1987 PLP 3346 (MLD)

Sultan Mahmood for Petitioner. Syed Shakir Ali Rizvi for Respondent. Nazir Ahmad Ghazi for the State. This is an application for cancellation of bail granted to the accused on 23-11-1986 by this Court in R.A. No.285/286. The grounds raised in this application and urged at the hearing are that subsequent to the grant of bail, on 27-11-1986 at about 10-30 a.m. the accused respondent appeared in the Shah Alam Gate Branch and threatened the complainant-petitioner Abdur Rahman, Manager and other members of the staff of the said branch, who are witnesses against him of dire consequences if they depose against him during his trial and that the said threat caused lot of fear amongst the staff of the bank. It is also added that the accused is a desperate person and there is a great danger of his. tampering with the prosecution evidence if he is allowed to remain on bail. The next ground taken in the application and also urged at the hearing is that the accused respondent is in possession of one complete blank bank draft and there is every likelihood of his repeating the offence and forging a bank draft and thus embezzling some amount from the bank. The above allegations of the complainant petitioner Abdur Rahman are duly supported by a sworn affidavit filed with the application for cancellation of bail. No counter-affidavit has been filed by the accused although the case was adjourned on number of dates. The learned counsel for the accused respondent, however, admits that it is wholly improbable that the accused should have gone in the Branch and have threatened Manager of the Branch and other members of the staff who could have taken hold of him and handed him over to the police. I, however, see no improbability in the alleged act of the accused in going to the branch and administering threat to the complainant Abdur Rahman and other members of the staff of the branch. Shah Alam Gate Branch is a commercial institution and if the accused had come and threatened the Manager and other prosecution witnesses of the branch, the Manager could not have taken the law into his own hands and tried to take hold of him by himself or alongwith members of the staff of his branch as that would have resulted in clash and unnecessary flutter within the premises of the branch and caused harassment to the customers and culminated in loss of reputation and business of the branch and the Manager could not have risked the same by doing the acts suggested ay the learned counsel for the accused. The best course for him and one which had actually been adopted by him to make a complaint to this court.

4. The learned counsel for the accused respondent further submitted that the complainant Abdur Rahman, Manager of the branch should have approached the police and got a report registered in the police station that the accused had come and threatened him and other members of the staff of the branch who were cited as prosecution witnesses in this case and since he had not done so the said statement of his, even though supported by a sworn affidavit, was liable to be dismissed. I am afraid I cannot accept this contention. The truth of an allegation, even of this nature, does not depend for its veracity upon the filing of a report before police. I have been pointed out no authority showing that it is a rule of law that when prosecution witnesses are threatened, then the said witnesses should, as a matter of necessity, first approach the police who may first investigate the correctness of the matter complained and then approach the Court for the same alongwith a copy of finding of the police. In any way in the prevailing circumstances when one knows the difficulties of having access to the police and getting a report recorded, it become, all the more difficult for ire to accept that it was necessary for th C complainant to have gone to the police station and filed a complain and it is then alone that he could have approached this Court. Th right of approaching the Court directly cannot be allowed to be fettered by any such hard and fast rule. Every one must have free access to the Court. I would, therefore, reject this contention of learned counsel for the accused. In these circumstances, there is nothing impinging upon the correctness of the said allegation by the complainant petitioner in this application, supported as it is by the said affidavit. In my opinion, therefore, the bail of the accused is liable to be cancelled on this sole ground.

5. Apart from the above, the bail of the accused-respondent is liable to be cancelled on the other grounds too. He was granted bail on the ground that he had only made an attempt to withdraw sum of Rs.8,000 by deception and forgery and no actual loss had been sustained by the bank. It was also added in the order that it was also a case of very small amount. It, however, escaped the notice of this Court then that there is a clear prohibition laid down in subsection (6) of section 5 of Offences in Respect of Banks (Special Court) Ordinance, 1984 (IX of 1984) against grant of bail if there are reasonable grounds to believe that the accused had committed scheduled offence. There is a clear distinction between the prohibition against grant of bail contained in subsection (1) of section 497 Cr.P.C. and one contained in subsection (6) of section 5 of Ordinance IX o 1984. In the former the prohibition is against grant of bail to a person who is accused of having committed an offence punishable with death, imprisonment for life or imprisonment for 10 years. In the latter, prohibition against grant of bail extends to a person accused of any scheduled offence even if the said offence is punishable with minor sentence of two years' imprisonment. The law-giver had promulgated the said Ordinance to remedy the chaotic conditions the prevailing in the nationalized banks in which number of employees o the banks and others were engaged in continuous attempts to rob the banks by fraud and forgery. That distinction must therefore be maintained and the law as enacted in the said provision must be indicated and in consequence if there are reasonable grounds is to believe that the accused had committed a scheduled offence, his bail should be refused and if one has already been granted, it should be cancelled. Offence is an offence whether it is for a sum of eight thousand or for eight lacs of rupees, and the man cannot be grantee bail on the sole ground that the money involved in the criminal ac which he had performed was of a minor sum. Furthermore another circumstance which escaped the notice of this Court at the time of grant of bail was that the mere fact that there had been no loss to the Bank is not in the context of subsection (6) of section 5 of the said Ordinance valid ground for grant of bail as the full-fledged attempt which could not succeed due to intervening circumstance of alertness of Manager and staff of the other branch, is an equally good offence and if there are reasonable grounds to believe that accused had committed the offence of attempt to use the forged document as genuine knowing it to be forged and to misappropriate as, a public servant the said sum of Rs.8,000 he could not have been granted bail. It could also not be noted by this Court then that the complete offence under section 467 PPC of forgery of the demand draft had prima facie been committed by the accused-petitioner, the punishment for which was imprisonment for life or imprisonment upto 10 years, for which no bail was permissible even under the prohibition contained in subsection (1) of section 497 Cr.P.C. The accused appears to have shown depravity of character not expected of a public servant who is invested with the performance of duties on so important a seat as the one he was assigned. During a very small period of time namely, a single hour for which he was put on duty on the said seat of Mohy-ud-Din Alamgir he tore out from the draft book two blank drafts bearing Nos. 171694 and 171695 and put them in his pocket and later sent an advice dated 8-6-86 regarding the bank draft 171694 for a sum of Rs.8,000 in the name of one M.Saeed after putting on the said advice the stamps and making forged signature of the Manager thereon. It further appears from recitation of facts in the F.I.R that he himself went to Sialkot, presented the forged draft before the Railway Road Sialkot Branch of MCB but on interrogation by the staff of the said bank he slipped from there without the said draft having been encashed and during the inquiry held in the bank he produced a portion of the said draft showing No.171694 to show that the -said draft had been destroyed by him. He also appears to have made a calculated attempt to mislead the petitioner complainant. Manager of the branch by telling a white lie that ink had been split over the two drafts and for that reason he had removed them out of the draft book and that he had destroyed the demand draft No. 171694 and had burnt demand draft No. 171695. The factum of his having torn two blank drafts and put them in his pocket without destroying them was deposed to by Jan Muhammad his colleague sitting on the seat next to his seat, as stated in the F.I.R. The Manager MCB, Sialkot had through telephone informed Zonal Officer City Zone that draft had been presented which had not been encashed. The evidence; produced before the police who contains the charge against the accused for scheduled offence under section 467 PPC. As already stated subsection (6) of Section 5 'of Ordinance IX of 1984 does not countenance grant of bail to such a person and impels this Court to cancel one which had been granted without taking into consideration these aspects of the case.

6. For the foregoing reasons, I accept this application of cancellation of bail of the accused-respondent Muhammad Aslam Awan. He had been released from the bail on the basis of bail granted to him by this Court. He must, therefore, be relegated to be original position. He shall be taken into custody and sent to the judicial lock up. S.A. /16/S.P.B Bail cancelled.