THE HIGH COURT OF SINDH AT KARACHI

Criminal Bail Application No.560 of 2013

Present: Ghulam Sarwar Korai, J. Naimatullah Phulpoto, J.

Applicant: Khadim Hussain Palh through Mr. Shahab Sarki, Advocate.

Respondent: The State through Mr. Muhammad Ashraf Khan Mughal, Assistant Prosecutor General Sindh.

Date of Hearing : 03.09.2013

Date of announcement: 09.09.2013

O R D E R

NAIMATULLAH PHULPOTO, J.- Applicant/accused Khadim Hussain Plah seeks post arrest bail in Crime No.57/2011, registered at P.S. F.I.A. Commercial Bank Circle Karachi, under Section 420 PPC r/w Section 5 (2) of the PCA Act of 1947.

2. Brief facts of the prosecution case as unfolded in the F.I.R. are that consequent upon the enquiry No.95/2010 of F.I.A. CBC Karachi initiated under the order of competent authority on the basis of joint complaint dated 05.05.2010 filed by Mr. Siddique Paul s/o Sardar & Mrs. Parveen Akhter d/o Sardar Maseeh resident of Karachi, it transpired that in the year of 2007 applicant / accused Khadim Hussain F. Palh while he was posted as Assistant Vice President of Allied Bank Limited Abdullah Haroon Road Branch Karachi, with intent to cheat/defraud the complainants had persuaded them to invest an amount in the Bank for handsome profit. It is alleged that applicant / accused Khadim Hussain F. Palh AVP/ABL had received Rs.10,00,000/- and Rs.14,00,000/- from the complainant Siddique Paul & Mrs. Parveen Akhtar respectively and issued two separate receipts on letter pad of ABL under his signature dated 08.02.2007. Copies of the receipts have been placed on record. It is further alleged that applicant/accused Khadim Hussain later on failed to fulfill the commitment and issued bogus cheques to the complainant of his own accounts No.0111802458 ABL Trade Tower Branch Karachi of different dates, which were bounced/dishonoured by the Bank on account of insufficient funds. Thereafter, complainants lodged F.I.R. Nos.13/2010 and 21/2010, under Section 489-F P.P.C. at P.S. Artillery Maidan Karachi against applicant / accused Khadim Hussain F. Palh. It is further stated that applicant / accused being AVP / ABL had cheated complainant by misusing his official position and introduced incentives for handsome profit on investment and extorted huge finances from the complainants. Separate F.I.R. was lodged against the applicant/accused under the above referred sections.

3. During investigation, applicant/accused could not be arrested by the Assistant Director, FIA, CBC, Karachi and challan was submitted under section 512 Cr.PC against the applicant/accused Khadim Hussain Palh, Ex-Assistant Vice President of Allied Bank Limited, Abdullah Haroon Road Branch, Karachi in the Special Court (Offences in Banks) Sindh at Karachi, for offence under sections 420 PPC read with section 5 of the PCA Act of 1947.

4. Applicant/accused applied for pre-arrest bail before this Court, the said criminal bail application bearing No.1464 of 2011 was declined vide orders dated 15.05.2013.

5. Applicant/accused was subsequently arrested and he applied for post arrest bail before the learned Special Court (Offence in Banks) Sindh at Karachi, the plea of bail was refused to him vide orders dated 23.05.2013. Thereafter, applicant/accused approached this Court.

6. Mr. Shahab Sarki, learned advocate for the applicant/accused contended that regarding the same offence FIRs bearing Nos.121/2010 and 123 of 2010 under section 489-F PPC were lodged against the present applicant/accused. He submitted that law requires only one trial for offences arising out of same transaction. He has further submitted that suit for recovery has also been filed by complainant Siddiq Paul against applicant/accused. Mr. Sarki argued that documentary evidence has been manipulated against the applicant/accused to involve him in this case. Lastly, he has submitted that there was inordinate delay in filing of complaint and registration of F.I.R. without explanation. He has submitted that case against the applicant/accused requires further inquiry. In support of his contentions he has relied upon the following reported cases:

(i) Sabir versus the State (2000 YLR 2173)

(ii) Rehmat Khan versus D.G., Intelligence and Investigation (Customs and Excise) (PLD 2000 Karachi 181)

(iii) Badar Alam Bacjiani versus the State through Chairman NAB and another (2010 PCr.LJ 1988)

7. Mr. Muhammad Ashraf Khan Mughal, learned D.A.G., argued that applicant/accused used official letter pad of Bank and amount paid by the complainant was deposited by him in his account. He has submitted that there is documentary evidence of cheating against the applicant/accused to connect him in this case. Learned D.A.G. argued that applicant/accused absconded away during investigation. There is no fresh ground in bail application. He has strongly opposed the bail application.

8. We have carefully heard learned counsel for the parties and perused the relevant record.

9. Prima facie, sufficient documentary proof has been collected during investigation to connect the applicant/accused in the commission of offence, for the reasons that applicant/accused was serving as Assistant Vice President in Allied Bank Limited and with intent to cheat/defraud the complainant/persons he persuaded them to invest amount in the Allied Bank Limited on the better profit and received Rs.1,000,000/- and Rs.14,00,000/- from Siddique Paul and Mrs. Parveen Akhter, respectively and issued receipts on letter pad of ABL under his signature. Applicant/accused could not fulfill his commitments, he issued bogus cheques of his account and the same were dishonoured. F.I.R. under section 420 PPC read with section 5(2) of the PCA Act, 1947 was lodged against applicant/accused. Consequently, F.I.Rs. Nos.13/2010 and 21/2010 were registered against him at Artillery Maidan, under Section 489-F P.P.C. Contention of Mr. Sarki that offences were committed in same transaction but three FIRs were registered, which is contrary to law. It may be mentioned here that section 26 of the General Clauses Act reads as under:

“Whether an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence.”

It will thus appear that under section 26 of the General Clauses Act there is no bar on the simultaneous prosecution; what is prohibited is duplicate punishment and not the trial. The concept of double jeopardy is attracted where accused has been tried for the offence charged in the competent Court and there is judgment of conviction or acquittal, mere lodging of F.I.Rs. will not attract the rule of jeopardy. Reliance can be placed on the cases of Muhammad Ashraf and others vs. the State reported in 1995 SCMR 626 and Abdul Hafeez vs. Additional District Judge-VII, South Karachi and two others, reported in PLD 2009 Karachi 350. Moreover, facts of the instant case are entirely different and applicant/accused has been challaned in this case for offences under section 420 PPC read with section 5(2) of the PCA Act, 1947. Another contention of Mr. Sarki that civil proceedings are pending against applicant/accused, it is settled principle of law that criminal proceedings are entirely different from civil proceedings. Record reveals that applicant/accused deliberately avoided to join the investigation as such he loses some of his normal rights guaranteed by the procedural as well as by the substantive law. Moreover, abscondance has not been explained. No fresh ground has been urged in this bail application.

10. For the above stated reasons, we hold that prima facie there is sufficient material to connect the applicant/accused Khadim Hussain Palh in the commission of offence. No case for grant of bail is made out. Consequently, instant bail application is dismissed. However, trial Court is directed to decide the case expeditiously.

11. Needless to mention here that observations made herein above are tentative in nature, learned Special Judge (Offences in Banks) Sindh at Karachi shall not be influenced by such observations while deciding the case on merits.

JUDGE

JUDGE

Gulsher/PA