The said command is a command entitled to strict compliance irrespective of the fact that a restitution has been made by an offender. The accused, Naseer Ahmad, has been proved above to be prima facie guilty of scheduled offences. He cannot, therefore, be granted bail on the additional ground that he had paid back to the bank the original amount of loan which he had allegedly obtained from the bank in a fraudulent manner.

12. Learned counsel for the petitioner has also in the end submitted that the F I R had been tiled after about 24 months and for that reason too the petitioner deserves the concession of bail. I had considered this point in Shahzad Mahmood v. The State (1985 P.Cr.L.J. 1968) and had come to the conclusion that this ground was not tenable in bank fraud cases. Nothing has been argued by the learned counsel for the petitioner to pursuade me to come to a contrary conclusion. This point of the learned counsel for the petitioner has also, therefore, no substance in it. For the foregoing reasons, I reject this application of accused‑petitioner Naseer Ahmad for grant of post‑arrest bail. SA./24/Sp.B. Bail refused.