IN THE HIGH COURT OF SINDH AT KARACHI
MR.
JUSTICE SALAHUDDIN PANHWAR
CP NO.D-3646/2012
Petitioners : Waqar
Ahmed and another,
Through: Mr. Shaukat Hayat, Advocate.
Respondents : The
Chairman, NAB and another,
Through Mr. Noor Muhammad Dayo, ADPG NAB, alongwith Mr. Zamir
Hussain, Senior Prosecutor, NAB.
CP NO.D-3779/2012
Petitioners : Irfan
Iqbal Puri,
Through: Mr. Shaukat Hayat, Advocate.
Respondents : The
Chairman, NAB and another,
Through Mr. Noor Muhammad Dayo, ADPG NAB, Advocate.
Mr. Waleed Ansari, D.A.G.
Date of hearing: 27th January and 6th
February, 2014.
Date of hearing: 6th March, 2014.
SALAHUDDIN PANHWAR, J. Through captioned petitions,
petitioners pray as under:-
a. Declare that the respondents as well as the trial Court has no
jurisdiction to take the petitioners in custody who were already on bail from
the trial Court vide order dated 13.05.2010.;
b. Declare that the petitioners shall continue to remain on bail vide
order of the trial Court dated 13.05.2010 and their bail order and bail bond is
still intact, with no legal effect after transfer of the case of the petitioner
from the Court of Additional Sessions Judge-III (South) Karachi to the
Accountability Court No.I vide order dated 28.07.2012;
c. Direct the trial Court on transfer of the case from ADJ-III
(South) Karachi to Accountability Court vide order dated 28.07.2012, may not
take into custody by treating their existing bail cancelled/non-existence
automatically on transfer of the case from one Court to another Court.
d. Grant interim bail / protection to the petitioners, not to arrest
the petitioner without getting necessary permission from this Honourable Court
in pending case before Accountability Court No.I.
3.
Precisely, relevant facts
as set out in above petitions are that petitioner No.1 is Director, petitioner
No.2, and petitioner in CP No. D 3779/2012 are sharers of M/s. Capital One
Equities Limited respectively. The Security and Exchange Commission of Pakistan
filed complaint under section 24(2)/28(2) of CD Act 1997 read with section 25
of the Security and Exchange Ordinance 1969 under sections 409, 467, 468, 471
and 474 read with section 34/109 PPC. Enquiry was commenced, during enquiry the
bank demanded margin of Rs.67.21 million to make up shortfall in drawing power;
the accused company failed to make payment as such the bank exercised its
pledge, called option and sold clients’ shares pledged and adjusted amount of
more than Rs.204 million and likewise the KSE sold clients’ share value of more
than Rs.77 million. Thereafter trial Court took cognizance and issued warrants
of accused persons to serve their attendance with surety of Rs.5 lacs. Pursuant
to that petitioners surrendered before the trial Court and furnished surety
amount. Thereafter instant case was transferred under section 16-A sub-section
(a) of NAB Ordinance 1999 to the Accountability Court; transfer was made
without opportunity of hearing to the petitioners. Thus, The trial Judge/
Accountability Court is bent upon to arrest and remand the custody of the above
petitioners to jail. Since there is no provision of bail in NAB Ordinance
therefore the petitioners have no alternate remedy except to file this
petition.
4.
Learned counsels for the
petitioners has, inter-alia,
contended that petitioners were granted bail by the Additional Sessions Judge,
Karachi, therefore subsequent transfer will not amount to cancel such bail and legally
will remain intact; subsequent Court is not competent to treat it cancelled,
and remand them in custody. In support of his contention he relied upon case of
Abdul Qudoos vs. the State (1998 PCrLJ page 948).
5.
Conversely, learned
Special Prosecutor NAB has argued that Accountability Court is competent to
remand them in custody as jurisdiction and powers of both Courts are entirely
different and moreover the quantum of punishment also varies.
6.
Heard counsel, perused
the record.
7.
Since controversy in instant
case relates to a legal proposition with regard to legality and continuity
of a bail order(s) granted by one Court and subsequently after transfer of such
cases before other court(s) of different jurisdiction, therefore, to
properly understand this legal issue, we feel it proper to first have a glance
to the relevant Chapter of the Criminal Procedure Code which is Chapter-XXXIX
with title ‘OF BAIL’. The Chapter starts from Section 496 and lasts
at Section 502 of the Code. There can be no denial to the legal position that
every section has got its own importance but to have the meaning and objective
whereof clear it is always necessary to read such section with reference to
subsequent section (s) because subsequent sections always explain the limitations
of earlier one.
Section-496
deals with matter (s), where any person other than a person accused of a
non-bailable offence, is arrested by an officer incharge of a police-station or
appears or is brought before a Court. Such provision insists release of such
person on taking bail.
The Section 497 of the Code is of much importance
therefore, it would be proper to reproduce the same which is so reproduced as
under:-
“497. When bail may be
taken in cases of non-bailable offences.—(1) When any person accused of any non-bailable offence is arrested or
detained without warrant by an offence 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 sick or infirm person accused of such an
offence be released on bail:)
(Provided further that a woman accused of such an offence
shall be released on bail, as if the offence is bailable, notwithstanding
anything contained in Schedule-II to this Code or any other law for the time being
in force:
Provided further that a woman may not be so released if there
appear reasonable grounds for believing that she has been guilty of an
offence relating to terrorism, financial corruption and murder and such
offence is punishable with death or imprisonment for life or imprisonment for
ten years, unless having regard to the facts and circumstances of the case, the
court directs that she may be released on bail;”
This provision is
prohibitory in its nature, however, subsequent subsection (s) vests such
officer or the Court, as the case may be, to order for release of such a person
on bail subject to establishing the conditions, so provided under these
subsections. However, from the reading of the above it becomes quite clear that
at the time of release of an accused the officer in charge of a police-station
or the Court is required to consider an offence and its punishment, according to the evidence collected by
prosecution.
8. The deliberate use of the word offence
in the above provision makes it clear that if after lodgment of the FIR, at any
subsequent stage, the offence is added or the court takes the cognizance of an offence
then the release of the accused or his admission to bail, will not exempt such
person from seeking bail in such offence added subsequently. We may add
here that if an FIR lodged for an offence under section 324 PPC and bail was
granted but at later stage injured succumbs to injuries as such section 302 PPC
shall come into play. In such eventuality it would not be justified to let the
person continue on bail because he was never admitted to bail for offence u/s
302 PPC. However it would not be justified to commit him to custody
straightaway but what the law of propriety would demand is that such person be
not deprived of his liberty without providing him an opportunity of hearing by
serving him with such show cause notice by the court
9. Further, the reading of the said provision shows that
the legislature has used the words ‘officer in charge of a police station’ and
‘the court’, therefore, it can safely be concluded that first it is the officer
incharge of a police station where the case is lodged/ registered and
then it is the Court where such person is brought/ produced or tried which
have powers, jurisdiction and authority to release such a person on bail. The
position, being so, makes it obvious that these words are to be given their due
meaning as and when appearing for such purpose or discussion. It would be
advantageous to add here that the word “police station’ and ‘officer-in-charge
of a police-station’ are defined in Section 4 of the Criminal Procedure
Code but not the word ‘Court’. However, the office incharge of a police
station and the Court shall be given the meaning as defined by the Special
statute itself. It is important to make it clear here that the word Court will
lack its true meaning if it is not read as court of competent jurisdiction because
a Court, in ordinary meaning, is a place where justice is done or dispensed.
10. Let’s proceed further to have a proper
answer to the above proposition. It, however, requires no explanation that to
move or seek for bail the person must be arrested or against whom a case should
stand registered because the bail is to be granted in a case only which
position stands further clear from
the provision of Section 498-A of the Code, which for convenience is reproduced
hereunder:-
498-A. No bail to be
granted to a person not in custody, in Court or against whom no case is
registered etc. Nothing in section 497
or section 498 shall be deemed to require or authorize a Court to release on
bail, or to direct to be admitted to bail any person who is not in custody or
is not present in Court or against whom no case stands registered for the time
being and an order for the release of a person on bail, or direction that a
person be admitted o bail shall be effective only in respect of the case that
so stands registered against him and is specified in the order or direction.
Simple reading of the above provision shows
that it restricts for exercising the powers under Section 497 or 498 in
following circumstances:-
i)
no bail to be granted to
a person who is not in custody;
ii)
no bail to be granted to
a person who is not present;
iii)
no bail to be granted to
a person against whom no case is registered for the time being;
The second part of the above provision
explains effectiveness and continuity of an order, so passed under
Section 497 and 498 of the Code whereby the legislature confined the
effectiveness and continuity to :-
‘an order for the release
of a person on bail, or direction that a
person be admitted to bail shall be effective only in respect of the case
that so stands registered against him and is specified in the
order or direction’
Thus if both the parts of the Section 498-A of
the Code are read together it leaves nothing ambiguous that it is the case wherein
one is released on or admitted to bail under Section (s) 497 and 498 of the
Code which order shall be effective for that case only so specified in the
order or direction.
11. The
object of the first part of the above provision seems to be nothing but that
since release of a person under section 497 or his admission to bail under
section 498 Cr.PC requires one to show his entitlement for release or admission
on bail which may either be ‘further enquiry’, ‘case not falling within
prohibitory clause’, or mala-fide
or ulterior motives on part of police and complainant party, as the case
may be. Such grounds shall require a reference to the case.
However, the object of the second part of the
above provision can be nothing but that such release or admission to bail is
confined to that particular case only and it shall not be a license for
such person (released on or admitted to bail) to seek an exception to his
arrest or appearance, so required by the authorized and legal person for
purpose of investigation of other case because the law demands that
every charge / offence should have its own fate which is only possible after
two phases i.e ‘investigation’ and ‘trial by a competent court of
law’.
The phrase ‘specified
in the order or direction’ so used in the Section 498-A of the Code also
requires to be given its due meaning, purpose and intention. It cannot legally
sustain that a court of inferior jurisdiction shall release the accused,
charged for an offence triable by superior court nor a court of Sessions can
competently release an accused of offence triable by the other Court. It can be
concluded that an order of release on bail or admission to bail shall be
effective only in respect of the case that so stands registered against him and
is specified in the order or direction.
12. The position, being so, becomes
quite obvious from reading of the Section 500 of the Code, which reads as under:-
Section.500. Discharge from custody. (1) As soon as the bond has been executed, the person for whose
appearance it has been executed shall be released; and, when he is in jail, the
Court admitting him to bail shall issue an order of release to the officer in
charge of the jail, and such officer on receipt of the order shall release him.
(2) Nothing in this section,
section 496 or section 497 shall be deemed to require the release of any
person liable to be detained for some matter other than that in
respect of which the bond was executed.
From
the above reading we can safely respond to the proposition as follows:-
i)
the release is always for
an offence;
ii)
the Court should
be of competent jurisdiction with reference to such offence;
Provided on addition of
section for offence of greater punishment or cognizance, if so, taken by the
Court for such greater offence will require the court to consider the matter
afresh within provided parameter but after serving a notice upon such admitted
to bail’
iii)
the release or admission
on bail shall be effective only for
that case, so stands registered against him and is specified in the
order or direction;
iv)
the Court, receiving the
case, should take the bond to its satisfaction or least should satisfy
whether the bond, earlier executed, serves the purpose of ‘bond’ as this
will help in avoiding a plea of executor (surety) that he was not bound to
produce accused before such court hence no breach of bond was committed;
v)
Where only bond is
executed, that Court will be competent to forfeit the bond and proceed against surety
u/s 514 Cr.P.C, if surety fails to produce accused without making reference to
the Court, which granted bail;
(Embolding and
underlining is provided for emphasis)
Here it is important to endorse that since it is the bond the
forfeiture whereof results in proceeding for recovery of the penalty from the
surety, therefore, the importance and object of ‘bond’ should always be
given its due weight by the Court (s). Reference can be made to the case of
Hubdar Chandio vs. the State (1997 PCrLJ 1597).
13. Now let’s test the case of “Abdul
Qudoos vs State (1998 PCr.LJ 948)” relied by learned counsel for petitioners
on above touchstone. Though that case is revolving upon the powers of
Section 497(5) of the Code, however, the para-7 whereof confirms the above
view. For sake of convenience the relevant para is reproduced hereunder:-
“7. It is not disputed that
only scheduled offences are triable by a Special Court upon submission of
challan or complaint, as the case may be , and unless the case is not sent
to the Special Court, the order of the nature curtailing the liberty of a
person by Special Court under section 497(5) Cr.P.C, interfering in the order
passed by a Court other than Special Court would be coram non judice”
(Embolding and underlining is supplied for
emphasis)
From underlined portion it is clear that even in
said case the jurisdiction to consider the question of effectiveness of
bail granted by ordinary court by the Special Court was not prohibited but it
was held that only on taking cognizance of the offence the Special Court would
be competent to pass such order and not otherwise. We also agree with such
legal position because till taking of cognizance by a special Court the order
(s) passed by the court trying such offence shall continue holding the field
and the Special Court shall not be legally justified to pass any order in
respect of such a matter on which cognizance is not taken.
14. Now, we revert to the merits of
the case, in hand. From perusal of the record it is surfaced that the
petitioner(s) were admitted to bail by the 3rd Additional Sessions
Judge, South, Karachi; they continued appearing before the trial court; later their case
stood transferred to the Accountability Court No.1, under section 16-A of the
National Accountability Ordinance, 1999. Per Section 16-A such transfer of a
case from any Court of law or Tribunal shall be deemed to be a reference under
section 18 of the Ordinance. The position, being so, makes it patent that the
cognizance has been taken by the Accountability Court No.1 onto the matter and
now matter is no more pending before Additional Sessions Court-III Karachi
South, therefore, the bond, so executed by the petitioners, before the
earlier Court of different jurisdiction, cannot be legally said to be intact,
as per Section 500(2) of the Code and ceased to its effect, thus accused cannot
claim that they are on bail, legally they have to approach for bail as fresh in
accordance with law before the competent court. However, judicial propriety
demands that such court on taking cognizance shall not be justified to commit
the petitioners to custody straight-away but is required to serve a show cause
notice upon the petitioners/accused.
15. Candidly
NAB Ordinance does not provide provision of bail rather put embargo that bail
in NAB matters cannot be granted under section 9(6) NAB, but it is settled
proposition of law that in cases of NAB, High Court can grant bail in Writ
Jurisdiction as held in series of decisions by apex Court and thus said
proposition falls within the scope of “stare decisis”, meaning thereby, that
to stand by decision and not disturb the undisturbed, this is understood to mean
that courts should generally abide by precedents and not disturb settled
matters. Reference can be to the case of NAB v. Khalid Masood and another
reported in (2005 SCMR page 1291), wherein it is held that High Court can
always grant bail in appropriate cases in exercise of jurisdiction under
Article 199 of the Constitution of Islamic Republic of Pakistan 1973, to any
person / accused of an offence under the National Accountability Ordinance,
1999, notwithstanding the bar contained in section 9(6) of the said Ordinance;
same view was followed from the case of Haji Ghulam Ali v. the State reported
in (SCMR 2003 597), and the case of Abdul Aziz Niazi v. The State reported in
(PLD 2003 SC 668).
16. It
is matter of record that petitioners were initially granted bail by the Court
of Additional Judge IV, South, Karachi, on merits, thereafter on jurisdiction point the matter
has been transferred to the Accountability Court but record reflects that there
is no new development in facts and circumstances of the case and they have not
been alleged that they have committed further offence in addition to earlier. However
on same facts, section of NAB Ordinance 1999, provides greater sentence falling
within prohibitory clause of section 497 Cr.P.C. Thus, according to the
circumstances of this case, the quantum of sentence, is yet to be determined by the trial Court therefore,
on this account instant matter falls within the scope of further enquiry as
contemplated in section 497(2) Cr.P.C.
17. Since,
after transfer of the case, before accountability Court, petitioners approached this Court, whereby they were granted interim
pre-arrest bail by order dated 17.10.2012 and 24.10.2012, Since then they are
attending the trial Court (facing charge) regularly as well this court, and
prosecution has not claimed at any stage regarding misuse of concession of bail
thus this aspect, alongwith merits can be taken as one of the circumstance
favourable to the petitioners.
18. Keeping in view the given
circumstances we are of the considered view the petitioners are entitled for
bail. Consequently interim bail already granted by order(s) dated 17.10.2012
and 24.10.2012 is hereby confirmed on same terms and conditions.
19. In view of above, above-captioned
petitions are disposed of with listed application.
J U D G E