ORDER SHEET

THE HIGH COURT OF SINDH AT KARACHI

Criminal Bail Application No.35 of 2020

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Date Order with Signature(s) of Judge(s)

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Mr. Justice Abdul Maalik Gaddi

Justice Mrs. Rashida Asad

Applicant : Mst. Adeeba Khan wife of Adil Khan

through M/s. Muhammad Saleem

Mangrio and Muhammad Jamil, Advocates.

Respondent : The State/FIA through Mr. Muhammad

Ahmed, Assistant Attorney General.

Complainant : Ali Faizan son of Muhammad Ashfaq,

through M/s. Mohsin Shahwani and Hamid A. Memon, Advocates.

Date of hearing : 06.04.2020

Date of Order : 06.04.2020

ORDER

Abdul Maalik Gaddi, J. – Accused/ Applicant namely, Mst. Adeeba Khan involved in case F.I.R No.19 of 2019 under Section 409/468/471/477-A/109, PPC read with Ordinance No.IX of 1984 (Offences in Banks), police station FIA/CBC, Karachi, after being refused concession of bail by the Special Court (Offences in Banks) Sindh at Karachi has come to this Court for the same relief.

2. The allegations against the applicant/accused is that she while holding post as Branch Manager of Dubai Islamic Bank Limited, DHA, Phase-IV, Karachi, she along with her senior management with their joint consent, embezzled/cheated/fraud of Rs.47.5 Million against Term Deposit Certificate (TDR) invested by the complainant during 2016 to 2019 in his account bearing No.0228086001 being maintained at aforesaid bank.

3. Mr. Muhammad Saleem Mangio, learned Counsel for the applicant/accused Mst. Adeeba Khan has contended that applicant/accused is a lady and has been falsely implicated in this case by the complainant; that applicant/accused resigned from Bank Al-Falah on 25.09.2019 and there is no likelihood that the applicant will tamper the evidence; that investigating officer searched the house of applicant on 21.11.2019 and no recovery was made; that none of the evidence connects the applicant with the commission of the alleged embezzlement during the period 2016-2018; that the applicant resigned from DIBL in 2017, thus, she is not responsible for any offence committed after her resignation; that during the period between 26.12.2016 till March 2017 the applicant was not posted at DHA, Phase-IV Branch of DIBL, but she was posted at DHA, Phase-I Branch, therefore, there is no apprehension of absconsion of the applicant; that the applicant has been harassed by the complainant prior to initiation of present proceedings and regarding illegal harassment, the complaint against complainant is pending before the learned J.M. Karachi South and Civil Suit No.1503 of 2018 is also pending before this Court; that instant proceedings are based on the malafide on the part of the complainant; that complaint and enquiry notice alleges the embezzlement against the accused lady, Mohid Mazhar and senior management, hence, it is uncertain that who had committed alleged embezzlement; that official of DIBL visited the house of applicant on 08.09.2019 and conducted search but no recovery was affected; that pay orders are used to be issued by the cashiers and authorized by the Operation Manager; that Branch Manager has nothing to do in the process of making pay orders; that the applicant has nothing to do with the transactions taken place after her resignation; that the pay orders were prepared after the tenure of the applicant; the alleged term deposit certificate is not seized by the prosecution; that the balance certificates bear the dates after resignation of the applicant; that the date of resignation is deliberately not mentioned in the challan; that the officials who prepared instruments have not been named as the applicant; that the case has been registered due to connivance of successor of applicant and the victim; that victim and beneficiaries are investors running illegal business; that customer used to receive account statements, sms and email alerts, therefore, it cannot be believed that the complainant was ignorant of the transaction from the year 2016 to 2019; that complainant called the accused lady on 06.09.2019 for opening of new account, when she visited the premises and she was illegally confined and cheques of Rs.9 crores were forcibly obtained; that the passport and CNIC of the applicant were confiscated; that the case of applicant is of further inquiry, therefore, she is entitled for grant of bail. In support of his contentions, learned Counsel has relied upon the following case laws:-

(i) Saeed Ahmed v. The State reported in 1996 SCMR 1132;

(ii) Tariq Bashir and 5 others v. The State reported in PLD 1995 Supreme Court 34;

(iii) Zaigham Ashraf v. The State and others reported in 2016 SCMR 18;

(iv) Aman Ullah v. The State and another reported in 2017 YLR 1263;

(v) Muhammad Bilal Anwar Shakir v. The State reported in 2017 MLD 1957;

(vi) Hussain Haqani v. The State reported in 2000 P.Cr.L.J. 161.

4. Mr. Muhammad Ahmed, learned Assistant Attorney General, assisted by Mr. Mohsin Shahwani, learned Counsel for complainant, while opposing this bail application submits that name of the applicant/accused is appearing in FIR and the complaint; that the account of Imran/Faiza Sabrani was opened and operated by accused lady wherein she had mentioned her own residential address and mobile number; that beneficiaries of the pay orders Abdullah Khan, Burhan Ahmed, Khalid, Jan Muhammad and Muzafar Talpur are not acquainted with the complainant but they know accused lady; that accused lady used to borrow different amounts from the beneficiaries who are now PWs and later on adjustment was made through pay orders issued from the account of the complainant on the basis of forged application forms, post dated cheques used to be given by the accused lady to PWs against the amount which she borrowed; PW Osama has implicated the present accused through whom she used to deposit profit of term deposit certificate in the account of victim on her instructions, such deposit slips have also been seized; that accused lady was held responsible in the internal enquiry conducted by the bank; that the accused lady has misappropriated the amount by adopting this modus operandi through parallel banking; that the mobile phone of lady accused was sent forensic which contains balance certificates issued to the victims; hence, prayed for rejection of bail. In support, he has relied upon the following case laws:-

(i) Chaudhry Shujat Hussain v. The State reported in 1995 SCMR 1249;

(ii) Chief Manager/Attorney, Allied Bank Limited v. Shahid Ullah and others reported in PLD 2009 SC 446;

(iii) Muhammad Haseeb Khan and another v. The State through FIA CBC, Karachi, reported in 2012 P.Cr.L.J. 1;

(iv) Muhammad Hanif S. Kalia and 2 others v. The State reported in 2009 P.Cr.L.J. 1192;

(v) Ahmed Khan v. The State reported in 2013 YLR 2233.

5. We have heard the learned counsel for the parties at considerable length and have also examined the police file, so made available before us.

6. As regard to the contentions of learned Counsel for the applicant that since she is a woman, therefore, she deserves the leniency of bail in view of Section 497(1), Cr.P.C., we are not convinced with this contention for the reason that this provision of law does not entitle every women to be released on bail, who is involved in non-bailable offence. No doubt, generally the Courts take lenient view while dealing with the bail applications of women and exercise discretion in their favour in appropriate cases in the light of the first proviso to Section 497, Cr.P.C. However, this discretion is to be exercised keeping in view the nature of the offence as well as facts and circumstances of each case.

7. As per record, the applicant is specifically nominated in FIR with her specific role; such version of FIR is corroborated by documentary evidence as well as statement of witnesses recorded under Section 161, Cr.P.C. The offence under Section 409, PPC with which applicant charged is a scheduled offence falling under the Offences in respect of Banks (Special Courts) Ordinance, 1984, as same has been committed in connection with the business of a bank and the same falls within the prohibitory clause of Section 497, Cr.P.C. In such like cases, refusal is a rule and acceptance is an exception. Learned Counsel for the applicant has not been able to point out any special feature of the case which may bring this case in any of the exceptions.

8. As per record, the applicant is involved in a heinous offence. Applicant Mst. Adeeba Khan along with her senior management has caused loss of Rs.4.75 Million to the account holder/complainant which tantamount to his financial murder. Not only this, the said offences have also impaired the trust of the people in banking system. In this way, the alleged crime can safely be considered to be a crime against the whole society and granting bail to such like persons would amount to encourage the heinous crimes in the society.

9. Under the law, while deciding bail applications, deeper appreciation of evidence is not warranted and only bird’s eye view is to be made from tentative assessment of the material available on record. It is noted that in this case in hand, applicant was holding post as Branch Manager Dubai Islamic Bank Limited, DHA, Phase-IV, Karachi, on the relevant time and it seems that without her active connivance with other bank officials, the alleged offence could hardly be successfully completed. Moreover, after culmination of investigation, investigating officer of the case has found the applicant guilty for the commission of the offence which is serious and heinous in nature. It is also noted that the prosecution is equipped with sufficient incriminating material to connect the applicant with the commission of offence. Learned Counsel for the applicant has failed to show that involvement of the applicant is product of malafide or ill will on the part of complainant or investigating agency.

10. During the course of arguments, learned Assistant Attorney General, assisted by learned Counsel for the complainant has pointed out that lady accused (Mst. Adeeba Khan) is also involved in crime No.20 of 2019 in which complainant is a bank. He has also filed statement showing that this applicant is also involved in thirteen other criminal cases, therefore, according to him, the applicant is habitual of committing forgery and fraud. When confronted this fact, learned Counsel appearing on behalf of applicant submits that the said cases are also false and also having different facts, which have no nexus with this case.

11. As observed above, sufficient material is available on record against the applicant, therefore, the prima facie applicant appears to be involved in this offence. The net result that flows from the above discussion is that applicant does not deserve to be released on bail. Consequently, finding no force in the instant bail application, the same is hereby dismissed.

12. The case laws cited by learned Counsel for the applicant in support of his contentions, in the first place, are of no consequences, whereas, the applicant Mst. Adeeba Khan is also facing a trial under Crime No.20 of 2019 of police station FIA CBC Karachi under Section 409/420/468/471/109, PPC. Even otherwise, the precedents in bail matter are of no help to a party, as it varies from case to case depending upon the facts of each case. The Court has to examine as to whether accused has made out a case of further inquiry or not.

13. Before parting with this order, we would like to mention here that observation, if any, in this order is tentative in nature and shall not effect the merits of the case. As observed above that the case in hand pertains to embezzlement of huge amount by the applicants, therefore, trial Court is directed to proceed the matter expeditiously and decide the same as early as possible as per law and no unnecessary adjournment shall be granted to either side; so also, compliance report be submitted to this Court through MIT-II.

14. This bail application was heard and dismissed through our short order dated 06.04.2020 and these are the detailed reasons thereof.

JUDGE

Faizan A. Rathore/PA*