ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Cr. Bail Appl No.D-1381 of 2016

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DATED: ORDER WITH SIGNATURE OF JUDGE

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Present:

Mr. Justice Ahmed Ali M. Shaikh J.

Mr. Justice Muhammad Saleem Jessar J

25^th October, 2016

Mr. Haq Nawaz Talpur Advocate for the applicant

Mr. Saeed Ahmed Memon Standing Counsel a/w I.O. Rasheed A. Shaikh FIA Karachi.

MUHAMMAD SALEEM JESSAR J: Applicant Syed Dawood Shah has sought his release on post arrest bail in crime No.56/2015 registered with Police Station FIA CBC, Karachi for the offences punishable under sections 409, 420, 468, 471, 477-A, 34, 109 P.P.C. Applicant had preferred such plea before the learned trial Court but his request has been turned down vide order dated 15.02.2016. The case, as reported has already been challaned by the police on 14.12.2015 and same is now pending adjudication before Special Court (Offences in Banks) Sindh at Karachi.

2. The crux of the prosecution case as unfolded in the F.I.R. No.56/2015 lodged by complainant Mrs. Aisha Anwar on 30.11.2015 is that she sent a complaint in writing to Director FIA to the effect that on 06.05.2011, she had opened a fresh account in Faisal Bank, Shadman Branch, Clifton-II Karachi and pay order in the sum of Rs.2,82,80000/- was deposited by her in her account. She stated that she had left country 18.05.2011 at 2.00 a.m. She further stated in her F.I.R. that pay order in the sum of Rs.38,00,000/- was also deposited in her account in September, 2011 by her nephew Syed Dawood Shah (present applicant). In the month of February, 2016 when she landed back and visited the bank after her arrival from abroad, she was informed by the Bank officials that balance of Rs.200/- was available in her account as such it was surprising for her. She, therefore, filed such complaint before Director FIA, Karachi.

3. During course of investigation, the present applicant/accused as well as co-accused Haider Ali Raujani, the Bank Manager were arrested by the FIA police and after completion of legal formalities, challan against the accused was submitted before the competent Court of law having jurisdiction.

4. Mr. Haq Nawaz Talpur, learned counsel for the applicant/accused has contended that applicant/accused had operated the account of complainant on the basis of mandate given by her prior to leaving to abroad. He next contended that the applicant/accused being her nephew has acted according to her mandate dated 18.05.2011 given to him by the complainant through co-accused Haider Ali Raujani, the then Manager of the Bank. He further contended that applicant/accused had no criminal intention in maintaining the account of the complainant in view of the mandate dated 18.05.2011. It was also contended by the counsel for the applicant that the account was operated by the applicant with full knowledge and authority conveyed by the complainant to him, therefore, according to him, no illegal act or criminal offence, although alleged, has been committed by the applicant/accused.

5. Mr. Saeed Ahmed Memon, learned Standing Counsel for Pakistan alongwith I.O. Rasheed A. Shaikh of FIA, Karachi has contended that applicant/accused being nephew of the complainant had misused the trust imposed upon him by the complainant and in connivance with co-accused Haider Ali Raujani had misappropriated funds of the complainant by preparing fake document in shape of the alleged mandate and thus deprived her of more than Rs.3,0000,000/-. He further contended that alleged mandate and Power of Attorney was submitted before the Bank on 18.05.2011 when the complainant had already left for USA as such the mandate and power of attorney maneuvered by the applicant/accused in his favour itself speaks truth and he has failed to establish the same to have been executed during stay of the complainant in the country. He has vehemently opposed the bail application and prayed for its dismissal.

6. We have heard learned counsel appearing on behalf of the parties and have scanned the record carefully. It appears from the complaint as well as investigation record made available before us, that the applicant/accused being nephew had assisted rather forced the complainant in opening the account in the Bank concerned on the pretext that the Manager of the said branch namely co-accused Haider Ali Raujani is well known to him and he is also maintaining his account in the same Branch. It further appears that the complainant had not requested to the Bank concerned for issuance of cheque book etc. or even ATM card. The record further reflects that the complainant had sold out her landed property and remaining amount of Rs.38,00,000/- had to be deposited by the purchaser. The forged and manipulated mandate presented by the applicant/accused before co-accused Haider Ali Raujani on 18.05.2011 whereas the complainant had already left the country for USA on 18.05.2011 at 2.00 a.m. as such at the alleged time of mandate, she was not in Pakistan. The record further reflects that after depositing balance amount of Rs.38,00,000/- in the account of complainant, the accused had withdrawn entire amount from her account by way of remittance form either in his account or in account of one Mrs. Farzana. The complainant, as per investigation had totally denied to have had executed any mandate form in favour of accused Syed Dawood Shah. It is worthwhile to mention here that withdrawal of amount from the account of complainant has not been disputed by the applicant/accused nor plausible explanation has been furnished for transfer of the said amount from the account of complainant which act from very face reflects that applicant is involved in the commission of offence.

7. Perusal of record reflects that the complainant had left Pakistan for abroad on her US Passport No.441754863 via Flight No.PK-793 at 0.08.31 am from Karachi Airport alongwith her husband Anwar Raheem. The departure of the complainant has been confirmed from IBMS Database at Jinnah International Airport, Karachi as she was not present in Pakistan on 18.05.2011. From the material available on record it appears that applicant in connivance with co-accused had defrauded the complainant under the garb of so-called mandate and power of attorney. It is very strange why the said alleged mandate and power of attorney were not presented before the Manager of the said Bank at the time of opening of the account, thus, huge amount of more than 300 million of rupees has been misappropriated and the complainant has been deprived of her huge amount. The applicant/accused has violated the trust reposed by the complainant upon him, therefore, he does not deserve any concession being cheater and deceitful person. Since the prosecution has collected sufficient material connecting the applicant with commission of offence as such we do not find any merit in the instant bail application, which is accordingly dismissed. These are the reasons in support of short order dated 24.10.2016, whereby bail application was turned down.

8. The observations made hereinabove are tentative in nature and would not prejudice the merits of the case before the learned trial court.

Judge

A.K / P.S*