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Criminal Miscellaneous No. 188 and Bail Application No. 185 of 1985, decided on 10th September, 1985.

‑‑‑S. 5(7)‑‑Penal Code (XLV of 1860), Ss.467 & 468‑‑Accused and his co‑accused allegedly forging bills and on basis of said bills forging pay orders‑‑Accused allowed bail subject to condition of his furnishing bail bonds‑‑Accused filing application for reduction of amount of bonds on ground of non‑encashment of pay orders‑ ‑Encashment of pay orders and receipt of alleged amount by accused not found to be ingredient of either of two Ss.468 & 467, P.P.C.‑‑Charge against accused specifying alleged amount‑‑Word "charge" used in S.5(7) of Ordinance IX of 1984, held, meant an allegation or allegations, because Courts were called upon to grant or refused bail to accused persons before stage of framing of charge‑‑Factum of pay orders having not been encashed being wholly irrelevant circumstance for fixation of amount of bail bond, amount of bail bond and surety bond under S.5(7) of Ordinance of 1984, had to be not less than twice the alleged amount‑‑Reduction of amount of bonds refused in circumstances.

‑‑‑S.5(7)‑‑Interpretation of S.5‑‑Contention that according to first portion of S.5(7) of Ordinance IX of 1984 amount of bail bond was in discretion of Court and amount already fixed could be varied and be fixed in accordance with gravity of charge, repelled‑‑Amount of bond, held, was to be fixed having regard to gravity of charge against accused only in contingency of charge not specifying any amount in respect of which offence was alleged to have been committed‑‑Where special provision of law has been enacted to meet a special circumstance then in that situation, special provision would apply and not general provision‑‑Amount of bail bond of accused against whom charge of forgery of specific amount was made, therefore, could not be fixed in discretion of Court on basis of gravity of offence and it had to be double the alleged amount.

State v. Zia‑ur‑Rahman P L D 1973 S C 49 rel.

‑‑‑Ss.5(7) & 5(6)‑‑Criminal Procedure Code (V of 1898), S.497‑ Application for reduction of amount of bail bonds‑‑Contention that bail granting orders showed that bail had been granted under subsection (2) of 5.497 of Criminal Procedure Code and therefore, there was no question of any specific charge against accused, repelled‑‑When bail was granted on ground that there were no reasonable grounds to believe that accused had committed a scheduled offence, amount of bail bonds, held, was to be double the amount in respect of which scheduled Wince was alleged to have been committed‑‑Test for amount of bail bonds under Ordinance IX of 1984, was existence of any specification in allegations against accused of amount in respect of whole the scheduled offence was alleged to have been committed‑‑Charge against accused found to have specified an amount‑‑Amount of bond had to be not less than double the said amount‑‑Reduction of amount of bail bonds refused.

Raja Abdul Ghafoor on behalf of Raja Muhammad Anwar for Petitioner.

Nazir Ahmad Ghazi, Public Prosecutor for the State.

Date of hearing: 10th September, 1985.

As per its order, dated 28‑7‑1985 passed in Bail Application No.85/85, this Court had granted bail to the accused petitioner Muhammad Sabir Maikin in the sum of Rs.4,00,000 (rupees four lac) with one surety in the like amount to the satisfaction of Registrar of this Court. The accused petitioner Muhammad Sabir Maikin has filed this application for reduction of the amount of bonds from the said sum of rupees four lac to rupees ten thousand on the ground that the six pay orders forged on the basis of the six bills also forged for a total sum of Rs.1,97,000 which had been recovered at the spot from the custody of co‑accused Shahzad had not been encashed and, therefore, under, subsection (7) of section 5 of Offences in Respect of Banks (Special Courts) Ordinance. 1984 (Ordinance IX of 1984) amount of bonds could not be fixed at double the amount. At the hearing Raja Muhammad Anwar, Advocate, learned counsel for the accused petitioner has pressed the same point.

2. I have considered the said submission of learned counsel but am afraid, I cannot accept the same as the factum of the pay orders having not been encashed is a wholly irrelevant circumstance for fixation of the amount of bonds while passing an order of grant of bail of for reduction of amount of bonds already fixed in a bail order already passed. The relevant consideration for fixation of the amount is whether the charge against the accused specifies any amount or not because subsection (7) of section 5 of the said Ordinance lays down that where an accused person is released on bail, the amount of bail shall be fixed having regard to 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 the said amount. In the context and setting in which the word charge has been used in the above provision, it means an allegation or allegations because the criminal Court are called upon to grant or refuse bails to accused persons much before the stage when charge is framed against an accused person. The allegation against the accused petitioner Muhammad Sabir Maikin and his co‑accused Shahzad is of having forged bills and of having, on their basis, forged pay orders for a total sum of Rs.1,97,000 which are respectively punishable under sections 468 and 467, P.P.C. Encashment of the payment orders and receipt by the accused of the said sum of Rs.1,97,000 is not an ingredient of either of the two sections 468 and 467, P.P.C. as the said offences become complete, the moment the job of forging of the bills and the pay order is accomplished.

However, since the forgery is in respect of a total sum of Rs.1,97,000, the allegation against the accused petitioner and his co‑accused is in respect of forgery of the said sum of money. Thus the charge or allegation against the accused petitioner as laid in prosecution story specifies an amount of Rs.1,97,000 in respect of forgery punishable under sections 467 and 468, P.P.C. The learned counsel has not argued that the charge of forgery on two counts does not specify any amount in respect of which the offences in question are alleged to have been committed. He is, therefore, deemed to have accepted that the charge against the accused petitioner specifies an amount of Rs.1,97,000 in respect of which the offences under sections 468 and 467, P.P.C. are alleged to have been committed. Accordingly under the command of law as laid down in the said provision, the amount of bail bond and surety bond has to be not less than twice the said amount of Rs.1,97,000 and therefore, the amount of bonds cannot be reduced from rupees four lac to rupees ten thousand.

3. The learned counsel has next raised the point (which he had not taken in his application) that in earlier part of subsection (7) of section 5 of said Ordinance it has been given that the amount of bail shall be fixed having regard to the gravity of the charge against him. His submission is that under the said earlier portion of the said provision, the amount of bond is in the discretion of the Court and the amount already fixed can be varied and should be fixed in accordance with the gravity of the charge. He, however, forgets that remaining portion of the said provision clearly lays down that where the charge specifies any amount in respect of which offence is alleged to have been committed it (the amount of bail) shall not be less than twice the said amount. It is clear from perusal of the entire provision that amount of bond is to be fixed' having regard to the gravity of the charge against the accused only in the contingency of the charge against the accused not specifying any amount in respect of which the offence is alleged to have been committed. The later portion of subsection (7) of section 5 of the Ordinance is a special provision in respect of a situation and therefore, falls under the category of special law while earlier portion of the said subsection is general in nature and applies generally to case of bail. It is well‑known that where special provision of law has been enacted to meet a special situation, then in that situation the said special provision would apply and not the general provision. I am fortified in this view of mine by the observation of their Lordships of the Supreme Court in i State v Zia‑ur‑Rahman P L D 1973 S C 49 at 89 to the effect that it is well‑established rule of interpretation that where in a statute, there are both general provisions as well as special provisions for meeting a I particular situation, then it is the special provision which must be applied to that particular case or situation instead of the general provision. The same rule would apply when in the same section or' subsection of a section of a statute both special provision for special situation and a general provision for ordinary situation has been made by the law‑maker. Seen in this light, the amount of bail of the accused, charge against whom is one of commission of offence of forgery in respect of total sum of Rs.1,97,000 cannot be fixed in the discretion of the Court on the basis of gravity of the offence, it has to be, under the command of law, not less than double the amount in respect of which there exist a charge against the accused. I, therefore, reject this point advanced by the learned counsel for the accused petition.

4. Learned counsel for the accused petitioner has canvassed yet another point. His contention now is that the perusal of bail granting orders shows that bail in this case had been granted to the accused under subsection (2) of section 497, Cr.P.C. on the ground there are not reasonable grounds to believe that accused has committed a non‑bailable offence but there were sufficient grounds for further enquiry into his guilt and in that situation there is no question of charge against the accused specifying any amount in respect of which the offence had been committed. I have considered this point too but find no merit in it. It is true that under section 497(2), Cr.P.C. the Court must first come to the conclusion that there are not reasonable grounds to believe that the accused has committed an offence with which he is charged and in the order of grant of bail passed by this Court there is an implied tentative finding to that effect but it is notable that under subsection (6) of section 5 of the Ordinance, except for cases falling under provisos 1 and 3 to subsection (1) of section 497, Cr.P.C., bail can be granted in scheduled offences only when there are no reasonable grounds to believe that the accused is guilty of a scheduled offence with which he has been charged. Therefore, even when bail is granted on the ground that there are not reasonable grounds to believe that he has committed a scheduled offence, the amount of the bond is to be double the amount in respect of which the scheduled offence is alleged to have been committed. If the argument of the learned counsel is accepted, then in all cases the amount of bail have to be fixed in accordance with gravity of the offence. That would, however, be wholly incorrect. The test for the amount of bond to be fixed in an order of grant of bail under the said Ordinance is the existence of any specification in the allegations against an accused person of the amount in respect of which scheduled offence is alleged to have been committed. If it is specified, the amount of bond has got to be fixed at an amount not less than double the said amount. Since, it has already been found in the foregoing paras that charge against the accused petitioner specifies an amount in respect of which scheduled offences had been committed, under the command of law, the amount of bond has to be not less than double the said amount. The said amount of bail bonds and surety bonds which is just a little more than double that amount specified in the charge, it cannot be reduced. There is, therefore, no substance in this plea of the learned counsel which is also, therefore, repelled.

5. For the forging reasons, I think there is no merit in this application. I, therefore, dismiss the same.

H.A.K. Application dismissed.

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