IN THE HIGH COURT OF SINDH, KARACHI

Criminal Bail Application No.148 of 2018

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Applicant: Asif Farooqi son of Muhammad Bashir Farooqi, through Mr. Abid S. Zuberi, advocate

Respondent: The State through Mr. Ashfaq Rafiq Janjua, Assistant Attorney General

Date of hearing: 20.02.2018

Date of announcement: 27.02.2018

O R D E R

NAIMATULLAH PHULPOTO, J.-- Applicant/accused Asif Farooqi son of Muhammad Bashir Farooqi has applied for post arrest bail in F.I.R. No.16 of 2017, registered against the accused at P.S. FIA, Commercial Banking Circle, Karachi for offences under sections 420, 468, 471, 109, 34, PPC.

2. Brief facts of the prosecution case as disclosed in the F.I.R. are reproduced as under:

“Received a written complaint bearing No.MD/SSWMB/Misc./ 1181/2017 dated 29.11.2017 lodged by Dr. Atur Das Sajnani, Managing Director, Sindh Solid Waste Management Board, Government of Sindh, Bungalow No.13, Al-Hamra Housing Society, Shaheed-e-Millat Road, Karachi from the Director FIA Sindh Karachi vide letter No.FIA/DS/FIR-Permission/New/2017/CBCK/B-16061 dated 30.11.2017, which is reproduced as under:

No.MD/SSWMB/Misc./1181/2017

Government of Sindh

Dated: 29^th November 2017

The Director,

Federal Investigation Agency (FIA), Karachi

Subject: SUBMISSION OF FAKE BANK DEMAND DRAFTS / PAY ORDERS

It has been reported by the Deputy Director (Finance), Sindh Solid Waste Management Board, that a number of Bank Instruments (Bank Drafts / Pay Orders) submitted as ‘Bid Security’ or ‘Performance Security’ by the firms / companies shown against each, have been found / declared as ‘FAKE’ by the concerned banks (details of total fake pay orders of Rs.27,903,495/- are mentioned in the F.I.R.)

On further scrutiny, it was found that CEO of the firms / companies that submitted these Fake Bank Instruments (Bank Drafts / Pay Orders) during the tendering of Mr. Asif Farooki, Chairman / Chief Executive Officer of M/s. Waste Busters & M/s. Ice Pak.

You are requested to look into the matter and direct the concerned to take appropriate action as per against the person who has submitted these fake Bank Instruments to obtain tenders from Government.

This may please be treated as ‘Very Urgent’

Sd/-

Managing Director Sindh Solid Welfare Management Board

Government of Sindh (Dr. A. D. Sajnani)

On preliminary investigation, accused Asif Farooki, Chairman/ Chief Executive Officer of M/s. Waste Busters, M/s. Ice Pak and M/s. Euro Consultant, Karachi, failed to justify his position rather admitted to have managed above said fake bank instruments/pay orders in connivance of his associates and submitted to Sindh Solid Waste Management Board, Karachi to get criminal objectives for obtaining tenders from Government. Hence, offences of fraud, forgery and abetment, punishable under sections 420, 468, 471, 109, 34 PPC have been established. Hence, this case is accordingly registered against accused Asif Farooki son of Muhammad Bashir Farooki, CNIC No.35202-6425757-9, resident of House No.105/1, Khayaban-e-Bahria, Phase-V, DHA, Karachi, Chairman/Chief Executive Officer of M/s. Waste Busters, M/s. Ice Pak and M/s. Euro Consultant, Karachi and others under the orders of competent authority. Effected the arrest of accused Asif Farooki son of Muhammad Bashir Farooki, CNIC No.35202-6425757-9, resident of House No.105/1, Khayaban-e-Bahria, Phase-V, DHA, Karachi, Chairman/Chief Executive Officer of M/s. Waste Busters, M/s. Ice Pak and M/s. Euro Consultant, Karachi in the above case accordingly. Investigation has been taken up by the undersigned.

Sd/-

( BILAL AHMED )

Sub-Inspector FIA CBC

Karachi”

3. It appears that on further scrutiny it was found that Chief Executive of the Firms/Companies has submitted the banking instruments/pay orders. During tendering, applicant/accused Asif Farooki was the Chairman/ Chief Executive Officer of M/s. Waste Busters, M/s. Ice Pak and M/s. Euro Consultant, Karachi. Applicant/accused was arrested on 30.11.2017. Investigation Officer submitted interim challan against accused under Sections 420, 468, 471, 109, 34, PPC.

4. Applicant/accused moved bail application before learned Special Court (Offences in Banks) Sindh at Karachi, the same was rejected vide orders dated 11.01.2018. Hence, the applicant/accused approached this Court.

5. Mr. Abid S. Zuberi, learned counsel for applicant/accused Asif Farooqi mainly contended that applicant/accused had no knowledge regarding fake/forged banking instrument/pay orders, when he came to know being Head of the Firms, he made inquiry and found that Accountant of the Firm, namely, Malik Atique in collusion of the office of Sindh Solid Waste Management Board had managed the same. It is further argued that applicant/accused has replaced the call deposit/pay orders/performance security on 04.04.2017 and 16.05.2017, further argued that applicant/accused Company has filed Civil Suit No.1641 of 2017 before Senior Civil Judge, Karachi East-XII, regarding replacement of fake pay orders. It is argued that no loss has been caused to the Government Exchequer. Mr. Zuberi lastly contended that no cheating has been committed by the applicant/accused and case requires further inquiry. In support of his contentions, he relied upon the following authorities:

1. Qurban Ali vs. The State and others (2017 SCMR 279)

2. Muhammad Tanveer vs. The State (PLD 2017 SC 733)

3. Muhammad Nawaz vs. The State through NAB (PLD 2008 SC 438)

4. Manzoor and Others v. The State (PLD 1972 SC 81)

5. Nisar Ahmed vs. The State and others (2014 SCMR 27)

6. Manzoor Hussain V. The State (2011 SCMR 902)

7. The State vs. Rub Dino Shaikh and another (2003 SCMR 341)

8. Jafar alias Jafari vs. The State (2012 SCMR 606)

9. Mst.Askar Jan & others v. Muhammad Daud & others (2010 SCMR 1604)

10. Abdul Aziz Khan Niazi Vs. The State through NAB (PLD 2003 SC 668)

6. Mr. Ashfaq Rafiq Janjua, Assistant Attorney General, argued that fake banking instruments/pay orders were tendered by applicant/accused Asif Farooqui, Chairman/ Chief Executive Officer of M/s. Waste Busters, M/s. Ice Pak and M/s. Euro Consultant, Karachi. Learned Assistant Attorney General further argued that applicant/accused has signed various documents as well as bidding documents. It is submitted that when F.I.R. was registered against accused for submitting forged pay orders, he managed replacement of call deposits / pay orders / performance security amounts on 04.04.2017 and 16.05.2017, whereas F.I.R. was registered against him on 30.11.2017. It is further submitted that fake call deposits/pay orders/performance securities were produced by applicant/accused being Head of the Firms/Companies and he has committed the alleged offences. Lastly, it is argued that matter is still under investigation. Assistant Attorney General opposed the bail application.

7. We have perused the contents of F.I.R. No.16/2017, statements of PWs recorded under section 161 Cr.PC, material collected during investigation and cited precedents.

8. PW Shamsuddin Katpar in his 161, Cr.PC statement has stated that he is working as Deputy Director Finance in Sindh Solid Waste Management Board, Government of Sindh. Applicant/accused Asif Farooqi, Chairman/ Chief Executive Officer of M/s. Waste Busters, M/s. Ice Pak and M/s. Euro Consultant, Karachi, had participated in different tenders with Sindh Solid Waste Management Board Karachi during the period 2016-2017 and 2017-2018 and succeeded as he offered lowest rates against other contractors. As per policy, Finance Section of Sindh Solid Waste Management Board deposited the performance security pay orders in SSWMB account at Sindh Bank, Kahkashan Clifton Branch, Karachi. After a few days, Bank informed to the Finance Section of SSWMB that said pay orders were fake and were not issued by MCB and ABL Lahore. The matter was brought to the knowledge of the Sindh Solid Waste Management Board and it was decided to get the verification of bid security pay orders. Pay orders were referred to MCB and ABL Lahore for verification which too have been found fake and fictitious in all respects. He has further mentioned that written complaint was made on 29.11.2017 to the Director, FIA Sindh Karachi against accused Asif Farooqi and others for legal action in the view of preparation and using of fake pay orders favouring SSWMB Karachi, to defraud the Government of Sindh, to get criminal objectives.

9. Learned advocate for applicant/accused has mainly contended that applicant/accused had replaced call deposits / pay orders on 04.04.2017 and 16.05.2017 when he came to know about the fake call deposits. Prima facie, applicant/accused fraudulently and dishonestly used the forged call deposits/pay orders, after verification, the same were found forged. F.I.R. was registered on 30.11.2017 but applicant/accused replaced the call deposits/pay orders after about four months. Investigation Officer present in Court has shown us the signatures of the applicant/accused on various documents, which apparently show that applicant/accused obtained tenders from the Sindh Solid Waste Management Board, Government of Sindh. Investigation Officer further submits that he has submitted the interim challan and he requires 2/3 weeks to submit the final report. According to Investigation Officer, he will collect record from Banks regarding involvement of applicant/accused in this case.

10. It is apparently established that applicant/accused Asif Farooqi was CEO/Chairman of M/s. Waste Busters, M/s. Ice Pak and M/s. Euro Consultants and had participated in different tenders with Sindh Solid Waste Management Board Karachi, during the period 2016-2017 and 2017-2018 and succeeded as he offered lowest rates against other contestants. It is alleged that accused Asif Farooqi produced pay orders with bids to SSWMB as bid securities against different works. As per policy, Finance Section of SSWMB deposited the performance security pay orders in SSWMB account at Sindh Bank, Kahkashan Clifton Branch, Karachi. After a few days, Bank informed that said pay orders were fake and were not issued by MCB and ABL Lahore. It is matter of record that fake pay orders were also recovered from his house/office during investigation. It is apparently unbelievable that Accountant of applicant/accused submitted fake pay orders in all cases without his knowledge and consent. We need not undertake the exercise of deeper appreciation of evidence/material collected during investigation as it may prejudice the case of either party during trial as held in the cases of Syed Maqbool Muhammad vs. The State (2005 SCMR 635), Asif Ayub vs. The State (2010 SCMR 1735) and Syed Lakhat-e-Hasnain versus The State (2010 SCMR 855). Considerations for grant or refusal of bail in offences in respect of Banks are different from ordinary crimes and offences in respect of Banks require speedy trial under the law. Prima facie, on the basis of material collected during investigation against applicant/accused, offences under section 420, 468, 471, 109, 34 PPC are made out. Case is still under investigation.

12. For the above stated reasons, applicant/accused Asif Farooqi is not entitled for concession of bail at this stage. Therefore, bail application is without merit and the same is dismissed. However, applicant/accused would be at liberty to repeat the bail application before trial court after submission of final report.

13. Needless to mention here that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced by the same while deciding the case on merits.

J U D G E

Gulsher/PS