ORDER SHEET

HIGH COURT OF SINDH, KARACHI

Cr.Bail Application No.1028 & 1142 of 2011

Date Order with signature of Judge

Present: Mr. Justice Gulzar Ahmed

Mr. Justice Muhammad Ali Mazhar

Cr. Bail Application No.1028/2011

Muhammad Haseeb Khan

versus

The State

Cr.Bail Application No.1142/2011

Syed Hashim Raza,

versus

The State

Date of hearing: 03.11.2011.

Ms. Ismat Mehdi, Advocate for the applicant in Cr.Bail Application No.1028/2011.

Mr. Shahab Sarki, Advocate for the applicant in Cr. Bail Application No.1142/2011.

Mr. Khaleeq Ahmed, Advocate for the complainant.

Mr. Ashiq Raza, DAG.

Muhammad Ali Mazhar, J. :- The applicants have applied post arrest bail in crime No.24/2011 lodged at police station FIA, CBC Karachi under Section 409, 420, 468, 471, 477-A, 34 PPC read with Section 5 (2) of the Prevention of Corruption Act, 1947.

1. Brief facts as narrated in the FIR are that on 17.05.2011, complainant Muhammad Majeed Awan, AVP/Manager, National Bank of Pakistan, KDA Civic Center Branch, Karachi lodged the complaint that daily income tax and withholding tax on motor vehicle tax is received by Excise & Taxation Department on their counters, as per practice amount is to be deposited in the National bank of Pakistan KDA Civic Center Branch, Karachi by the same evening at about 6-7 p.m. which was being received by Muhammad Haseeb Khan, Operation Manager and Syed Hashim Raza Rizvi, Senior Head Cashier, who were bound to transfer the said amount to National bank of Pakistan, Income Tax Building Branch, Karachi. It was a legal obligation of the Senior Head Cashier Syed Hashim Raza Rizvi to account for the said amount into respective accounts daily and it was also the duty of Muhammad Haseeb Khan, Operation Manager to verify that the amounts are being transferred to the Link Branch accordingly. The allegations in the FIR are that the Assistant Commissioner, Inland Revenue Zone-V, addressed a letter on 19.04.2011 asking the Manager Operation Muhammad Haseeb Khan to confirm whether the amount for the period from July 2010 to March 2011 had been deposited into Federal Treasury and he also asked to provide the evidence of such deposit. In response, Muhammad Haseeb Khan vide his letter dated 27.04.2011 confirmed the deposit of Rs.639,963,747/- out of Rs.830,527,647/- for the aforesaid period in Federal Treasury, however for remaining amount of Rs.190,564,300/, he contended that the verification of remaining challans would be completed within few days. Subsequently, the Assistant Commissioner, Inland Revenue, Regional Tax Zone-V, in reply to the letter of Muhammad Haseeb Khan clarified that the total un-deposited amount was Rs.261,411,407/-. Consequent upon the discovery of huge shortage, the then Manager Inayatullah Ansari under the instructions of controlling office asked Operation Manager Muhammad Haseeb Khan and Senior Head Cashier Syed Hashim Raza Rizvi to immediately reconcile and verify the amount and on their failure to do so, the complainant in presence of witnesses named in the FIR, searched the drawers of cash department and found 71 challans pertaining to the period from July 2010 to December 2010 amounting to Rs.176,844,995/- of income tax/withholding tax in respect of motor vehicles tax which did not bear the cash/transfer receipt stamps and signatures of the cashier and joint custodian. It is further stated in the FIR that besides the recovery of 71 challans, the remaining challans are not traceable with the branch. A sum of Rs.261,411,407/- is alleged to have been embezzled by the accused persons nominated in the FIR. The complainant further stated that Muhammad Haseeb Khan, Operation Manager, Syed Hashim Raza Rizvi, Senior Head Cashier In charge have embezzled the above amount while it was also duty and responsibility of Aftab Ahmed lakho, Masood Ahmed, joint custodian and Muhammad Kamran, Senior Head Cashier to deposit the embezzled amount with the link branch, therefore, being employess of NBP, they have committed the offence of criminal breach of trust, falsification of accounts, fraud and forgeries in the capacity of public servants.

2. Mr. Shahab Sarki, the learned counsel for the applicant, Syed Hashim Raza Rizvi argued that there is delay of at least two months in lodging the FIR and the case against the present applicant entirely depends upon the documentary evidence. He further argued that there is no piece of documentary evidence available with the prosecution to show that the applicant has misappropriated any amount. The complainant Majeed Awan was only posted on 16.05.2011 and he lodged the FIR on 17.05.2011 merely on the basis of hearsay evidence and against the present applicant there are general allegations, which require further inquiry into the alleged guilt of the applicant. So far as the recovery of Rs.6 million from the applicant is concerned, he argued that said amount was paid to the applicant by one Muhammad Imran as a part payment of sale of 4 air-conditioned coaches which has been mala fidely shown as embezzled amount. He argued that the alleged offences do not fall within the prohibitory clause of section 497 Cr.P.C. therefore, the applicant is entitled to the concession of bail. He further pointed out an order passed by the learned divisional bench of this court in Cr.Bail Application No.842/2011, which was moved by accused Aftab Ahmed Lakho in the same crime, who was granted bail by the learned divisional bench of this court vide order dated 21.09.2011 in which one of us (Gulzar Ahmed,J.) was a member. The learned counsel argued that since the role of the present applicant is not different than the role of Aftab Ahmed Lakho, therefore keeping in view the rule of consistency, he pleaded that the present applicant is also entitled to the concession of bail.

3. Ms. Ismat Mehdi, the learned counsel for applicant Muhammad Haseeb Khan argued that the applicant is an innocent person and no offence has been committed by him. She further argued that section 409 P.P.C is inapplicable as the applicant has not committed criminal breach of trust in respect of any property. She further argued that the allegation of criminal breach of trust is against the Senior Head Cashier Syed Hashim Raza Rizvi, Muhammad Kamran and joint custodian Aftab Ahmed Lakho. She further argued that no role has been assigned to Muhammad Haseeb Khan and since the entire case is based on documentary evidence, therefore unless the entire material is placed on the record during trial, the case of present applicant requires further inquiry. She has also relied upon the bail order of this court passed in the bail application of Aftab Ahmed Lakho (supra) and argued that rule of consistency demands that the present applicant be also granted bail. In support of her arguments, the learned counsel relied upon 1995 SCMR 1249 (Chaudhry Shujat Hussain v. The State) in which it was held that in case of bail court is not required to probe into the matter but has to make a tentative assessment of the material produced to ascertain whether there are reasonable grounds to believe that the accused has committed the crime. The term “reasonable ground to believe” can be classified at a higher pedestal than mere suspicion and allegation but not equivalent to proved evidence. Learned counsel further relied upon 2010 YLR 2299 (Wasi Ahmed v. The State) in which it was held that no recovery had been made from the accused, case hinged merely on the documentary evidence collected by the prosecution and there was no possibility of tampering with the same. Since the State counsel conceded to the grant of bail, therefore the bail was granted in this matter. The learned counsel next relied upon 2000 YLR 289 (Inamul Haque v. The State) in which this court held that the gravity of offence looked from the point of view of the quantum of amount embezzled is not the sole determining factor for deciding the bail. Tentative assessment was to be made by court while examining bail plea without probing into merits of the case restricting itself to material placed before it by the prosecution to see whether some tangible evidence was available against the accused. Further reliance has been placed on 2011 U.C. 283 (Tariq Hashmi v. The State) in which, the learned divisional bench of this court has held that nothing has been brought on record to show that the applicant had knowingly connived with other accused for providing Ijra loan on the basis of manipulated documents. Consequently, the applicant was admitted to bail in this case.

4. Conversely, Mr. Khaleeq Ahmed, the learned counsel for the complainant opposed the bail application. He argued that recovery was made from both the applicants and in the FIR specific role has been assigned to them. He further argued that after receiving the amount, both the applicants were issuing computer generated receipts prepared by their own and the same were being issued under their signatures. The learned counsel shown us various computer generated receipts issued by both the applicants under their own signatures w.e.f. 01.07.2010 to 31.03.2011. The learned counsel further pointed out 71 paid challans issued by the present applicants, but this amount was never transferred to the NBP, Income Tax Building Branch, Karachi (Link Branch) and in order to substantiate his contention, he has also shown us the bank statement of Account No.002029-1, Motor Vehicles Tax Collection Accounts, National Bank of Pakistan, KDA Civic Centre Branch, Karachi w.e.f. 01.07.2010 to 31.03.2011 but no payment entries were found in the bank statement showing any amount received through 71 paid challans. The learned counsel further shown us a statement showing daily collection of cash/pay orders for the month of July 2010, National Bank, KDA Civic Centre Branch, Karachi for the month of July 2010 on which again the signatures of both the applicants are available. The learned counsel further pointed out page No.6 of challan available in court file to show that various files including Riyal, Dollars, Bonds, Pakistani currency were recovered from applicant Muhammad Haseeb, which according to the learned counsel Ms.Ismat Mehdi, having worth of Rs.31,47,500/- while Rs.60 Lacs were recovered from another applicant Syed Hashim Raza Rizvi. He further argued that co-accused Masood Ahmed is also in jail and his bail application was rejected twice by the trial court.

5. The learned DAG Mr. Ashiq Raza has also opposed the bail application on the ground that embezzlement of huge amount is involved in this case and in view of the documents produced by the prosecution before this court, it is clear that specific role has been assigned to both the applicants in the FIR and in view of the documents produced by the complainant/prosecution, it is very much clear that both the applicants are involved in the crime and recovery was also made from them which is an admitted fact, therefore applicants are not entitled to be released on bail.

6. After hearing the arguments of the learned counsel, we have reached to an irresistible conclusion that both the applicants have been implicated in the FIR with specific role and it is not denied that they have not signed the computer generated receipts and or 71 paid challans which amount has never been transferred to the government exchequer. It is also a fact that recovery was made from both the applicants which is clearly mentioned in the challan. It is also case of prosecution that 71 more challans were recovered from drawer of cash department in presence of witnesses which did not bear the cash transfer stamp and signature of cashier. So far as the earlier bail order passed by this court in Cr.Bail Application NO.842/2011 is concerned, it is clear from the order itself that both the applicants cannot claim bail on the ground of rule of consistency. We have seen the bail order in which it was held that the responsibility of cash/pay orders and deposit the same in National Bank of Pakistan appears to be of Muhammad Haseeb and Syed Hashim Raza Rizvi and not of the applicant Aftab Ahmed Lakho. The court in the above bail application had also examined the statements signed by four officials namely, (i) Ali Muhammad Baghio, Chief Accounts Officer, Motor Registration Wing, Karachi (ii) Waheed Shaikh, Excise & Taxation Officer (iii) Syed Hashim Raza Rizvi and (iv) Muhammad Haseeb and went on to hold that prima facie it does not show that the applicant Aftab Ahmed had misappropriated the pay orders, therefore the bail was granted to him. However, in the case in hand, specific role to both the present applicants have been assigned in the FIR and the complainant’s counsel has shown the documents which were admittedly signed by both the applicants, therefore the applicant cannot claim rule of consistency. It is also an important aspect to mention that though the findings in the bail order are always tentative in nature but in the same crime while allowing bail to co-accused Aftab Ahmed Lakho, the divisional bench of this court has already held that the responsibility of daily collection of cash/pay orders and to deposit the same into National Bank of Pakistan appears to be of applicants Muhammad Haseeb Khan and Syed Hashim Raza Rizvi and nothing is available new on the record for us to take a contrary view or to hold that the case of applicants require further inquiry as argued by the learned counsel for the applicants.

7. Under Sub-section 6 of Section 5 of the Offences in Respect of Banks (Special Courts) Ordinance 1984, it is provided that accused person shall not be released on bail by a special court or by any other court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence. After examining the documents produced by the complainant in this case, we have no hesitation to hold that there are reasonable grounds to believe that the applicants have committed the offences as alleged against them and caused loss to the exchequer. So far as the question of further inquiry is concerned, it is well settled proposition of law that every hypothetical question which can be managed would not make the same a case of further inquiry simply for the reason that same can be answered by the trial subsequently after evaluation of evidence. Accused in order to release on bail must show that there is no reasonable ground to believe that he has committed the offence as alleged against him. Mere possibility of further inquiry which exists almost in every criminal case is no ground for treating the matter as one under subsection (2) of Section 497 CrPC. While deciding the bail application, the court need not to enter into upon detail appreciation and examination of evidence, however, the question cannot be decided in vacuum and the court has to look at the material available to form a tentative opinion as to whether the accused is prima facie connected with the offence. The case law relied upon by the learned counsel for the applicant are distinguishable in which under different facts and circumstances, bail was allowed to the applicants.

8. For the foregoing reasons, the bail applications are dismissed. However, it is clarified that observations made in this order are tentative in nature and same shall not prejudice the case of either party. Since huge misappropriation/embezzlement of government exchequer is involved, therefore, the learned trial court is directed to conclude the trial preferably within a period of three months.

Judge