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IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Bail Application No. 693 of 2016

(Mohan Lal Vs. The State)

Present:

Mr. Justice Ahmed Ali M. Sheikh &

Mr. Justice Muhammad Saleem Jessar

Dated of hearing : 17.10.2016

Applicant : Mohan Lal through Mr. Muhammad Ashraf Kazi, Advocate.

Respondent : The State through Mr. Muhammad Aslam Butt, D.A.G.

Complainant : Aley Muhammad through Mr. Altaf Hussain Sahar, Advocate.

O R D E R

Muhammad Saleem Jessar, J: - Applicant Mohan Lal seeks his release on bail in Crime No.22 of 2015, for offence punishable under Sections 409, 420, 468, 471, 34, 109 P.P.C. read with Section 4 Anti Money Laundering Act, 2010 and Section 5(2) of the Prevention of Corruption Act, 1947, registered at Police Station F.I.A., C.B.C., Karachi, on sole ground of statutory delay in conclusion of his trial. The Applicant had preferred such plea before the learned trial Court but same was declined vide order dated 26.04.2016.

2. The crux of prosecution case as unfolded in the F.I.R. captioned above is that a complaint was sent by Aley Muhammad, Unit Head Banking Services Group Allied Bank Limited, Banglore Town, Shahrah-e-Faisal, Karachi, stating therein that a debt of Rs.72,80,000/- from the account of TCP Sugar Mills in the account of M/s Al-Hamd Traders, deposited in UBL, Nappier Road Branch through the said M/s Al-Hamd Traders, which was neither found registered nor have any NTN number issued by the FBR, as such the cognizance was taken after registration of F.I.R. and during the course of investigation the present applicant along with other accused was also found beneficiary of aforementioned pay order.

3. At the very outset, learned counsel for applicant, under instructions, submitted that applicant is ready to deposit remaining amount i.e. Rs.4,00,000/- as he has already paid Rs.9,00,000/- through his son. He further contended that in similar circumstances, this Court has already extended the concession of bail to co-accused Mangal Das vide order dated 13.11.2015 in Criminal Bail Application No.590 of 2015.

4. Learned D.A.G. and learned counsel for the complainant though opposed such proposition but could not controvert the contention advanced by learned counsel for the applicant.

5. We have heard the arguments of either side and have perused the material made available before us with valuable assistance of the learned counsel appearing for the parties.

6. As is manifested from the record that upon the basis of a fake TCP’s letter bearing No.TCP(F&A) Ext-Audit/160/2014-2015, dated 18.03.2015, the pay order No. AAA-11771935 dated 18.07.2014 amounting to Rs.72,80,000/- issued by TCP’s Sugar OD Account No.01-570-0002-6 being maintained at Allied Bank Limited, FTC Branch, Karachi was issued in favour of M/s Al-Hamd Traders having their account at UBL, Napier Branch Karachi being maintained by co-accused Syed Raza Muhammad Shah. Thereafter entire amount viz. 72,80,000/- was transferred to various accounts including account of co-accused Mangal Das and present Applicant. Per investigation papers, Rs.38,00,000/- were transferred from account of M/s Al-Hamd Traders to the account of co-accused Mangal Das and out of Rs.72,80,000/-, two cheques bearing No.1515126103 dated Nil amounting to Rs.9,00,000/- and cheque No.1327668836 dated Nil amounting to Rs.4,00,000/- were landed in account No.1028-0071-0060820-015 titled in the name of present Applicant being maintained by him at Bank Al-Habib Limited, Lee Market Branch, Karachi.

7. Learned counsel for the Applicant has taken at the very outset two pleas for grant of bail to the present applicant; first the statutory delay in conclusion of trial; and second the rule of consistency. While perusing the record, we have observed that in all 18 witnesses have been cited by the prosecution in challan and out of 18 only two have been examined within the period of more than one and half year. The Applicant is in custody since the date of his arrest i.e. 19.03.2015 and charge against him was framed by learned trial Court on 30.11.2015. Per case diaries annexed with the file the counsel for Applicant has sought only four adjournments and on various dates P.Ws. have not attended the Court. The contention raised by learned counsel for the complainant to the effect that the trial has commenced, therefore, Applicant does not deserve bail has no force. In our view mere commencement of trial is no ground for refusing the bail to an accused particularly when co-accused Mangal Das and Syed Raza Muhammad Shah have already been granted bail by this Court on same footings. In this context, we are also fortified with the golden dicta laid down by Hon’ble Supreme Court in its esteemed Judgments reported as the cases of Ikram-ul-Haq v. Raja Naveed Sabir & Ors 2012 SCMR 1273 & Nisar Ahmed V. State 2014 SCMR 27. It was held in the case of Nisar Ahmed V. State 2014 SCMR 27, as under:

4…… As per argument of complainant’s learned counsel that the bail granting order may affect the merits of the trial which is likely to commence is concerned, there is no bar with this Court to grant bail at any stage provided petitioner has made out a case of further enquiry. The rule laid down in Muhammad Ismail V. Muhammad Rafique (PLD 1989 SC 585) , is a rule of propriety and practice and cannot be taken as a bar for the grant of bail if an accused has made out a case for the same. In Muhammad Ismail’s case supra, this Court alluding to this practice noted that ‘it is well known practice of the superior Courts of Pakistan that when a murder case is fixed for hearing ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge”. But the Court in the operative part of the same judgment attended to the nature and scope of this practice of the Court by holding as follows:-

“The question the arises; whether, subsection (2) of section 497, Cr.P.C would have operation notwithstanding the afore-stated practice of this Court. Much discussion is not necessary in this behalf. When an accused person becomes entitled as of right to bail under subsection(2) of section 497, Cr.P.C, the same cannot be withheld on the ground of practice; because, the latter is relatable to exercise of discretion while the former is relatable to the exercise and grant of right.’

8. Since co-accused Mangal Das has been granted bail by this Court after depositing Rs.38,00,000/- being the share out of allegedly embezzled amount and the Applicant as shown in the investigation was benefited to the extent of Rs.13,00,000/- allegedly embezzled by him and out of which, he had paid about Rs.9,00,000/- during investigation through his son Naresh.

9. In the circumstances and in view of the proposal advanced by the learned counsel for applicant upon the basis of case of Shamraiz Khan (supra), the applicant (Mohan Lal) is entitled to bail. Accordingly, the application in hand stands allowed. The applicant Mohan Lal is granted bail on his furnishing solvent surety in the sum of Rs.2,00,000/- (Rupees Two Lacs only) with P.R. bond in the like amount to the satisfaction of learned trial Court, beside to deposit of Rs.4,00,000/- (Rupees Four Lacs only) with the trial Court subject to final outcome of the proceedings.

10. Needless to mention that the observation made hereinabove are tentative in nature and only relevant for the purpose of bail application and, therefore, trial Court shall not be influenced in any manner whatsoever while deciding the case on merits.

11. Instant bail application stands disposed of, in the terms stated above.

JUDGE

Dated: 03.11.2016.