ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Cr. Bail Application No.1009 of 2015

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Date                                      Order with signature of Judge

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Present

              Mr. Justice Muhammad Ali Mazhar

                          Mr. Justice Zulfiqar Ahmad Khan

Haris Jawed Nawadia…..…………v/s…..……………..The State

Date of hearing: 14.01.2016

M/s. Mehmood Habibullah and Hassan Sabir, Advocates for the Applicant.

Shaikh Liaquat Hussain, Standing Counsel.

Mr. Mohammad Azam Rajpoot, I.O. and Mirza Tanvir Ahmed, Inspector (Legal) FIA.

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Muhammad Ali Mazhar, J: The applicant has applied for post arrest bail in Crime No.03/2012, lodged at P.S F.I.A, SBC-Karachi under Sections 5, 8, 22 & 23 of Foreign Exchange Regulations Act, 1947  and Sections 406, 409, 420, 468, 471, 477-A/109/34 P.P.C.  The F.I.R. was lodged by Muneer Ahmed, Joint Director, Financial Monitoring Unit, State Bank of Pakistan, Karachi.

2. The brief facts of the case are that a report was received on 28.10.2011 regarding suspicious transaction under A.M.L. Act, 2010 on which an enquiry was ordered by Zonal Directorate, F.I.A, Sindh Zone, Karachi.  It is further alleged in the FIR that two suspicious transactions were reported in connection with

account of Muhammad Ismail and Orangzeb Alam being maintained at M.C.B Bank’s Sunset Boulevard, D.H.A, Karachi. 

3. The learned counsel for the applicant argued that the name of the applicant is not mentioned in the F.I.R., which fact has been admitted by the Investigating Officer as well as learned Standing Counsel.  However, he submits that in the Final Charge Sheet dated 13.08.2013, the name of the applicant is mentioned with the following role:

“As far as access and misusing of CNICs of Mohammad Ismail s/o Mohammad Ibrahim and Mohammad Orangzeb Alam s/o Abdul Ghani (for opening of fake bank accounts) is concerned, statement of Mohammad Orangzeb Alam reveals that he and Mohammad Ismail were serving at M/s. Net Ideas, Block-10/A, Gulshan Iqbal, Karachi during 2008 and accused Haris Jawed Nawdhia was also an employee over there as a graphic designer.  While they all were serving Net Ideas, the staff used to visit Bank Al-Falah, Tariq Road Branch, Karachi for receiving their salaries from the account of Net Ideas.  Sometime if a staff member was busy in office, he used to request another colleague to collect his salary from the bank and for this purpose copy of CNIC was handed over as well.  It was for this purpose that they gave their CNICs to Mr. Haris Jawed Nawdhia for bringing their salary from the bank.  In the same year, accused Haris Jawed Nawdhia left the job of Net Ideas and became a Tour Manager of M/s. Air Time Travels, Karachi, as such it shows how he obtained the copies of CNICs of Mohammad Ismail and Mohammad Orangzeb Alam and handed them over to accused Zahid Younis Nawadia.

The above facts have revealed that in the first week of January, 2009, accused Zahid Younus Nawadia failed in opening of such fake accounts.  On 27.01.2009, he again visited MCB, Sunset Boulevard Branch, Karachi alongwith photocopies of CNICs No.42301-1061746-9 of Mohammad Ismail s/o Mohammad Ibrahim and 42401-3943684-9 of Mohammad Orangzeb Alam s/o Abdul Ghani including accounts opening forms duly signed for opening of two accounts in the name of above individuals showing them owners of M/s. Bismillah Dry Fruit, 24/B, Sasi Arcade, Block-7, Kehkashan Clifton, Karachi and M/s. Abdul Ghani Estate, K.M.C.-71, Block “L”, Tauhid Colony, Karachi respectively.  Accused Ghazenfar Abbas s/o Syed Shahzad Hussain, Branch Manager and accused Ghulam Asgher Manghi s/o Umaid Ali Manghi, Chief Teller/Passing Officer connived with accused Zahid Younis Nawadia, abused their position, evaded prescribed duties of bank officers and colluded in opening of alleged fake accounts fraudulently.  They knew that Mohammad Ismail and Mohammad Orangzeb Alam were not present in the bank and thus deliberately processed accounts opening forms by accepting spurious declaration about business and incorrect information of address/telephone numbers under the wishes of accused Zahid Younis Nawadia.  Hence opened fake accounts No.1000899/ title: Mohammad Ismail s/o Mohammad Ibrahim and 1000900 / title: Mohammad Orangzeb Alam s/o Abdul Ghani and allowed their operations by putting their signatures and stamps on all concerned bank documents in the capacity of processor / verification officers and final approving authority.  Resultantly, accused Zahid Younis Nawadia consecutively enjoyed operations of both accounts from 27.01.2009 to 24.02.2009 for illegal business of Hawala / Hundi and made following huge transactions through both accounts”.

4. The learned counsel further argued that the bail application was moved in the trial Court which was dismissed without appreciating the incriminating material against the applicant. It is further contended that the alleged suspicious transactions were made in the accounts opened by Zahid Younis Nawadia, who is absconder in this case with Ghazenfar Abbas, who was Bank Manager, M.C.B Sunset Boulevard Branch at that relevant time. It was further argued that the applicant never operated this account nor his signature is available on any account opening form.  It is further averred that neither the applicant has any role in any transaction or opening of bank accounts nor he gained any monitory benifit or advantage.  The co-accused Ghulam Asghar Mangi, who was the Chief Teller has also been granted bail by the trial court vide order dated 04.04.2013, whose signature is available even on the account opening form therefore, keeping in view the rule of consistency, the applicant is also entitled for bail whose case is on better footing and requires further inquiry. The Examination-in-Chief of one of the witnesses Mohammad Orangzaib has been recorded by the trial court in which also he has not alleged anything against the present applicant. While the evidence of Mohammad Ismail could not be recorded so far but his father Mohammad Ibrahim appeared before the trial court for evidence but he has also not implicated the present applicant. 

5. The learned Standing Counsel confirms that co-accused Ghulam Asghar Mangi has been granted bail by the trial court.  However when we asked the I.O to show the incriminating material collected by him during investigation against the present applicant, he informed us that except the allegation of supplying copies of CNIC to the main accused no other incriminating material is available at this stage. He also confirmed that nothing is on record at this stage to show that the applicant has obtained any personal gain or benefit out of proceed of bogus or fake bank accounts. He confirmed that the co-accused has been granted bail by the trial court who signed the account opening forms.

6. Heard the arguments. It is well settled proposition of law that deeper appreciation is not required to be made at bail stage but where the case is mostly based on documentary evidence, the court has to see what incriminating material has been collected by the I.O. to show the involvement of the accused. It is admitted fact that the name of the applicant is not mentioned in F.I.R. and the allegations against him in the challan as reproduced above do show that Mohammad Ismail and Mohammad Orangzaib Alam both were serving in M/s. Net Ideas in the year 2008 where the applicant was also employed as Graphic Designer.  In case staff could not be able to go personally for collecting their salaries from bank, they used to request their colleagues to collect their salaries and for this specific purpose, copies of CNICs were handed over by both the aforesaid persons to the applicant for drawing their salaries from bank and this is only reason due to which the applicant has been implicated or nominated in the final challan of the case with the allegations that he had passed on photocopies of the CNICs to Ghulam Asghar Mangi and Zahid Younis, who opened and operated the accounts. No incriminating material has been produced to show that the applicant was the beneficiary of any suspicious transaction.  Since 11.05.2015 the applicant is behind the bar. The I.O informed us that evidence of three witnesses have been recorded while evidence of thirty one more witnesses is be recorded by the trial court. After going through the police papers we are of the firm view that the case of the present applicant requires further enquiry and the prosecution needs to explore every avenue to prove the guilt and involvement of the applicant in the alleged offence committed in the year 2009. It is well settled that further inquiry is a question which must have some nexus with the result of the case for which a tentative assessment of the material on record is to be considered for reaching just conclusion. The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime. It is well settled that deeper appreciation of evidence is not permissible at bail stage simultaneously it is also well settled that object of trial is to make an accused to face the trial and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Accused is entitled to expeditious access to justice, which includes a right to fair an expeditious trial without any unreasonable and inordinate delay. The intention of law is that the criminal case must be disposed of without unnecessary delay. It is not difficult to comprehend that inordinate delay in imparting justice is likely to cause erosion of public confidence in the judicial system on one hand and on the other hand it is bound to create a sense of helplessness, despair feeling of frustration and anguish apart from adding to their woes and miseries. Reference can be made to orders authored by one of us (Muhammad Ali Mazhar-J) in the case of Ali Anwar Ruk, Abdul Jabbar, Syed Mansoor Ali and Sardar Amin Farooqui reported in 2014 SBLR 766, PLJ 2014 Karachi 251=2014 CrLJ 777, PLJ 2014 Karachi 254=2014 UC 784 and PLJ 2014 Karachi 268.

7. As a result of above discussion, the applicant is granted bail in Crime No.03/2012 lodged at P.S. F.I.A, S.B.C, Karachi subject to furnishing solvent surety in the sum of Rupees One Million with P.R. bond in the like amount to the satisfaction of the trial court.  The applicant is also directed to deposit his original valid passport in the trial court and he shall not leave the country without express permission of the trial court. The above observations are tentative in nature and shall not prejudice the case of the either party. The bail application is disposed of in the above terms.

Judge

Judge