2010 S C M R 1415

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Sayed Zahid Hussain and Mahmood Akhtar
Shahid Siddiqui, JJ

Rai RIASAT ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 914-L of 2009, decided on 21st August, 2009.

(Against the order of the Lahore High Court, Lahore dated 6-7-2009 passed in Crl.
Misc. No.6660-B of 2009).

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.406---Constitution of Pakistan (1973), Art.

185(3)---Criminal breach of trust---Pre-arrest bail, grant of---Suit for recovery filed
against the complainant by the Bank, was much prior to the regis tration of criminal
c a s e ; and it was not denied that complainant got the case registered after filing of
written reply in the recovery suit pending before the Banking Court---Investigation in
the case having remained inconclusive and Bank had filed a r e c o v e r y suit with
r e g a r d to the amount s ub je ct - ma tt er of the F.I.R. against the complainant much
prior to registration of case; petition for leave to appeal was converted into appeal
by the Supreme Court and was allowed and pre-arrest bail was granted---If accused
would misuse the concession of bail, it would be open to the prosecution to move
for c a n c e l l a t i o n of bail.

Rai M. Tufail Khan Kharal, Advocate Supreme Court for Petitioner.

Complainant in person.

Amanat Ali Bukhari, D.P.G. and Mumtaz S.-I. Police Station Baraghar, Nankana Sahib
for Respondent.

ORDER

TASSADUQ HUSSAIN JILLANI, J.---Petitioner seeks pre-arrest bail in case registered

vide F.I.R. No.105 dated 13-3-2009 under section 406, P.P.C. at P.S. Baraghar, District
Nankana Sahib, wherein the allegation is that as Bank Manager in Bucheki Branch of
the National Bank, he misappropriated a sum of Rs. 4,500,000 received from the
complainant in the manner alleged in the F.I.R.

2. Learned Deputy Prosecutor-General opposed the petition by submitting that there are
serious allegations against the petitioner; that he was entrusted with the amount which
he misappropriated and cannot be granted the extraordinary concession of pre-arrest
bail, moreso when the investigation has still not been finally concluded; though in terms
of the finding of the initial Investigation Officer, he had been found guilty. He further
submitted that there are other cases registered against him vide F.I.R. No.10509, dated
27-7-2009, F.I.R. No.54308 and F.I.R. No.10 of 2009 at P.S. Baraghar, District Nankana
Sahib. On Court query, the complaint, who is present in person, however, admitted that
the afore-referred cases were cancelled but added that in sequel to a compromise between
the petitioner and the complainant parties in the respective F.I.Rs.

3. We have heard learned counsel for the parties at some length and have gone through
the F.I.R.

4. Admittedly the suit for recovery filed against the complainant by the Bank is dated 1-
11-2008 which is much prior to the registration of instant criminal case and it is not
Page No. 1 of 2
denied that respondent-complainant got the case registered after filing the written reply
in the said recovery suit (pending before the Banking Court No.II, Lahore). Since the
investigation in the instant case remains inconclusive and as the Bank had filed a
recovery suit with regard to the amount subject-matter of the F.I.R. against the
complainant much prior to registration of case, we are inclined to allow this petition.
The learned Banking Court seized of the matter is however, directed to decide the
recovery suit within six weeks of receipt of this order. The Investigation Officer is
directed to conclude the investigation within 15 days of the receipt of this order and
submit the report under section 173, Cr.P.C. before the concerned Court. If petitioner
misuses the concession of bail, it would be open for the prosecution to move for
cancellation of bail before the learned trial Court which shall decide the matter strictly on
merits.

5. For what has been discussed above, this petition is converted into appeal and allowed.
The petitioner is granted pre-arrest bail subject to his furnishing bonds in the sum of
Rs.5,00,000 with one surety in the like amount to the satisfaction of the learned trial
Court.

H.B.T./R-7/SC Bail granted.

Page No. 2 of 2
2008 S C M R 839

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

SEEMA FAREED and others----Petitioners

Versus

THE STATE and another----Respondents

Crl. P.L.A. No.67-K of 2005, decided on 5th October, 2005.

(On appeal from order of High Court of Sindh, Karachi, dated 26-9-2005 passed in
Criminal Miscellaneous A. No.99 of 2005).

Penal Code (XLV of 1860)---

----Ss. 406, 420, 489-F, 109, 114 & 34---Constitution of Pakistan (1973), Art.185(3)---
High Court in quashment of proceedings, on minute examination of record, had arrived at
the conclusion that since the ingredients of offences alleged against petitioners, were
prima facie, made out, it would neither be just nor fair and proper to stifle the criminal
proceedings at the initial stage---High Court had also exhaustively and comprehensively
dealt with the question of insertion of provision of S.489-F in P.P.C---Approach of the
High Court in the matter of quashing of proceedings was neither illegal nor suffered from
any inherent legal infirmity or material irregularity---Interpretation placed by High Court
on the provisions of the contract as well as the repealing statute, did not suffer from any
misconception of law---Criminal case must be allowed to proceed on its own merits and
merely because civil proceedings relating to same transaction had been instituted, it had
never been considered to be a legal bar to the maintainability of criminal proceedings
which could proceed concurrently because conviction for a criminal offence was
altogether a different matter from the civil liability---No question of law of public
importance having been raised in the facts and circumstances of the petition, which was
without any merits did not warrant any interference in the exercise of its jurisdiction
conferred by Art.185(3) of the Constitution---Leave was refused.

Khawaja Shamsul Islam, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 5th October, 2006.

JUDGMENT

RANA BHAGWANDAS, J.--- Petitioners seek leave to appeal against Sindh High Court
judgment, dated 26-9-2005 dismissing quashment petition brought by them in relation to
F.I.R. No.84 of 2005 under, sections 420, 406, 114, 109, 34 and 489-F, P.P.C. registered
with Police Station Frere, Clifton Town, Karachi.

2. The dispute between the parties arose out of a building and development of lands
contract. A joint account was maintained in the name of the Company to be operated by
the petitioners-Directors as well as the respondent-complainant. After the development of
land and booking of plots/flats seven crossed cheques in the sum of Rs.1,00,000 each
were issued in the name of respondent, which, on presentation to the Bank were
dishonoured. On representation to the Bank, the respondent could not encash the amount
of the cheques fraudulently issued and drawn by one of the Directors of the Company,
who was deliberately not arrayed as co-petitioner before the High Court or before this
Court.

3. Honourable Judge in the High Court, on minute examination of the record and
assessment of the contentions raised before him, arrived at the conclusion that since the
ingredients of offences alleged against the petitioners were, prima facie, made out, it
Page No. 1 of 2
would neither be just nor fair and proper to stifle the criminal proceedings at the initial
stage. The High Court has also exhaustively and comprehensively dealt with the question
of insertion of the provisions of section 489-F, P.P.C. in the Pakistan Penal Code through
Ordinance LXXXV of 2002 promulgated on 25-10-2002 and its lapse after expiry of 20
days in terms of Article 89 of the Constitutional and expressed the view that,
notwithstanding, the lapse of the repealing statute, the provisions of section 489-F would
continue to remain on the statute book and be part thereof.

4. We have heard Khawaja Shamsul Islam, learned Advocate Supreme Court for the
petitioners, who has reiterated the same arguments, which were advanced before the High
Court. On careful scanning of the record and examination of the judgment in the light of
principles of law laid down by this Court, we feel convinced that the approach of the
High Court in the matter of quashment of proceedings is neither illegal nor suffers from
any inherent legal infirmity or material irregularity. Interpretation placed by Honourable,
Judge of the High Court on the provisions of the contract as well as the repealing statute
does not suffer from any misconception of law or violation of the settled principles laid
down by this Court. It is well-settled that, a criminal case must be allowed to proceed on
its own merits and merely because civil proceedings relating to same transaction have
been instituted it has never been considered to be a legal bar to the maintainability of
criminal proceedings which can proceed concurrently because conviction for a criminal
offence is altogether a different matter from the civil liability. While the spirit and
purpose of criminal proceedings is to punish the offender for the commission of a crime
the purpose behind the civil proceedings is to enforce civil rights arising out of contracts
and in law both the proceedings can co-exist and proceed with simultaneously without
any legal restriction.

5. In our considered opinion, no question of law of public importance has been raised in
the facts and circumstances of the present petition, which is without any merit and does
not warrant any interference by this Court in the exercise of its jurisdiction conferred by
Article 185(3) of the Constitution.

6. Resultantly, this petition fails and is hereby dismissed.

H.B.T./S-9/SC Leave refused.

Page No. 2 of 2
2008 S C M R 76

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Ch. Ijaz Ahmed, JJ

Dr. GHULAM MUSTAFA----Petitioner

Versus

THE STATE and others----Respondents

Criminal Petition No.659-L of 2006, decided on 3rd October, 2006.

(On appeal from the judgment/order, dated 13-7-2006 passed by Lahore High Court,
Lahore, in Criminal Miscellaneous No.275/M of 2006).

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.406/468/471---Constitution of Pakistan

(1973), Arts.199 & 185(3)---Quashing of F.I.R. by High Court---Validity---High Court
had no jurisdiction whatsoever to take the role of the investigating agency and to quash
the F.I.R. while exercising constitutional power under Art.199 of the Constitution or
under S.561-A, Cr.P.C. unless and until very exceptional circumstances existed---High
Court had decided the case in violation of the mandatory provisions of the Code of
Criminal Procedure---Offences in the impugned F.I.R. being not compoundable, High
Court was not justified to quash the same on the basis of alleged settlement between the
parties outside the Court---High Court by accepting the petition had erred in law to short
circuit the normal procedure of law while exercising equitable jurisdiction, which was not
in consonance with the law laid down by Supreme Court in various pronouncements---
Impugned order quashing the F.I.R. was set aside in circumstances.

Habib Ahmad's case PLD 1992 SC 353; Haji Sardar Khalid Saleem's case 2006 SCMR
1192 and Col. Shah Sadiq's case 2006 SCMR 276 ref.

Muzamil Akhtar Shabir, Advocate Supreme Court for Petitioner.

M. Akbar Tarar, Additional Advocate-General, Punjab, for the State.

Respondents Nos.3 and 4 in person.

Syed Mumtaz Ali Hamdani, Advocate Supreme Court with A.H. Masood, Advocate-on-
Record for Respondent No.4.

ORDER

CH. IJAZ AHMED, J.--- Petitioner has sought leave to appeal against the judgment,
dated 13-7-2006 and order, dated 22-3-2006 wherein the learned High Court had quashed
the F.I.R. No.610 of 2002 registered at Police Station Satellite Town, Gujranwala under
sections 406, 468 and 471 of P.P.C. on the complaint of the petitioner.

2. The detailed facts have already been mentioned in the petition. However, necessary
facts out of which the present petition arises are that the aforesaid F.I.R. was registered
against the private respondents on the complaint of the petitioner on the allegations that
the respondents had sold the motor car in question to him on the basis of forged and
fabricated documents. The Investigating Officer investigated the case and found the
private respondents guilty and challan was submitted before the competent Court.
Respondent No.3 filed an application under section 249-A, Cr.P.C. before the trial Court
which was dismissed by the trial Court vide order, dated 6-1-2006. Respondent No.3
being aggrieved filed a criminal revision in the Court of Additional Sessions Judge,
Gujranwala who dismissed the same vide order, dated 6-2-2006. Respondent No.3 being
aggrieved filed Criminal Miscellaneous No.275/M of 2006 before the Lahore High Court.
The learned High Court accepted the same and proceedings initiated on the basis of the
Page No. 1 of 2
aforesaid F.I.R. were quashed vide order, dated 22-3-2006. Thereafter, review petition
was filed before the High Court which was also dismissed vide order, dated 13-7-2006.
Hence, the present petition.

3. The learned counsel for the petitioner submits that the learned High Court erred in law
to quash the F.I.R. merely on the statement of the Advocate-General that matter has been
settled between the complainant (petitioner) and respondents Nos.3 and 4. The learned
High Court had passed the impugned order without issuing a notice to the petitioner. He
further maintains that all the offences mentioned in the F.I.R. are not compoundable as
evident from Schedule-II of the Criminal Procedure Code.

4. The learned counsel for the private respondents supported the impugned judgment and
further submitted that learned High Court was justified to quash the F.I.R. in question as
the matter was settled between the parties outside the Court.

5. The learned Law Officer has supported the learned counsel for the petitioner.

6. We have considered the submissions made by learned counsel for the parties and have
perused the record. It is a settled law that our constitution is based on trichotomy. The
Courts have right to interpret the law and the High Court had no jurisdiction whatsoever
to take the role of the investigating agency. There are several pronouncements of this
Court that learned High Court has no jurisdiction to quash the F.I.Rs. while exercising
constitutional power under Article 199 of the Constitution or section 561-A of Cr.P.C.
unless and until there are very exceptional circumstances existed. It is also a settled
proposition of law that judgments of this Court are binding on each and every organ of
the State by virtue of Articles 189 and 190 of the Constitution. The learned High. Court
had decided the case in violation of the mandatory provisions of Cr.P.C. After the
enforcement of the Qisas and Diyat Ordinance, offences affecting the human body as
dealt with, under Chapter XVI i.e. sections 299 to 338-H have been made compoundable,
their composition can be given effect as provided in section 445, Cr.P.C. at any stage. As
mentioned above, the offences in the impugned F.I.R. are not compoundable, therefore,
learned High Court was not justified to quash the F.I.R. in question. By accepting the
constitutional petition the learned High Court erred in law to short circuit the normal
procedure of law as provided by law while exercising equitable jurisdiction which is not
in consonance with the law laid down by this Court in various pronouncements.
Reference can be made to the IB following judgments:--

(i) Habib Ahmad's case PLD 1992 SC 353, (ii) Haji Sardar Khalid Saleem's case
2006 SCMR 1192 (iii) Col. Shah Sadiq's case 2006 SCMR 276.

7. In view of what has been discussed above, this petition is converted into appeal which
is allowed and the impugned orders are set aside. Copy of this order shall be sent to the
concerned S.H.O. and the trial Court for information and necessary action in accordance
with law.

N.H.Q./G-4/SC Appeal allowed.

Page No. 2 of 2
2006 S C M R 483

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Ch. Ijaz Ahmad, JJ

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN and others----Petitioners

Versus

Mian ASIM FAREED and others ----Respondents

Civil Petition No.356-L of 2005, decided on 15th December, 2005.

(On appeal from the order, dated 23-12-2004 of the Lahore High Court, Lahore, passed
in Writ Petition No.1181 of 2004).

Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----S. 7(4)---Penal Code (XLV of 1860), Ss.379, 406 & 420---Constitution of Pakistan
(1973), Art.199--Quashing of F.I.R.---Registration of F.I.R. and taking of cognizance---
Distinction---High Court, in exercise of constitutional jurisdiction, quashed F.I.R. on the
ground that it was registered in violation of the provisions of S.7(4) of Financial
Institutions (Recovery of Finances) Ordinance, 2001---Validity---No: order for quashing
of F.I.R. could be passed nor the same could be approved in absence of any finding that
the offences mentioned in F.I.R. were false and malicious and in absence of a finding that
if a particular forum or mode had been prescribed with respect to taking of cognizance of
an offence then the same also implied prohibition regarding the registration of F.I.R.---
Registration of F.I.R. and taking of cognizance of cases were two distinct and
independent concepts under the criminal law---If the intention of law-maker was to put
any clog on the registration of F.I.R. then the Legislature would have said so specifically
and that if the law put a condition only on the taking of cognizance then it could never be
read to imply prohibition on registration of F.I.Rs.---High Court did not pass legal and
valid order--Supreme Court converted petition for leave to appeal into appeal and set
aside the order passed by High Court---Appeal was allowed.

M.A. Zafar, Advocate Supreme Court for Petitioners.

Abid Aziz Sheikh, Advocate Supreme Court for Respondents Nos.1 to 3.

Akhtar Ali Qureshi, A.A.-G. with Mian Abdul Qayyum Anjum, Advocate Supreme Court
and M. Ikram Khan, D.S.P. Investigation, Kasur for the State.

Date of hearing: 15th December, 2005.

ORDER

KHALIL-UR-REHMAN RAMDAY, J.--- The F.I.R. in question had been recorded for
the alleged commission of offences punishable under sections 420, 406 and 379, P.P.C. at
the instance of an officer of the Industrial Development Bank of Pakistan but had been
quashed by the learned High Court only on the ground that section 7(4) of the Financial
Institutions (Recovery of Finances) Ordinance No.XLVI of 2001 prescribed that it was
only a Banking Court which could take cognizance of the offence under the Ordinance
and that also on a complaint in writing made by a person authorized by the Bank in that
behalf and that in the circumstances, recording of an F.I.R. in the matter could not be
sustained.

2. In the absence of any finding that the above mentioned offences mentioned in the
F.I.R. were false and malicious and in the absence of a finding that if a particular forum
or mode had been prescribed with respect to the taking of cognizance of an offence then
the same also implied prohibition regarding the registration of an F.I.R., no such order
could be passed nor the same could be approved. Needless to add that the registration of
an F.I.R. and taking of cognizance of cases were two distinct and independent concepts
Page No. 1 of 2
under the criminal law; that if the A intention of the law-maker was to put any clog on the
registration of an F.I.R. then the Legislature would have said so specifically and that if
the law put a condition only on the taking of cognizance then it can never be read to
imply prohibition on registration of F.I.Rs.

3. Having heard the learned counsel for the parties at some length, we find that the
impugned order had not been legally and validly passed. In the circumstances, this
petition is converted into an appeal which is allowed as a result whereof the said order
dated 23-12-2004 passed by the learned High Court in Writ Petition No.1181 of 2004 is
set aside.

M.H./I-2/SC Appeal allowed.

Page No. 2 of 2
2002 S C M R 1327

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Tanvir Ahmed Khan, JJ

TANWEER AHMED HARAL---Petitioner

versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.833-L of 2001, decided on 12th February,
2002.

(On appeal from the judgment, dated 20-11-2001 of the Lahore High Court, Lahore,
passed in Criminal Miscellaneous No.4350/B of 2001).

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.420/468/471/476/406/109---Constitution of

Pakistan (1973), Art.185(3)---Bail, grant of---Allegation in F.I.R. against accused was
that when application of co-accused for grant of finance facility was under process of
approval by complainant-Bank, accused obtained letter of guarantee from ABN Amro
Bank, whereupon finance facility was sanctioned and amount of 208.00 million was
withdrawn; and that letter of guarantee was later on found to be forged and fabricated---
Accused had been found fully implicated in the case during investigation as he had
personally encashed the cheques issued to withdraw said amount of facility---No case for
grant of pre-arrest bail to accused was made out--Supreme Court dismissed the petition
and refused to grant leave to appeal in circumstances.

Sardar Muhammad Latif Khosa, Advocate Supreme Court with S. Abul Aasim Jafri,
Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 12th February, 2002

ORDER

TANVIR AHMED KHAN, J.---Leave to appeal is sought against the order, dated
20-11-2001 passed by a learned Division Bench of the Lahore High Court, Lahore,
whereby the petitioner's post-arrest bail application bearing Criminal Miscellaneous
No.4350-B of 2001 was dismissed.

The fact briefly stated for the disposal of this petition for that F.I.R. No. 131 of
2001 was registered against the petitioner on 16-3-2001 with Police Station Civil Lines,
Lahore, under sections 420/468/471/467/406/109, P.P.C. at the instance of Muhammad
Idrees, Manager, Emirates Bank International (EBI), Egerton ,Road, Lahore. The
allegations as contained in the F.I.R. are to the effect that Naeem-ud-Din Qammar and his
brother Shahid-ud-Din Jauhar Sahaf, Zeeshan Murtaza, Muhammad Saleem Khan and
Arif Moaz Shah (a customer of the Bank) approached Mr. Farrukh Karamat, Branch
Manager, EBI and Mr. Ashfaq Gulraiz, Manager Trade Services for finance facility in
respect of a new company to be incorporated in the name of Heimtex Decur (Pvt.)
Limited. Their application was processed and approved by the Head Office, whereupon
the petitioner went to ABN Amro Bank to receive letter of guarantee of Rs.208 million.
EBI approved the finance facility of aforesaid company and amount of Rs.208 million
was withdrawn.

However; subsequently it came to surface that financial guarantee was forged and
fabricated, whereupon the above F.I.R. was recorded. The case was thoroughly
investigated and. the petitioner was found fully implicated therein. It has also come on
record during the course of investigation that the petitioner divulged the confidential
Page No. 1 of 2
opinion of EBI to Naeem-ud-Din co-accused which was addressed to ABN Amro Bank
respecting this guarantee. It has further been noticed that Cheques issued to withdraw the
aforesaid amount on the basis of forged finance facility were personally got encahsed by
the petitioner.

In this view of the matter, no case for grant of post-arrest bail to the petitioner is made
out. The present petition being without any force is dismissed and leave declined.

S.A.K./T-26/S Leave refused.

Page No. 2 of 2
1998 S C M R 908

[Supreme Court of-Pakistan]

Present: Saiduzzaman Siddiqui, Muhammad Munir Khan and Irshad Hasan

Khan, JJ

SIKANDAR ABDUL KARIM ---Petitioner

versus

THE STATE---Respondent

Criminal Review Petition No. 22 in Criminal Petition No. 63 of 1995, decided on

25th March, 1998.

Per Saiduzzaman Siddiqui J.---

(a) Supreme Court Rules, 1980---

----OXXVI, R.1---Review---"Error apparent on the face of the record"---

Connotation---Where an error of law or fact is discovered in an order by reading the
order itself without reference to any other material, such an error would fall within
the category of an "error apparent on the face of the record "---Failure of the Court
while passing an order to notice or take into consideration a statutory provision,
which if so considered would have changed the final outcome of the case, would also
amount to an error apparent on the face of the order.

(b) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

---S. 5(7)---Penal Code (XLV of 1860), S.420/461/471/406/109---Constitution of

Pakistan (1973), Art. 188---Supreme Court Rules, 1980, OXXVI. R.1--Review---
Fixation of amount of bail---Review of order---Charge framed in the case having
mentioned the specific amount of Rs.20 million in respect whereof offence was
allegedly committed, the bail amount in the ordinary course should have been fixed at
Rs.40 million in terms of S.5(7) of the Offences in Respect of Banks (Special Courts)
Ordinance, 1984. .unless the Court for reasons to be recorded was of the view that a
higher amount of bail should be fixed in circumstances of the case---Impugned order
did not indicate that the Court was of the view that the circumstances of the case
justified fixation of bail amount higher than twice the amount mentioned in the.
charge---Fixation of exorbitant amount of bail might amount to denial of bail
although the Court would have found the accused entitled to bail on merits--Amount
of bail fixed at Rs.104 million while admitting the accused to bail was consequently
reduced to Rs.40 million---Review petition was allowed accordingly.

(c) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

----S. 5(7)---Fixation of amount of bail---Object---Object of fixing the amount of bail

in a case is not to penalize the person facing the trial, but the purpose is only to ensure
his attendance and presence during the proceedings of the case--Court, therefore,
while fixing the amount of bail should keep in view the capacity and financial
condition of the accused.

Per Muhammad Munir Khan, J.---

(d) Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, OXXVI, R.1---Review---Supreme Court

cannot review its order passed in a criminal case unless there is an error apparent on
the face of record.

(e) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

Page No. 1 of 6
----S. 5(7)---Fixation of amount of bail---Neither S. 5(7) of the Offences in Respect of
Banks (Special Courts) Ordinance, 1984 nor any other law debarred the Court from
fixing amount of bail higher than twice the amount specified to the charge in respect
of which the offence was alleged to have been committed.

(f) Supreme Court Rules, 1980---

----O.XXVI, R.1---Review---Words "error apparent on the face of the record" which

are of great significance mean such an error which is visible to naked eye and not an
error to be detected with a microscope.

(g) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

----S. 5(7)---Fixation of amount of bail---Word "charge" which has been used twice in
S.5(7), Offences in Respect of Banks (Special Courts) Ordinance, 1984 means
accusation/allegation only and not the charge-sheet prepared under S.221, Cr.P.C.

Chamber's 20th Century Dictionary ref.

(h) Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review---Practice of

Supreme Court is not to review its orders/judgments unless there are exceptional
grounds and compelling reasons.

(i) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

----S.5(7)---Fixing of amount of bail---Law does not require the Court to record

reasons while fixing the bail amount more than twice the amount specified in the
charge.

Per Muhammad Munir Khan J ---Contra

Per Irshad Hasan Khan J. agreeing with Saiduzzaman Siddiqui J

(j) Offences in Respect of Banks (Special Courts) Ordinance, (IX of 1984)---

----S. 5(7)---Penal Code (XLV of 1860), S.420/461/471/406/109---Constitution of

Pakistan (1973), Art.188---Supreme Court Rules, 1980, OXXVI, R.1--Review---
Reduction in bail amount---Subsection (7) of S. 5 of the Offences in Respect of
Banks (Special Courts) Ordinance, 1984 had stated in umambiguous terms that where
an accused person was released on bail, the amount of bail was to be fixed having
regard to the gravity of the charge against him and where the charge had specified any
amount in respect of which the offence was alleged to have been committed the bail
amount could not be less than twice such amount---Surety amount was consequently
reduced from Rs.104 millions to Rs.40 millions in circumstances of the case---
Review petition was allowed accordingly.

Raja Muhammad Anwar, Senior Advocate Supreme Court, K.M.A. Samadani,

Advocate and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Farooq H. Naek, Dy.A.-G. and Sh. Muhammad Naeem, Advocate Supreme Court for
the State.

Date of hearing: 10th October, 1995

ORDER

SAIDUZZAMAN SIDDIQUI, J.---The petitioner seeks reduction in the amount of

bail fixed by this Court vide order, dated 17-9-1995 while admitting him to bail in a
case pending against him before the Special Court, Karachi under sections 420, 461,
471, 406 and 109, P. P. C. , through the above review petition. '

Page No. 2 of 6
2. The learned counsel for the petitioner advanced two-fold contentions in support of
the review petition. Firstly, this Court while fixing the amount of bail in the case did
not take into consideration section 5(7) of the Offences in Respect of Banks (Special
Courts) Ordinance, 1984 (hereinafter to be called as the Ordinance), which provided
that the Court while admitting an accused to bail in a bank fraud case will fix the
amount of bail not less than twice the amount mentioned in the charge. According to
the learned counsel for the petitioner, the amount allegedly defrauded by the
petitioner was mentioned in the charge in the case of Rs.20 million while the bail
amount has been fixed by the Court at Rs.104 million. The second contention of the
petitioner is that the fixation of Rs.104 million as the bail amount almost amounted to
denial of bail to the petitioner as the amount of bail is not only excessive, but
also*beyond the means of the petitioner.

3. The learned Deputy Attorney-General on the other hand opposed the review
application very vehemently. It is contended by the learned Deputy Attorney-General
that the review petition is misconceived and legally not maintainable as there is no
error apparent on the face of order which could justify its filing. It is also contended
by the learned Deputy Attorney-General that according to F.I.R., in the case, the bank
has suffered a loss of a sum of Rs.5205 million on account of the fraud of the
petitioner and as such the amount of bail fixed by this Court at Rs.104 million is
perfectly legal and justified in the circumstances of the case. It is also contended by
the learned Deputy Attorney General that the amount of bail in the case was fixed by
the Court in presence of learned counsel for the petitioner who raised no objection
that the bail amount was excessive or beyond the means of the petitioner and as such
he cannot legitimately make any grievance now to that effect.

4. I will first take up the legal objection raised by the learned Deputy Attorney-
General regarding maintainability of the review petition. The learned Deputy
Attorney-General contended that there being no error apparent on the face of the
order, dated 17-9-1995, the review petition is not maintainable. In my humble
opinion, if an error of law or fact is discovered in an order by reading the order itself
without reference to any other material, such an error would fall within the category
of an error apparent on the face of the record. Therefore, if the Court while passing
the order has failed to notice or take into consideration a statutory provision which if
so considered or taken into consideration would have changed the final outcome of
the case, the omission would amount to an error apparent on the face of the order. In
the present case the petitioner has been admitted to bail by this Court in a case which
has been registered against him under the Ordinance. Section 5(7) of the Ordinance
reads as follows:---

"(7) 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 which the offence is alleged
to have been committed, shall not be less than twice the said amount. "

The above provision clearly lays down that the Court while ad1nitting a person
accused of an offence under the Ordinance to bail will fix the amount of bail after
taking into consideration the gravity of charge against him. However, where the
charge in the case mentions the amount in respect whereof the offence is allegedly
committed, then the Court is required to fix the bail amount not less than twice the
said amount. No doubt the above provision only mentions the minimum amount of
bail to be fixed by the Court where a specific amount is stated in the charge, but in my
humble view, the Court will fix the minimum prescribed amount of bail in all such
cases unless for reasons to be recorded, the Court reaches the conclusion that a higher
amount should be fixed in the circumstances of the case. In the case before us the
charge framed against the petitioner mentioned the amount of Rs.20 million which the
bank was allegedly defrauded. Therefore, in terms of section 5(7) of the Ordinance,
the bail amount should have been fixed at Rs.40 millions unless the Court for any
special reasons to be recorded was of the view that a greater amount of bail was
called for in the circumstances of the case. There is nothing in the order, dated 17-9-
1995 to indicate that the Court was conscious of the provision of section 5(7) ibid
while fixing the amount of bail at Rs.104 million. The learned Deputy Attorney-
General defended the order fixing the amount of bail at Rs.104 million on the ground
Page No. 3 of 6
that the allegation against the petitioner in the F.I.R. was that he allegedly defrauded
the bank of the amount of Rs.52 million, therefore, the bail amount of Rs.104 million
was perfectly legal and justified. Since the charge framed in the case mentioned the
specific amount in respect whereof offence was allegedly committed, the bail amount
in the ordinary course should have been fixed at Rs,40 million in terms of section 5(7)
of the Ordinance, unless the Court for reasons to be recorded was of the view that a
higher amount of bail should be fixed in the circumstances of the case. There is
nothing in the order, dated 17-9-1995 to indicate that the Court was of the view that
the circumstances of the case justified fixation of bail amount higher than twice the
amount mentioned in the charge of the case. I may also mention here that the object
of fixing the amount of bail in a case is not to penalise the person facing the trial, but
its purpose is only to ensure his attendance and presence during the proceedings of
the case. Therefore, the Court while fixing the amount of bail should keep in view the
capacity and financial condition of the accused. Fixation of exorbitant amount of bail
in a case, therefore, may amount to denial of bail although the Court may find the
accused entitled to bail on merits. I, therefore, allow the review petition and reduce
the amount of bail to Rs.40 million keeping in view the provision of section 5(7) of
the Ordinance.

(Sd.)
Saiduzzaman Siddique, J.

MUHAMMAD MUNIR KHAN, J.---I have had the privilege of going through the
order of my learned brother Saiduzzaman Siddique, J. proposing to reduce amount of
bail from Rs.104 million to Rs.40 million. With utmost respect, I am unable to agree
with it.

2. The facts leading to this Review Petition, the arguments advanced by the learned
counsel for the parties for and against the proposition of reducing the amount of bail
have been incorporated in the proposed order in detail, so I need not recapitulate the
same. It would, however, be advantageous to reproduce the relevant provisions of the
Constitution and law, which are as follows:---

"(I) Constitution of Islamic Re ublic of Pakistan 1973: Article 188:

The Supreme Court have power, subject to the provisions of any Act of
Majlis-e-Shoora (Parliament) and of any rules made by the Supreme Court, to
review any judgment pronounced or any order made by it.

(II) supreme Court Rules 1980: Order XXVI Rule 1: .

Subject to the law and the practice of the Court, the Court may review its
judgment or order in a civil proceeding on grounds similar to those mentioned
in Order XLVII, Rule 1 of the Code and in criminal proceeding on the ground
of an error apparent on the face of the record.

(III) Offences in Respect of Banks (S~°""' Courts) Ordinance 1984:

Section 5 (7):

"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 the said amount, "

3. A plain reading of these provisions will show that the powers of this Court to
review its judgment or order are subject to the rules made by the Supreme Court in
this behalf and also the practice of the Supreme Court in review cases. Rule 1 of
Order XXVI of the Supreme Court Rules, 1980 empowers this Court to review order
passed by it in criminal proceedings on the ground of error apparent on the face of
record and on no other ground. So this Court cannot review its order passed in a
criminal case unless there is an error apparent on the face of record. The crucial
question for consideration in this petition, therefore, is as to 'whether order sought to
Page No. 4 of 6
be reviewed suffers from an error apparent on the face of record?'. Having carefully
considered the arguments addressed before us with particular reference to the relevant
provisions of law am of the opinion that it does not. The reasons are as follows:---

(i) Section 5(7) of the Offences in Respect of Banks (Special Courts) Ordinance,
1984 (hereinafter referred to as the Ordinance) restrains the Court from fixing
the amount of bail less than twice the amount specified in the charge in
respect of which the offence was alleged to IF have been committed. Neither
this section nor any other law, debars the Court from fixing amount of bail
higher than twice the said amount. So, by fixing Rs.104 millions as amount of
bail., this Court had not committed any error in law. The words "error
apparent on the face of record" are of great significance. Here it means such
an error which is visible to naked eye and not an error to be detected with a
microscope. I do not see any error apparent on the face of record in the order
sought to be reviewed.

(ii) The word "charge" used in section 5(7) of the Ordinance connotes allegations
against the accused and not the "charge-sheet" or "charge" framed under
Chapter XIX of the Criminal Procedure Code. The dictionary meaning of the
word "charge" as contained in Chambers 20th Century Dictionary are "an
accusation (law)". The word "charge" has been used twice in section 5(7) of
the Ordinance which will show that the charge means accusation/allegation
only and not the charge-sheet prepared under section 221, Cr.P.C. In the F.I.R.
it has clearly been mentioned that the accused had caused wrongful loss of
Rs.52.5 millions to the Bank and correspondingly received wrongful gain for
himself through fraud and forgery. Therefore, it can safely be said that Rs.52.5
millions was the amount specified in the charge in respect of which the
offence was alleged to have been committed and not the charge-sheet as has
been understood in the proposed order.

(iii) The short order requiring the petitioner to furnish bail bond in the sum of
Rs.104 millions was announced and dictated in open Court in the presence of
learned counsel for the petitioner. No objection with regard to the amount of
bail was raised at that time. As far I recollect, learned counsel for the
petitioner had rather stated that the petitioner was a man of means could
furnish bail bond of any amount. It does not lay with the petitioner now to say
that amount of bail was excessive or beyond his means.

(iv) Practice of this Court is not to review its orders/judgments unless there are
exceptional grounds and compelling reasons, which do not exist to this case. '

(v) The considerations for interference with an order passed by the Court itself in
review petition and in appeal from the orders/judgments of lower Court are
totally different. The reasons given in the proposed order may be valid for
interference in appeal against the order of lower Courts but are certainly not
valid for review of its own order.

4. The observations made in the proposed order that the Court while passing order
sought to be reviewed had failed to take into consideration statutory provisions of
section 5(7) of the Ordinance, which if considered or taken into consideration would
have, changed the final outcoming of the case, is factually incorrect, in that, this
Court while hearing the Bail Petition was fully aware of the provisions of section 5(7)
of the Ordinance and meanings of the word "charge" stated therein.

Fixation of Rs.104 millions i.e., twice of Rs.52 trillions, allegedly wrongfully gained
by the petitioner through, fraud and forgery shows that this Court was .fully
conscious of the provisions of section 5(7) of the Ordinance and had considered the
same. The law does not require the Court to record reasons while fixing the bail
amount more than twice the amount specified in the charge. So this Court was not
obliged to give any reason while fixing higher amount of bail. Since, learned counsel
appearing, for the petitioner at the time of hearing of bail matter had given the
impression that the accused was a man of means and was able to furnish bail bond of
any amount and had not raised any objection when Rs.104 millions were fixed,
Page No. 5 of 6
therefore, there was no reason for the Court at that time to doubt the capacity and
financial condition of the accused to furnish the bail bond of Rs.104 millions. The
petitioner has furnished bail bond in the sum of Rs.104 millions and has been released
from the jail as told by Raja Muhammad Bashir, learned Deputy Attorney-General on
my query. This circumstance negates the plea that the petitioner was not financially
strong enough to furnish bail bond of Rs.104 millions. As the petitioner has furnished
bail bond in the sum of Rs.104 millions and is no more detained in jail in this case,
this petition has become infructuous.

5. For all these reasons, no case for review of the order, dated 17-9-1995 passed in
Criminal Petition No.63 of 1995 is made out. The petition is, therefore, dismissed on
merits as well as having become infructuous.
(Sd.)
Muhammad Munir Khan, J

ORDER OF THE COURT

In view of the difference of opinion between the learned Judges, the case is referred
to Hon'ble Chief Justice for appointing a Referee Judge or pass any other appropriate
order in the case.
(Sd.)
Saiduzzaman Siddique, J.

(Sd.)
Muhammad Munir Khan, J.

IRSHAD HASAN KHAN, J.---After hearing the learned AOR for the petitioner and
going through the judgments proposed by my learned brothers Saiduzzaman Siddiqui,
J. and Muhammad Munir Khan (as he then was), I am in full agreement with the
views recorded by my learned brother Saiduzzaman Siddiqui, J., which are based on
cogent reasons. Subsection (7) of section 5 of the Offences in Respect of Banks
(Special Courts) Ordinance, 1984 (Ordinance IX of 1984) states in unambiguous
terms that "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 n respect of which the offence is alleged to have been
committed, shall not be less than twice the said amount". I, therefore, allow the
Review Petition and reduce surety amount from Rs.104 millions to Rs.40 millions, in
the facts and circumstances of the present case.

N.H.Q./S-50/S Petition allowed.

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