P L D 1986 Karachi 417 (PLP)

Subsequently this witness Muhammad Nawaz was recalled and Mrs. Salima hasiruddin for Nafeesur Rehman declined to cross‑examine him. However; this witness was cross‑examined on behalf of accused Badarul Hassan and Habibur Rehman. P. W. 3 Kamal Ahmad deposed that at the relevant time he was posted as Ledger Clark in the concerned Branch of the Bank and admitted having posted Exhs. 2/D, D‑.1 and D‑3 in the Ledger of Account No. 3337 and further identified his own initial for the posting of these three exhibits. This witness was examined initially on 28‑12‑1985 and subsequently was cross‑examined on behalf of Badarul Hassan and Habibur Rehman on 23‑1‑1986.. ‑ P. W. 4 is Naseebullah Khan; who has deposed that at the relevant time he was working as a Cashier in the concerned Branch. He admitted having encashed the cheques Exhs. 2/D and 2/D‑1 and to a Court question replied that in May, 1981 when the incident took place be did not know that signatures of two officers were required for payment of cheques containing amount of over Rs. 5,000 but knew it at the time when his deposition Nas recorded. This witness was also made co‑accused by order of the Court and he was taken in custody and remanded to judicial custody. P. W. S is Shahid Hussain Inspector, F.

1. A. He deposed that he presented challan/charge‑sheet Exh. 6/A in the Court and identified his signature thereupon. P. W. 6 is Mrs. Khurseed Maqsood Ali. She deposed that at the relevant time she was Bank Manager in the concerned branch. She has admitted having approved :account of. Muzaff'ar Alam for opening and identified her signature authorising the same. According to her Account was opened in her absence by Habibur Rehman and subsequently when she came back from leave Exh. 2/A was placed before her and she approved it for opening. Subsequently on 13-5‑1981 P W. Muhammad Nawaz, Accountant. reported to her that credit entry of Rs. 47.000, dated 10th May, 1981 in Account No. 3337 did not bear his initial and somebody else had forged the same as such he did not countersign the same for payment of Rs. 17,000 on 13th May, 1981. She conducted internal enquiry and found four bogus credit entries described as below :‑ (1) Rs..13,000, dated 30th. April, 1981. (2) Rs. 27,000, dated 4th May, 1981. (3) Rs. 50,000, dated 6th May, 1981. (4) Rs. 47,000, dated " 10th May, 1981. Total amounts credited came to Rs. 1,37,000 out of which Rs. 90,061 were withdrawn by six cheques Exhs. 2/D to 2/D‑

6. Exh. 2/D was passed by accused .Habibur Rehman and countersigned by lbadatullah Khan. Exh. 2/D‑1. was passed by Habibur, .Rehman and was not countersigned by anyone. The amount in this cheque was Rs. 6,

000. Exh. 2/D‑2 was passed by Habibur Rehman and. was countersigned by Ibadatullah. Exh. 2/D‑3 was passed by Habibur Rehman singly. Exh. 2/D-4 was jointly passed by Muhammad Nawaa and lbadatulfah Khan. Exh. 2/D‑5 was jointly passed by N9ubammad Nawaz and lbadatullah Khan and Exh. 2/D‑6 was singly passed by Habibur Rebman and were paid by Cashiers Nasibullah and Badarul Hassan. She sent a written complaint which was registered as F. I. R. This witness was cross‑examined on behalf of accused persons. P. W. 7 Salimuddin Malik, Inspector, deposed that he had incorporated F. I. R, which he produced as Exh. 8;A. Nafeesur Rehman had taken bail before arrest so he did not arrest any accused but recorded statements of witnesses. He secured documents from the Bank and. Then handed over investigation to Inspector Abdul Hakeem. This witness was also cross‑examined or,_ behalf of accused persons. Prosecution closed its side. In the statements recorded under section 342, Cr. P. C. Nafeesur Rehman denied prosecution allegations and asserted that he did not make any credit entries. He proclaimed innocence and fake implication. Habibur Rehman also denied having anything to do with bogus credit entries. He admitted having passed cheque for Rs. 17,000 on the basis of earlier signature made by Mr. Nawaz. He claimed that similarly other amounts in the cheques were passed for withdrawal by him as the balances in the account in question were duly authenticated on the relevant dates by Mr. Nawaz. He further stated that he opened the account of Muzaffar Alam in accordance with the Bank Rules and there was nothing wrong with his so doing. He further stated that so far cheque for Rs. 17,000 its concerned, which has been encashed by one signature only and he had passed the same and had given to Mr. Nawaz for second signature but Mr. Nawaz did not do so. , It was put to Nafeesur Rehman that he had assisted and abetted co‑, accused Muzaffar in withdrawing a total of Rs. 90,061 from the said bogus credit entries and the same is denied by him. Badarul Hassan also denied having anything to do with bogus credit entries. He further stated that on account of rush of work cheque in question was passed and paid with one signature of passing Officer, which was done through inadvertence. In the defence one witness namely Muhammad Lateef has been examined as D. W.

1. He is Officer from the Principal Office of National Bank of Pakistan. He produced enquiry report contained in two files Exhs. D. W. l/A and D. W. 1/B. He admitted that Nafeesur Rehman was not charge‑sheeted in the domestic enquiry. Mahboob and Shuja were punished and increments of Habibur Rehman were stopped for 2 years and of Badarul Hassan for one year but restored next year. Increment of Naseebullah was stopped and so also of' lbadatullah. Increment of Nafeesur Rehman was not stopped. Shujaullah and Mahboob Ali were dismissed. Trial Court by the impugned judgment has convicted appellants Naseeb ullah and Badarul Hassan and acquitted Nafeesur Rehman and Muhammad Habibur Rebman as stated in the first paragraph or this judgment. Trial Coup has also convicted Muzaffar Alam (Hr absentia). e hay‑ heard Mr Mulzamthad Havat Junejo and Deewan Bashir Ahmad Khan for appellants and Messrs Abdul Sattar pinger and Murtaza Hussain for State in both these appears. Perusal of record of the trial Court shows that initially first charge was framed on 28‑12‑1985 and up to that stage only Nafeesur Rehman was named in the challan as accused and he too was absent on 28‑12‑1985 as such the trial Court framed the charge in his absent and declared that he was to be presumed as having pleaded not guilty to the charge. This action of the trial Court has no warrant of law for the reason that as contemplated under section 242, Cr. P. C. Charge is to be framed and read out to the accused who is mandatorily to be present in the Court. This is to be done for the reason that it is to be ascertained from the accused present in the Court whether he proposed to admit that he had committed offence with which he is charged or not. Presence of the accused at the time of framing of charge in the Court is, therefore, essential and mandatory. Charge cannot be framed and read out in the absence of accused. It appears that the‑ trial Court has taken action as stated above most probably under the cover of section 5(4)(n) of the said Ordi nance, which empowers the trial Court to try accused person in his absence if in the opinion of the Court such absence is deliberate and brought about with a view to impeding the course of justice. This provision would apply to a case, in which the trial Court has already taker cognizance and the charge has been framed and thereafter accused indulges in dilatory tactics. In this context section 5 of the said Ordinance may be perused as a whole which will show clearly that it deals with the procedure to be adopted by the trial Court after cognizance has been taken by it in respect of any scheduled offence Alongwith challan accused is also to be produced by the prosecuting agency without which challan is not complete. For the purpose of taking cognizance challan is to be presented in the Court for proper and judicial order to be passed by the trial Court and accused is also to be produced in the Court alongwith challan. In the instant case, it appears that the challan is dated 25‑2‑1985 and was presented on. 5‑9‑1985. On that day accused Nafeesur Rehman was present on bail as is clearly stated. in Column 3 of the Challan and was available for production in the Court. On that day challan was not presented in the Court but was presented in the Office of Registrar of the Court, who prepared a note for presentation in the Court three days later on 8‑9‑1985. In this note it is stated that Nafeesur Rehntan has been shown on bail in Column 3 of the charge‑sheet but "is not present today". There is nothing in the "record to. show that Nafeesur Rehman who was present eon 5‑9‑1985 at the time of presentation of the challan in the Office of the Registrar was bound down or informed to be present again on 8‑9‑1985, when the Registrar for reasons best known to him chose to present the challan in the court before the Presiding Officer for his orders. Learned trial Judge ordered issuance of notice for 30‑10‑1985 for appearance of Nafeesur Rehman in the Court. Order‑sheet of 30‑10‑1985 shows that A notice was returned unserved‑with remark that Nafeesur Rehman was not residing at the address given in the notice. Trial Court ordered fresh notice to be handed over to Inspector Shahid Hussain Shah and the case was adjourned to 8‑12‑1985 and in the meantime papers relating to the surety furnished before the Special Judge Central, Karachi were also summoned and notice was directed to be sent to the surety to produce the accused on the next date of hearing. Case Diary of 8‑12‑1985 shows that Inspector Shahid Hussain was examined who stated that Nafeesur Rehman had gone underground after obtaining bail and even his bail papers were missing and there was no likelihood of his arrest as such the trial Court ordered that the case shall proceed against Nafeesur Rehman in his absence. Deposition of Shahid Hussain was recorded on 8‑12‑1985, in which he stated that he was given notice for service on Nafeesur Rehman, who was no more residing on the address .given in the notice. Original notice also has been produced to show that it was issued by the Reader of the Court on 5‑I1‑1985 and there is a note on it from Shahid Hussain, Inspector, which is dated 7‑12‑1985. Alongwith this note there is a note from M. A. Zaidi dated 7‑12‑1985 in his handwriting in which it is stated that Nafeesur Rehman was his tenant and left his house in 1982 and thereafter he did not know where Nafeesur Rehman had gone, Under the signature of M. A. Zaidi there is signature of Shahid Hussain, Inspector, F. I. A. Shahid Hussain has claimed in his deposition that he had himself recorded the statement of the landlord but we don't feel satisfied with that statement. ‑ Landlord Zaidi should have been examined but it was not done. No further attempt was made to find out from any source as to where Nafeesur Rehman had gone away for residential purposes after 1982 when the report was made by landlord Zaidi and Mr. Shahid Hussain, Inspector as late as 7‑12‑1985. Shahid Hussain is the same Inspector who has signed the challan and had produced Nafeesur Rehman an bail when challan was brought in the Court on 5‑9‑1985. No attempt was made by this Inspector to enquire from Nafeesur Rehman as to where he lived at that time. If any attempt had been made, fresh residential address from Nafeesur Rehman could have been obtained. It is not understandable why Nafeesur Rehman was not bound down for the date on which the Registrar proposed to present the challan before the learned Presiding Officer. In these circumstances we feel constrained to hold that the order passed by the trial Court directing proceeding of trial against Nafeesur Rehman in his absence and framing of charge against dim in his absence is passed without proper judicial application of mind and has no cover of law. The trial Curt amended the charge on 19‑1‑1986 in which the number of accused persons have been increased from one (Nafeesur Rehman) to five including Muzaffar Alam (shown as absconder). Again for the same reasons as stated above, charge could not be framed against Muzaffar Alam who was not present in the Court and who was not shown as one of the accused in the colum of challan. It appears from the record of the trial Court that for the first time on 28‑12‑1985 learned trial Judge came to suspect implication of Muzaffar Alam after he recorded statement of one prose,:ution witness and saw some documents and ordered issuance of Non‑Bailable Warrants for his arrest and further ordered that the same should be handed over to

1. O for service on the following day. Naturally time was very short so on the following day i e., B 29‑12‑1985 L,O. returned Non‑Bailable Warrants of arrest of Muzaffar Alam and requested for further time. Case was adjourned to 7‑1‑19861 and Non‑Bailable Warrants were again handed over to I. O. On 7‑1‑1986' Salimuddin Malik, Inspector, was examined as Process‑Server and he stated that Muzaffar Alam was not available at the address given in the warrants and it seems that he had given a false address because street with such 'name did not exist in Defence Housing Society. This witness further stated that he was of the opinion that there was no likelihood of appearance of Muzaffar Alam in the Court. On ‑the basis of this statement the learned trial Judge ordered that Muzaffar Alam be proceeded against in. his absence. Witness Salimuddin Malik has also produced original on‑Bailable Warrants which contain address of Muzatfar Alam as resident of A‑13, 9th East, Street Phase 1, Defence Housing Society, Karachi. The witness did not say anything in his deposition as to from where address of Muzaffar Alam as given in Non‑Bailable Warrants was obtained. It is surprising particularly when Muzaffar Alam was not named as an accused to the challan. In any case witness Salimuddin Mali is absolutely silent on this point. Moreover, no further efforts were made to set the correct address from any other source. There is nothing on the record to show or suggest that 9th East Street does not exists in the Defence Housing Society with only one attempt and that too in the manner .as stated above to find out Muzaffar Alam was not enough to warrant conclusion that be had gone underground. We fail to understand why there was such a big rush to hurry up the things which has resulted into miscarriage of justice. Needless to mention again that both appellants, who have been convicted and sentenced by the trial Court were not named in F. I. R. or in challan as accused persons but subsequently during the proceedings in the trial Court were joined as accused persons on suspicion of their involvement in the case. Action of the trial Court in joining these persons in the trial proceedings as co‑accused purports to have been taken under section 351, Cr. P. C. which empowers the Court to detain any person who attends a Criminal Court although not under arrest or upon a summons. for the purpose of enquiry into or trial of any offence of which the Court can take cognizance. Subsection (2) of section 351, Cr. P. C. further provides that when the detention takes place, after trial has commenced, proceedings in respect of such person shall be commenced afresh and the witnesses are to be reheard. Since the trial Court is Special Court constituted under the provisions of Offences in Respect of Banks Ordinance, 1984, it is empowered under section 5 (8 thereof to follow the procedure prescribed by the Court for trial of case by Magistrates, where no such procedure has been prescribed in the said Ordinance. If section 351(A), Cr. P. C. is read very carefully, it would appear beyond doubt that action thereunder is closely connected with and separable from section 190, Cr. P. C. which empowers the Magistrate to take cognizance of offences. In this very context of taking cognizance of offences, section 5(1) of the said Ordinance empowers Special Court set up under that Ordinance to take cognizance of any scheduled offence upon receiving a complaint of the facts which constitute such offence or upon a report in writing of such facts made by any Police Officer. D In the Ordinance, therefore, scope for taking cognizance is specifically provided for the Special Court, hence only this provision is to be acted upon and not section 190, Cr. P. C. Criminal Procedure Code shall apply only where Special law is silent and does not contain specific powers o procedure. Now if comparative study is made of section 190, Cr. P. C. and section 5(1) of the said Ordinance, it will appear that under the former cognizance can be taken by the Magistrate in three different ways. Firstly as provided in subsection (1) (a) upon receiving a complaint of facts which constitute such offence, secondly as provided in (b) upon a report in writing of such facts made by any Police Officer and thirdly as provided in (c) upon information received froth any person other than a Police Officer, or upon his, own knowledge or suspicion that such offence has beets committed. No we turn to section 5 (1) of the said Ordinance which empowers Special Court to take cognizance of any scheduled offence upon receiving a complaint of the facts which constitute such offence or upon a report in writing of such facts made by any Police Officer, powers specifically ,given to Special Court are fully covered by paragraphs (a) and (b) of section 190 (1), Cr. P. C. as stated above and paragraph (c) thereof has been omitted in the said Ordinance, which fact is very obvious on the face of it. The intention of the Legislature is, therefore very clear that on the Special Court the said Ordinance has conferred powers of taking cogizance only in case of a direct complaint and report by Police and the third mode of coginzance covered Icy paragraph (c) of section 190(1), Cr. P. C. relating to taking cogizance upon information e received from any .person other than Police Officer or upon his own knowledge or suspicion that such offence has been committed, which is akin to suo motu powers, has bean purposely omitted. It is, therefore, crystal clear that Special Court under the said Ordinance cannot take cognizance on its own upon information received from any person other than Police Officer or upon its own knowledge or suspicion that such offence has been committed but can take cognizance only when there is a direct complaint or a report from Police, In the instant case the two appellants before us were not named as accused in the challan submitted by the Police, nor there was a direct complaint in respect of them as such the Special Court was not empowered under the law to take action under section 190 (t) (c), Cr. P. C., which is not included in the powers specifically spelt out for taking cognizance in section 5(1) of` the said Ordinance. In this regard as to why Legislature did not confer suo motu powers on Special Judge for taking cognizance as stated above, one reason can be that if sections 190 and 191, Cr. P. C. are read together in conjunction with each other, it would appear that if the Magistrate acting under section 190(1)(c) takes cognizance suo motu, then that person who is so joined as accused in the case on the order bf the Magistrate, has to be informed that he is entitled to have the case tried by another Court. This provision is mandatory in nature and word "shall" has been used. Now since Special Court has been constituted under the Special Law and is the only one Court of its kind and there are no ‑ other such Courts available within that territorial jurisdiction, hence in such circumstances the case could not be transferred to any other Court and that is why, perhaps for that reason, while defining powers of Special Court under section 5 of the said Ordinance for taking cognizance of scheduled offences, Legislature has on purpose omitted suo motu powers for taking cognizance contemplated under section 190(1)(c), Cr. P. C. Perusal of record shows that subsequently charge under section 409/ 477‑A, P. P. C. read with section 109, P. P. C. was framed on 19‑1‑1086 against 5 accused persons namely Nafeesur Rahman, Muhammad Habibur Rahman, .Naseebullah Khan, Badarul Hassan and Muzaffar Alam. Last named was tried in abesentia. It may be mentioned here that section 409, P. P. C. contemplates offence of criminal breach of trust by public servant or by banker, merchant or agent. Section 477‑A, P.P.C. relates to falsifica tion of accounts. From the set of accused persons named above Muzaffar Alain, who was absent is supposed to be account‑holder and is not an employee of the Bank. While the remaining accused persons are employees of the Bank. Nafeesur Rahman is Assistant, Muhammad Habibur Rahman is Officer and the remaining two Naseebullah and Badarul Hassan are both Cashiers. Prosecution examined seven witnesses and out of them P. W. 1 Muhammad Habibur Rehman and P. W. 4 Naseebullah were joined as co accused in the case on the orders of the trial Court. P. W. 2 Muhammad Nawaz is Officer of the Bank and P. W. 3 Kamal Ahmad is Ledger Clerk. P. W. 6 Mst. Khursheed Maqsood Ali is Manager of the Bank, who made complaint. P. W. 5 Shahid Hussain and P. W. 7 Salimuddin Malik are Officers of F.

1. A., who took t in investigation. Evidence produced by prosecution was insufficient and unsatisfactory to prove the charges as stated above and in consequence Nafeesur Rahman and Muhammad Habibur Rahman were acquitted by the same impugned judgment. Evidence was not enough to prove the charge that Muzaffar Alam had opened account and with the help and connivance of Habibur Rehman and Nafeesur Rahman and got in four bogus credit entries amounting to Rs. 1,37,000 and again with tire help and assistance of the two accused as mentioned above withdrew Rs. 90,061 and in the latter part of the ac Naseebullah and Badarul Hassan appellants who are Cashiers in the Bank as well assisted. On the point stated above relevant evidence is furnished by P. W. 3 Kamal Ahmad and P. W. 6 Mrs. Khursheed from the same Bank. Another point considered by the Court was that whether Nafeesur Rahman and or Habibur Rehman falsified ledger of Account No. 3337 belonging to Muzaffar Alam by making four bogus credit entries. On this point the observation of the trial Court is that prosecution has not produced any evidence to establish that either Nafeesur Rahman or Habibur Rehman falsified accounts by making bogus entries. Trial Court has therefore acquitted Nafeesur Rahman and Habibur Rehman of all the charges by giving them benefit of doubt and has convicted and H sentenced the present two appellants for offence under section 403, P.P.C., read with section 109, P. P. C. Section 403, relates to dishonest mis appropriation of property and there is no evidence available on the record that both the appellants who are Cashiers bad misappropriated the money) after the cheques in question were encashed by them and payment was made by them. In the absence of any positive and cogent evidence to connect both these appellants with dishonest misappropriation of money, the learned trial Judge has observed in the impugned judgment that both appellants could not get away from criminal negligence by having paid cheques Exhs. D‑1 and D‑3 when they were cleared with signature of on Officer instead of two Officers because amount mentioned in each cheque was more than Rs. 5,

000. The total in both the cheques came Rs. 23,061 Trial Court has held that this was breach of the rules of the Bank as such in the opinion of the Court both appellants have abetted Muzaffar Alam to withdraw the amounts of the cheques. In the definition of section 403, P. P. C., there is no room for element of criminal negligence for recording conviction of abetment for offence of dishonest misappropriation of property for which positive evidence is required which must be sufficient to establish the charge beyond doubt. Section 109, P. P. C. contemplates offence of abetment and the word abetment is defined therein in the explanation to mean as under:‑ "An act or offence is said to be committed in consequence of abet went, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment." It is, therefore, clear that abetment can be committed only when there is positive evidence of either instigation, or conspiracy or intentional aid. If none of these three elements stated above is available then abetment does not stand proved. In the instant case criminal negligence is not enough unless there is sufficient evidence available for proof of the fact that the appellants either instigated or conspired or intentionally aided dishonest misappropriation of the amounts of cheques mentioned above Exhs. D‑1 and D‑

3. Strict proof of abetment of dishonest misappropriation of money cannot be presumed simply from the fact that the appellants did not act upon instructions issued by the Bank that if amount in the cheque is more than Rs. 5,000 then such cheque must be passed for payment with signatures of two Officers. Such circular was not produced in the trial Court by any witness. During the bearing of appeals Mr. Abdul Sattar Pinger for A.‑G, for State produced before us a photostat copy, which according to him, had to be obtained from the Head Office of the Bank. This relates to summary of the maximum passing powers, daily checking powers, etc. of the various grades of branch officials. There is further chart of classifica tion showing .various powers given to Officers of various grades such as Manager, Accountant and Officers in Grade Ill. At the foot it is men tioned that all payments in excess of Rs. 5,000 cash and Rs: 10,000 transfer shall be passed for payment by two Officers of the. branch in the manner prescribed in para. 10, Chapter II to the B. B. I. In the instant case, it is the case of the prosecution that the two appellants, who are Cashiers had made payment of the two cheque Exhs. D‑1 and D‑3 when they were signed by one Officer instead of two a amount in each cheque was more than Rs. 5,

000. Now first of all these cheques were dealt with by Officers and after they were cleared by them whether with signature of one or two they came in the last resort to the Cashiers for final stage of payment. First action should have been taken against the Officers because it has been made obligatory for them that such cheques should contain signature of twp Officers. It will be appropriate at this stage to refer to the deposition of Mrs. Khursheed Maq,ood Ali, P. W. 6 who was at the relevant time Bank Manager is the concerned Branch. She testified before the trial Court that she had approved opening of account of Muzaffar Alam. She conducted internal enquiry and found that in the account of Muzaffar Alam Rs. 1.37,000 were credited by way of bogus entries and out of (bat account Rs. 90,061 was withdrawn by six cheques Exhs. 211) to 2; D‑

6. Out o' these cheques two are important Exh. D/I which is for Rs. 6,061 and Exh D/3 which is for Rs. 17,

000. Both these cheques were paid when they had signature of one Officer only. Naseebullah made payment in respect of Exh D/1 and Badarul Hassan made payment in respect of Exh. D/3. This witness admitted that she did not name any member of the staff as an accused. About Badarul Hassan she said that she had not lodged an), complaint against him even after the filing of F.

1. R. and she did not consider him as an 'accused and in her opinion he was one of the best workers. She further stated that if a cheque' with amount more than Ra. 5,000 is passed by only one Officer and not two as required then this matter is mutually settled by the Officers. She stated about Naseebullah Khan that he was also honest and hard working. She has further admitted that at the relevant time permanent duty of Naseebullah was as Cashier to receive utility bills but in the absence of other paying Cashiers he was posted on the paying counter. In the defence one witness namely Muhammad Lateef was examined who is Officer posted in the principal office of the Bank. He produced in the Court enquiry report relating to Defence Housing Society in two files.Exhs. DW‑1/A and DW‑1/B. He stated that Nafeesur Rehman was not charge‑sheeted in the domestic enquiry. Mehboob and Sbuja were punished and increments of Habibur Rehman were stopped for two years and of Badarul Hassan for one year but restored next year. Even Naseebullah's increment was stopped and also that of Ibadatullah. Shujaullah and Mahboob Ali were dismissed in this case. In the cross -examination this witness stated that no one was charged in respect of bogus entries. Whatever stated by this witness with regard to domestic enquiry was not challenged by the prosecution as unauthentic. On the basis of this fact that two cheques in question mentioned above were paid by these appellants in spite of the fact that they were signed by one Officer instead of two Officers, one must not jump to the conclusion that they have abetted the offence of dishonest misappropriation of property unless there is positive evidence in proof of that. Prosecution has produced no evidence to show link between the appellants and Muzaffar Alam or any conspiracy between them to misappropriate the money. There is also no evidence to show that appellants intentionally aided Muzaffar Alam. It is not correct to say that Muzaffar Alam is a fictitious person. No sincere and persistent efforts were made to trace him. Non bailable warrants were issued which were returned unexecutant by Inspector Salimuddin Malik after only one attempt was made to serve him on the address in Defence Housing Society. There is nothing on the record to show from where that address of Muzaffar Alam was obtained which was given in the warrants of arrest. We have noticed in the record of this case that the trial Court had released some accused persons on bail on oral request without their being proper applications in writing after obtaining verbal no objection from the prosecutor. Badarul Hassan, Habibur Rehman and Naseebullah were iv arrested and taken in custody on the orders of the trial Court. Order sheet dated 29‑12‑1965 shows that Badarul Hassan. was granted bail in the sum of Rs 2,00,000 with P. R. bond on the oral request. Order sheet of that day further shows that other accused persons requested for `B' Class and they were asked to submit applications in wring in that regard. We don't find any justification for grant of oral bail. We find that Badarul Hassan and other co‑accused were charged for offence under sections 409 and 477‑A, P. P. C. read with section 109, P. P. C. Offence under section 409, is non‑bailable. Section 5(6)(7) of offences in respect of Banks Ordinance. 1984, provides that no accused person shall be released on bail if there appear reasonable grounds for believing that he is guilty of scheduled offence; nor shall an accused person be so released witness the prosecution has been given notice to show cause why he should not be so released. Where an accused person is released on bail, 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 been committed, shall not be less than twice p the said amount. "Shall" used in the provision mentioned above clearly shows that requirements contemplated under section 497, Cr. P. C. are to be followed and further requirement under the Special Law about setting of amount of bail to be double the amount specified in the charge shows that the Court must make an enquiry into the matter. Further, section 10 of the said Ordinance provides that appeal to be heard by two Judges of the High Court but even that Court cannot exercise powers under section 426,[ 491 or 498, Cr. P. C. Section 426, Cr. P. C. relates to the powers of the Appellate Court for grant of bail during the pendency of appeal which has been specifically taken away. This demonstrates intention of the Q Legislature to be strict in the matter of bail in a case to be tried under the provisions of the said Ordinance. In such circumstances grant of bail by the learned trial Judge on oral request does not appear to be consistent with the policy laid down under the Special Law and we cannot put seal of approval on grant of bail by the trial Court on oral request. For the facts and reasons stated above, we set aside the conviction and sentence of appellants and allow the appeals. Appellants be set free if they are not wanted in any other case. M. Y. H. Appeals accepted.