Banks (Special Courts) Ordinance 1984: A high court can grant bail on ground of delay in conclusion of trial: SC

ISLAMABAD: The Supreme Court held that the High Courts can grant post-arrest bail to an accused apprehended under the offences in respect of Banks (Special Courts) Ordinance, 1984 on the ground of delay in conclusion of the trial in cases.

A two-judge bench, comprising Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail, in its judgment said that Section 5(6) of the Ordinance has borrowed the language of the second part of Section 497(1) CrPC, which extends to offences falling under the prohibitory clause, and has made it applicable to all the scheduled offences under the Ordinance.

However, the exceptions of prohibitory clause of Section 497(1) CrPC have not been so adopted and made applicable to the scheduled offences under the Ordinance. Therefore, the only ground for grant of bail in a schedule offence under the Ordinance is that which is provided in Section 497(2) CrPC, that is, if the court finds that there are no reasonable grounds for believing that the accused has committed the Scheduled Offence and that there are sufficient grounds for further inquiry into his guilt.

The petitioner, Syed Raza Hussain Bukhari, an officer (OG-II) at the National Bank of Pakistan, Hafizabad, was arrested on the basis of misappropriating a large sum of money from the Bank. His first post-arrest bail was declined on merits on 24.03.2021, and the second bail petition was rejected on the basis of the statutory ground under the third proviso to section 497(1) CrPC by the Lahore High Court.

According to the report of the Special Court, submitted in the SC, the petitioner was arrested on 20.11.2020, the trial commenced on 28.06.2021 and the last date of hearing was 26.07.2022. In this span of almost two years, out of 22 prosecution witnesses, only 12 witnesses have been recorded so far.

The apex court noted that according to the reports the conduct of the petitioner is not the reason for the delay in the conclusion of the trial. He was; therefore, entitled to be released on bail by the High Court in exercise of its inherent powers under Section 561-A CrPC to secure the ends of justice or to prevent the abuse of the process of court, as well as, in exercise of its constitutional jurisdiction under Article 199 of the Constitution to enforce his fundamental rights. However, the High Court has not exercised both the jurisdictions vested in it.

The judgment said that in appropriate cases, a High Court can grant bail on the ground of delay in conclusion of the trial, similar to that which is available under the third proviso to section 497(1) CrPC, under its inherent powers under Section 561-A CrPC to secure the ends of justice or to prevent the abuse of the process of court as held in Khalid Farooq but going further, a High Court also enjoys constitutional jurisdiction under Article 199(1)(c) of the Constitution for the enforcement of fundamental rights. This constitutional jurisdiction of High Courts cannot be abridged by any sub-constitutional legislation.

The judgment said that Section 5(6) of the Ordinance is binding on the Special Court; it is not so on a High Court which fashions its jurisdiction on the basis of the enforcement of the fundamental rights under the Constitution. Undue delay in the trial of the accused infringes his fundamental rights to liberty, fair trial and dignity under Articles 9, 10A and 14 of the Constitution, if the delay cannot be attributed to the accused.

The Court set aside the High Court’s impugned order and allowed bail to the petitioner.

Copyright Business Recorder, 2022