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Criminal Petition for Special Leave to Appeal Nos. 58 to 63 of 1985, decided on 24th February, 1985.

(Against the judgment of the High Court dated 27‑1‑1985, passed in Criminal Miscellaneous Nos. 2988/B to 2993/B of 1984).

----Art. 185(3)‑‑Criminal Procedure Code (V of 1898), S. 497‑‑Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss. 4(3) (7) & 5(6)‑‑Bail, grant of‑‑Case involving Bank fraud‑‑Bail granted to petitioners by Special Judge, Anti‑Corruption‑‑On coming into force Ordinance (IX of 1984), case transferred to Special Court before commencement of trial‑‑Petitioners' fresh bail application rejected by High Court‑‑Leave to appeal granted to consider (i) whether under provisions of S. 4(7), Offences in Respect of Banks (Special Courts) Ordinance, 1984, bail stood cancelled in circumstances of case or petitioners continued to be on bail granted by Special Judge Anti Corruption; (ii) Whether embargo placed on grant of bail by S. 5(6) Offences in Respect of Banks (Special Courts) Ordinance, 1984 was applicable to petitioners who were aggrieved party and on whom fraud had been played.

Abdul Majeed v. The State Criminal Miscellaneous No. 2149/B of 1984 ref.

Khalid Farooq Qureshi, Advocate Supreme Court with Ejaz Ahmad Khan, Advocate‑on‑Record for Petitioners.

Mian Nusratullah, Advocate Supreme Court for A.‑G. for the State.

Date of hearing: 24th February, 1985.

-‑This order shall all dispose of (i) Criminal Petition No.58/85; (ii) Criminal Petition No.59/85; (iii) Criminal Petition No.60/85; (iv) Criminal Petition No. 61/85; (v) Criminal Petition No. 62/85 and (vi) Criminal Petition 63/85 all filed by Haji Muhammad Ramzan and 3 others, against the order of the learned Division Bench of the Lahore High Court, dated 27th January, 1985, dismissing their bail applications.

It may be mentioned that the petitioners have filed six petitions because the police has filed six separate challans against them, although the prosecution case rests on a single F.I.R. No. 508 dated 12‑10‑1978, (F.I.A. Case No.11 dated 14‑2‑1979 under sections 409, 420, 467, 468, P.P.C. and 5(2), P.C.A.

2. The facts giving rise to these petitions briefly, are that Hap Muhammad Ramzan and his 3 sons namely, Sh. Munir Ahmad, Sh. Khalil Ahmad and Sh. Jamil Ahmad, are partners of a registered firm named Pakistan Oil Mills, Multan, carrying on the business of cotton ginning and oil crushing. The firm had secured a overdraft facility to the extent of Rs.10 lacs from the National Bank of Pakistan, Hussain Agahi City Branch, Multan. The account commenced on 24‑10‑1977 from which date onwards the firm withdrew as well as deposited various amounts in the said Bank. By 23‑2‑1978, it had withdrawn a maximum amount of Rs.7,02,658.55. Thereafter, the firm, on various dates, deposited more money than it withdrew and at one stage the amount of overdraft availed by them stood reduced to Rs.3,97,203.33. By 1‑8‑1978 the amount of overdraft again increased to Rs.9,72,307.25. Then suddenly on 17‑8‑1978, a withdrawal of an amount of Rs.7 lacs was shown in the Pass Book of the firm.

3. According to the petitioners, on getting to know of this huge withdrawal‑entry in their Pass‑Book, the firm sent a notice to the Senior Vice‑President, National Bank of Pakistan, on 26‑8‑1978, making a complaint against Mr. Aslam Majid, Manager of the above‑said Branch of the National Bank of Pakistan, Multan and required that the entry in question should be got corrected. When no action was taken on this notice, the firm lodged a report about this matter against Aslam Majid, aforesaid, at Police Station Kup, Multan, on 20‑9‑1978, alleging therein that he had fraudulently withdrawn an amount of Rs.7 lacs against the overdraft facility of the firm, without their permission or knowledge, whereupon F.I.R. No. 477/283 was registered against Aslam Majid under sections 420, 465, 468 and 471, P.P.C.

4. After about 3 weeks Sh. Muhammad Yousaf, Manager National Bank of Pakistan, Multan, lodged an F.I.R. No. 508/78 under section 409/420/468, P.P.C. alleging that Aslam Majeed above said by abusing his official position and power and in collusion with the petitioners, dishonestly, fraudulently and by illegal means withdrew a huge amount from the Bank to the tune of Rs.20,36,203.33 during the period from 17‑4‑1978 to 17‑8‑1978 from the Branch under his control, in the name of M/s. Pakistan Oil Mills, without adequate security.

5. After the investigation of the case, 6 separate challans were submitted in the Court of Special Judge, Anti‑Corruption. Before the trial commenced, the petitioners applied for bail before the learned Special Judge, Anti‑Corruption, who granted the same by his order dated 24‑3‑1981.

Subsequently, Offence in Respect of Banks (Special Courts) Ordinance No. IX of 1984, was promulgated on 23‑2‑1984. By virtue of section 4(3) of the said Ordinance the six cases against the petitioners as well as all other similar cases, stood transferred to the Special Courts constituted under this Ordinance. In view of the provisions of subsection (7) of section 4 thereof, bail granted to the petitioners by the Special Judge, Anti‑Corruption was deemed to 'stand cancelled'. This subsection reads as follows:‑

"4(7) .... In cases transferred to Special Court by virtue of subsection (3) or subsection (4), any bail granted to an accused person by the Court which tried the case before the transfer shall stand cancelled."

(Underlining is ours)

The petitioners therefore, applied for bail before the High Court which rejected the same vide the impugned order.

Feeling aggrieved the petitioners have applied for bail through the present petitions.

6. It is contended that in view of the wording of section 4(7) of the Ordinance bail granted to the petitioners by the learned Special Judge Anti‑Corruption did not stand automatically cancelled because that Court had not tried the petitioners' case before its transfer. He pointed out that only challans had yet been filed and the case was still pending trial which had not yet commenced.

6(a). He admitted further that although in view of the provisions of section 10 of the above‑noted Ordinance read with Article 203 of the Constitution, the High Court still retained the power to grant bail in such case if it was refused by the learned special Judge constituted under this Ordinance (subject, of course, to the embargo placed thereon by clause (6) of section 5 of the said Ordinance) but in the present case the petitioners need not have filed fresh bail applications before the High Court because as submitted by him, they still continued to be on bail granted to them by the learned Special Judge, Anti‑Corruption.

7. He submitted further that from the facts of this case it is evident that immediately on coming to know of it the petitioners had served a notice on the Senior Vice‑President of the National Bank of Pakistan on 26‑8‑1978 and then lodged a report to the police about the withdrawal of 7 lacs by Aslam Majeed, purportedly in their favour. It is obvious that it is, in fact, they who were aggrieved party and on whom fraud had been played and the embargo placed on grant of bail by section 5(6) cannot be said to be applicable to their case.

8. He also submitted that the contentions urged by him gain support from the judgment of the High Court, inter alia, in Abdul Majeed v. The State Criminal Miscellaneous No. 2149/13 of 1984.

9. After hearing the learned counsel for the petitioners as well as the learned State counsel and going through the relevant provisions of law we feel that the contentions raised by the petitioners counsel need further consideration. Leave is, therefore, granted in all these 6 petitions for the said purpose.

It may be mentioned that the learned State counsel has pointed out that State, too, has filed petitions for leave to appeal against some judgments of the High Court in which it has accepted the view urged before us by the petitioners' counsel. It is, therefore, directed that these appeals as well as the appeals arising out of the petitions filed by the State which involves the same question should be fixed for hearing together.

10. After hearing the counsel for the petitioners as well as the learned State counsel we are of the prima facie, view that there are reasonable grounds to believe that the petitioners are not guilty of the scheduled offences alleged against them. As such we direct that in the meantime all the petitioners be released on interim bail in the sum of Rs.1,00,000 (Rupees one lac) each, with two sureties, each in the like amount, to the satisfaction of Assistant Commissioner, Multan. Ordered accordingly.

M.I. Leave granted.

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