IN THE HIGH COURT OF SINDH, KARACHI
Crl. Bail Application No. 709 of 2011.
Present:
Mr. Justice Irfan Saadat Khan.
Mr. Justice Muhammad Tasnim.
O R D E R
Date of hearing: 6th July, 2011
Applicant: Shahid Pervaiz through M/S. Syed Mehmood Alam Rizvi & Habib Ahmed, Advocates.
Respondent: The State through Mr. Muhammad Qasim, Standing Counsel alongwith Muhammad Iqbal, Inspector F.I.A., C.B.C., Karachi.
Complainant: Muhammad Abid through Mr. Z.U. Mujahid, Advocate.
Irfan Qureshi, Head of Auto Finance, Bank Al-Falah Limited, on Court notice.
MUHAMMAD TASNIM, J:- Applicant Shahid Pervaiz alongwith others was booked in F.I.R No.20/2011 dated 08.04.2011, under Section 409/419/420/468/471/109/34 P.P.C., P.S F.I.A., Crime Circle, Karachi. The applicant in first place, prior to submission of challan before the learned Trial Court, filed bail application, which was heard by the learned Presiding Officer Special Court (Offences in Banks) Sindh at Karachi, who dismissed the same per order dated 21.04.2011. The present applicant felt himself aggrieved against the aforesaid order and filed Criminal Bail Application No.504/2011 before this Court. Bail application of the present applicant alongwith other co-accused Murad Usmani was heard by the learned Division Bench of this Court, who after hearing the parties’ counsel and examining the material available on record dismissed both bail applications vide order dated 28.04.2011. It appears that present applicant, after submission of challan before the learned Trial Court, once again filed a bail application before the learned trial Court on the medical ground as also on merits. The bail application of the present applicant was heard by the learned Presiding Officer, Special Court (Offences in Banks) Sindh at Karachi, who vide order dated 04.06.2011 once again dismissed the bail application on both the counts. Against the aforesaid order present bail application has been filed on the medical ground so also on merits.
2. From the perusal of the record, it appears that after filing of present bail application an office note was put up by the Assistant Registrar Roster-I intimating the Court that criminal bail application filed by the present applicant so also other co-accused namely Murad Usmani being Criminal Bail Applications No.504 & 505 of 2011 respectively were heard and disposed of by a learned Division Bench of this Court. Office also intimated the Court that according to roster sitting during the summer vacation both the learned judges, who passed the earlier order on the bail application of the applicant, are not in sitting. In the circumstances matter was placed before the Honourable Senior Vacation Judge, who ordered that present bail application may be fixed before Special Division Bench of Honourable Judges, who had earlier dealt with the matter of the applicant after summer vacation as and when both the learned Judges are available at the Principal Seat. It further appears from the perusal of the record that an application under Section 561-A Cr.P.C was filed by the present applicant praying therein that due to non-availability of same bench in near future the present bail application be heard according to roster in terms of case reported as The State v. Zubair and others (P L D 1986 Supreme Court 173) and the judgment in Suo Moto Criminal Revision No.9 of 2001 (2002 S C M R 171). It further appears that aforesaid application of the applicant was taken up by the Honourable Senior Vacation Judge in chambers, who, after hearing the learned counsel for the applicant, ordered that since both the learned Judges, who had dealt with the bail application of the applicant earlier, are not available for a considerable time therefore, in the interest of justice, it was directed that this bail application be fixed as per roster. Accordingly matter was placed and heard by us.
3. Brief facts, as per F.I.R., are summarized that Assistant Director, FIA CBC, Karachi received complaints of M/s Muhammad Aabid and his son Babar alleging therein that Bank Al-Falah concerned officers dishonestly and malafidely sanctioned a number of auto loans on bogus documents, besides repossessed a good number of vehicles and auctioned the same on throw away prices to their favorites and in this process they also misappropriated leviable CED/FED taxes in billion of rupees. It is further alleged that consequent upon Enquiry No.01/2010, it has been prima facie established that Bank Al-Falah officials responsible for omission and commission of crime i.e. sanctioning bogus auto loans mentioned below in complicity and conniving with each other and thereby causing loss to the bank and gain to themselves:-
|
Sr |
Name of Applicant |
Vehicle number |
Proposal # |
Names of Branch Officers responsible |
Finance Amount |
Name of the Branch |
|
|
1 |
Raja Abdul Rahim S/o Muhammad Arif |
KM-4769 |
1495 |
Introducer
|
Stenley Joseph |
Loan Amount 2062500/- |
PECHS Branch |
|
42201-7470341-5 |
|
|
Branch Manager |
Murad Usmani |
Down Payment 687500/- |
||
|
2 |
Shahzad S/o Haji Salah Muhammad |
KM-4328 |
1518 |
Introducer
|
Menhaj Shamim |
Loan Amount 1875000/- |
Cloth Market Branch |
|
42000-7466966-9 |
Branch Manager |
Faisal Pingal, B.M. Wahid Dada, Area Manager |
Down Payment 625000/- |
||||
|
3 |
Shahzad S/o Haji Salah Muhammad |
KM-9746 |
1517 |
Introducer
|
Menhaj Shamim |
Loan Amount 1875000/- |
Cloth Market |
|
42000-7466966-9 |
Branch Manager |
Faisal Pingal, B.M. Wahid Dada, Area Manager |
Down Payment 625000/- |
||||
|
4 |
Khalid Rasheed S/o Abdul Rasheed |
AMC-068 |
4140 |
Introducer
|
Safdar Mehdi |
Loan Amount 8072100/- |
Main Branch |
|
42201-7512454-3 |
Branch Manager |
Shahid Pervaiz |
Down Payment 960900/- |
||||
The above facts constitute commission of offence punishable under Sections 409/419/420/468/471/109/34 PPC. Hence, the case was registered against accused persons namely Wahid Dada, Area Manager, Murad Usmani, B.M, Faisal Pingal, B.M, Shahid Pervaiz, B.M, Stenley Joseph, Minhaj Shamim, Safdar Mehdi and others and Insp. Zia Hassan Rizvi was appointed investigating officer.
4. Mr. Syed Mehmood Alam Rizvi, learned counsel for the applicant, at the very outset, submitted that he will not press the present bail application on the medical ground, but will press this bail application only on merits. He further submitted that the material placed with the challan was not in the knowledge of the applicant when first bail application was filed before the learned trial Court. He further submitted that first bail application was dismissed by the learned trial Court per order dated 21.04.2011 and Criminal Bail Application No.504/2011 before this Court was filed by the applicant on 22.04.2011, whereas challan was submitted before the learned trial Court on 23.04.2011. He further submitted that new facts have come to light after submission of challan, hence subsequent bail application filed by him should not have been dismissed by the learned Trial Court on merits being influenced by the observations made by the learned Division Bench of this Court in Criminal Bail Application No.504/2011. He further submitted that the name of the persons mentioned in the challan do not show any amount lying outstanding against them. He invited our attention to a number of documents filed by him alongwith bail application to justify that the accounts maintained by the persons mentioned in the challan show zero balance. Learned counsel further submitted that present bail application may be heard and decided without considering the earlier order passed in the Criminal Bail Application No.504/2011 as it is on medical ground so also on fresh grounds, which have now become available to the present applicant. Learned counsel lastly submitted that prima-facie there is no material available with the prosecution, which connects the present applicant with the commission of the offence. Learned counsel placed reliance on unreported orders passed by a learned Division Bench of this Court in Crl.B.A.No.1047/2011 (Mohammad Imran and another v. The State) dated 03.11.2010, Crl.B.A.No.1338/2010 (Mohammad Faisal and another v. The State) dated 23.12.2010 and Tariq Hashmi v. The State (S B L R 2009 Sindh (Karachi) 2007).
5. Conversely Mr. Z.U.Mujahid, learned counsel for the complainant has invited our attention to the statement/objections filed by the complainant to the bail application more particularly the order passed by learned Division Bench of this Court in Criminal Bail Application No.504/2011, the statements under Section 161 Cr.P.C of prosecution witnesses namely Syed Zakir Hussain, Fida Hussain and Syed Hassan Haider Rizvi and submitted that challan was submitted to the Court below on 23.04.2011, wherein in respect of Main Branch it is stated that 3782 cases of Auto Loan were sanctioned and 383 cases are in default and an amount of Rs.57 million is outstanding. He further pointed out from the challan that there are a number of cases wherein fake names, fake vehicles and fake registration numbers have been misused to grant loans. Learned counsel further submitted that on both the branches namely PECHS and the Main Branch one account each was being used for paying installments in respect of hundreds of loans advanced to a number of persons. He further submitted that applicant being Chairman of the Credit Committee is fully connected with the commission of offence. Learned counsel for the complainant further submitted that present bail application is not maintainable under the law as no new ground has been raised therein. He further submitted that learned Trial Court has rightly dismissed the bail application. Learned counsel further submitted that no doubt the first bail application was filed by the applicant before the learned Trial Court prior to submission of challan but during the pendency of the Criminal Bail Application No.504/2011 before this Court the challan was submitted. The complainant side through a statement dated 28.04.2010 containing copies of challan submitted to the learned trial Court, list of witnesses, statements of the prosecution witnesses, documents relating to the registration books and enquiry report conducted by the bank so also a number of statement of accounts were brought on the record of Criminal Bail Application No.504/2011. He further submitted that all such material was placed before the learned Division Bench in Criminal Bail Application No.504/2011 and was taken note of in the said bail application which was rightly dismissed by the learned Division Bench per order dated 28.04.2011. He further submitted that applicant did not approach the Honourable Supreme Court of Pakistan challenging the order passed by the learned Division Bench in Criminal Bail Application No.504/2011, which in his opinion has attained finality. Learned counsel further submitted that documents filed by the applicant alongwith the present bail application, if are considered, will amount to deeper appreciation of the record, which is not permissible under the law. He finally submitted that the present bail application being devoid of any merit may be rejected. Learned counsel in this regard has placed reliance on the case reported as The State v. Zubair and others (P L D 1986 Supreme Court 173).
6. Mr. Muhammad Qasim, learned Standing Counsel has adopted the arguments advanced by learned counsel for the complainant and has submitted that the present bail application filed by the applicant is not maintainable under the law and the same be dismissed accordingly.
7. Mr. Irfan Qureshi, Head of Auto Finance, Bank Al-Falah Limited also addressed the Court and explained the procedure for sanctioning of Auto Loans. He submitted that an application for car finance is to be made by the customer through Car Finance Officer who examines the application and if the same is found in conformity with the rules then he forwards the same to the Verification Department. The Verification Department thereafter verifies the record and then forwards the case for internal verification. Personal visits are made and thereafter, if approved by the internal verification, the matter is placed before the Operation Officer who prepares credit loan proposal in line with the bank’s policy. Thereafter the matter is referred to the Branch Credit Committee, which consists of three persons. The Applicant was the Chairman of the said committee whereas Aman Saeed and Aadil Behroz were its members. He stated that the loan cases relating to the main branch, were approved by the said Branch Credit Committee; of which the present applicant was the Chairman.
8. We have heard the learned counsel for the parties and have gone through the record so also the case law cited at the bar.
9. It is an admitted position that the first bail application was dismissed by the learned Trial Court on 21.04.2011, when challan was not submitted. On the very next day Criminal Bail Application No.504/2011 was filed before this Court and challan in the matter was submitted before the learned Trial Court on 23.04.2011. It is also an admitted position that present counsel for the complainant had placed copy of charge sheet, list of witnesses, statement of prosecution witnesses, copies of registration books of cars, statement of accounts and enquiry report of the Bank alongwith other documents on the record of Criminal Bail Application No.504/2011. The learned Division Bench of this Court after hearing the parties at length and examining the record observed as under:
“8. It is case where it is alleged that serious fraud has been committed in granting of auto loans to a number of fake persons. Such kind of crimes are called vide “White-collar Crimes”. They are totally different in nature from common crimes that take place in the society. In common crimes for example a couple of persons come, duly armed, give a proverbial hakkal or lalkara, firing takes place and few persons are murdered. Things remain obvious from the word go and processes followed for covering the tacks are known and well settled. In case of White-collar crime the primary instrument for commission for crime is creation of false documents. Documentary trial is created and if ever discovered for a long period crime remains hidden and many times culprits operate in a manner that famous Urdu poet Mustafa Zaidi called, wearing gloves on their hands: no fingerprints are left and it is difficult to trace them.”
10. In paragraph-9 of the above order the learned Bench while dealing with the point in delay in lodging the F.I.R has observed as under:
“9. In the present case what is alleged is (and we do not know whether allegations are true or not because this can only be decided by the trial Court after recording evidence), that registration number of vehicle were picked up and thereafter forged documents were created and loans were given to fake persons. In such branch, an account was opened in the name of the family members of an employee of the branch and installments in respect of loans were regularly deposited in respect of hundreds of loan applications through one single account. This crime remained hidden for a long time till the complainant blew the whistle. Therefore, contention of learned counsel that though loans are said to have been given during the period starting from 2005, FIR was registered in 2011 and the delay has remained unexplained is without any substance.”
11. Learned Division Bench while dismissing the Criminal Bail Application No.504/2011 dealing with the merits of the case has observed as under:
“10. Main thrust of the contentions of learned counsel in both the cases was that it was the gentlemen Incharge of getting NADRA verification (Safdar Mehdi and Stanley Joseph) who provided wrong information and the applicants being Branch Manager merely acted on the basis of information provided to them. A perusal of the challan indicates that it is not the happening in one case in each of the branch. There have been dozen of cases in each of the branches. 11 such cases have been specifically stated in the challan in respect of the Main Branch only. The fact that loans were granted to fake persons on fake documents in respect of fake vehicles (in each cases registration number of the vehicles stated on documents was not in respect of vehicle of the same make or model for which loan was granted; for example: AMC 068 for which loan was granted was stated to be Toyota Corolla in the name of Khalid Rasheed; AMC 068 actually was Honda Civic registered in the name of Tariq Rasheed. ALV 021 was stated to be a Suzuki in the name of S. Fahad Ahmed Rizwan but actually ALV 021 was registered in the name of Mohammad Sabir) is partly clear. In the challan’s details for as many as 60 such vehicles have been provided. The statement of P.W. Raja Abdul Rahim has been recorded and he stated that these documents reveal that he had obtained 4 loans for vehicles whereas actually he had not obtained any such loan. All this material, prima facie, reasonably connects the applicants to the alleged offence.”
12. While dealing with the point that few bank officers have been dismissed after taking disciplinary proceedings, but no action has been taken against the present applicant by the Bank, learned Division Bench has observed that domestic disciplinary action and criminal action are independent of each other and result of one could have no bearing whatsoever on the result of the other and has dealt with the issue in the following words:
“12. Learned counsel for applicants vehemently argued that no disciplinary action has been taken against applicants by the Bank whereas said Safdar Mehdi and Stanley Joseph have been dismissed after disciplinary proceedings and present applicants in fact have been promoted. Firstly, it is established law that domestic disciplinary action and criminal action are independent of each other and result of one could have no bearing whatsoever on result of the other. If any authority is needed one may refer to Inspector General of Police Punjab, Lahore and others v. Mohammad Tariq (2000 PLC 725), Executive Engineer and others v. Zahid Shareef (2005 PLC [C.S] 701, Government of NWFP and 2 others v. Auranzeb (2003 PLC [C.S.] 167, Arif Ghafoor v. Managing Director, Heavy Mechanical Complex Taxla and others (PLD 2002 SC 13).
13. Result of the above discussion is that these bail application are dismissed.”
13. Now taking up the submission of learned counsel for the applicant that he presses the bail application only on merits on fresh grounds which were agitated before the learned Trial Court so also before this Court. It appears that while arguing the earlier bail application before this Court being Criminal Bail Application No.504/2011 the complainant side has brought on record statements under Section 161 Cr.P.C so also copy of charge sheet, enquiry report and other allied documents which were considered and bail application was rejected as aforesaid. The documents annexed by the applicant with present application, if considered, will amount to deeper appreciation of the record. It is a settled proposition of law that at the bail stage deeper appreciation of the record could not be gone into, but only tentative assessment is to be made just to find out as to whether present applicant is connected with the commission of offence or not. Keeping in view the above settled legal position the entire record placed before the learned Division Bench was scanned in Criminal Bail Application No.504/2011, and the learned Division Bench had dismissed the bail application as aforesaid. No new ground has been raised by the learned counsel for the applicant in the present bail application. From the tentative assessment of the record, prima-facie, it will be noticed that name of the applicant appears in the F.I.R, the prosecution witnesses named hereinabove have implicated the present applicant with a specific role in commission of offence. The Bank Officer appeared today before the Court admitted that present applicant was the Chairman of Credit Committee and the loan approved by such Committee bears the signature of the present applicant, in the circumstances present applicant is fully connected with the commission of the offence.
14. The scope of entertaining the subsequent or second bail application has already been dealt with by the Honourable Supreme Court of Pakistan in the case of The State v. Zubair and others (P L D 1986 Supreme Court 173), wherein their lordships while dealing with the above issue has observed as under:
“8. It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely, a ground which dod not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent bail application. We may also point out, with respect to the learned Judge, who dealt with the second bail application that the mere fact that the learned Judge who had rejected the first bail application of the respondents with the observation that as far as the remaining petitioners (the respondents herein) are concerned no case had been made out for their release on bail, does not mean that the application had not been disposed of on merits. It must be assumed that he had considered all the pleas or grounds raised by the applicant’s counsel before him and that the same had not found favour with him. It may be pointed out, with great respect, that the notion that each contention raised before the Court in a bail application must be dealt with separately or repelled by recording elaborate reasoning, is totally misconceived. We are of the view that in the present, case the leaned Judge who dealt with the second bail had, in fact, embarked on a review of the order of the learned Judge who had earlier dismissed the first bail application.”
15. Following the dicta laid down by the Honourable Supreme Court of Pakistan in the above referred judgment, we do not find any merit in the present bail application and the same is accordingly dismissed as no fresh or new ground was brought to our notice during the arguments by the Learned Counsel for the applicant except reference to documents filed by him alongwith the bail application.
16. The orders/judgments cited by the learned counsel for the applicant have been considered and the same are distinguishable on facts and do not advance the case of the applicant.
17. Needless to mention that any observation made in this order will not affect the pending trial before the learned Trial Court and the same may be conducted and decided strictly in accordance with law and the evidences available on the record.
18. The learned trial Court is directed to conclude the trial preferably within a period of three months and pass judgment strictly in accordance with law, under intimation to this Court.
19. For the foregoing reasons, bail application is dismissed.
Karachi, July 11, 2011.
Riaz/P.A*