IN
THE HIGH COURT OF SINDH AT KARACHI
C.P.No.D-3032
of 2013
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DATE ORDER WITH
SIGNATURE(S) OF JUDGE(S)
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For
Katcha Peshi
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21.08.2015
Mr. Muhammad Ishaq
Memon, advocate for petitioner
Mr.
Noor Mohammad Dayo ADPG NAB
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NAIMATULLAH
PHULPOTO, J.-
Petitioner Ali Ahmed seeks pre-arrest bail
in NAB Reference No.59/2013 filed before the learned Administrative Judge,
Accountability Courts, Karachi.
2. Brief facts
leading to the filing of instant constitution petition are that compliant was
received by NAB against petitioner Ali Ahmed and father Haji Khuda Bux Memon
regarding their involvement in corruption and corrupt practices and cheating
the public at large. NAB inquired into the matter. During investigation it transpired
that accused persons were doing forex online shares business in the New York
Stock Exchange in the name of unregistered company in the name and style of
Ahmed Trading Company (ATC). It is further mentioned in the reference that
investigation further revealed that accused collected huge money from general
public on the pretext to provide them inflated monthly profit by issuing
postdated cheques. During investigation, 161 Cr.PC statement of Asif Aziz was
recorded on 04.12.2012 in which he has stated that he invested an amount of US$
150,000/- with accused persons against profit at the rate of US$ 30,000/- per
month and was paid total US$ 90,000/- for three months only and thereafter
accused stopped payment of profit. It is alleged that petitioner Ali Ahmed
issued cheques to Asif Memon of Dubai Islamic Bank dated 15.01.2012, it was dishonoured.
Petitioner Ali Ahmed executed Finance Settlement Agreement with one Sunil Kumar
in which it is mentioned that Ali Ahmed was a broker and Sunil Kumar was the
investor on the basis of fixed profit per month. It is further mentioned that
broker has failed to make his payment obligations in respect of the finances.
Investigation officer has also collected Online Account Opening Form of ATC
Brokers in the name of Ali Ahmed. A number of receipts are also available on
the record, which shows that petitioner received amount from different persons
and issued such receipts on various dates in the name of ATC Brokers. During
investigation 20 more claims were received by NAB which reflected that accused
have plundered total amount of US$ 103097000/- from 21 claimants. Details of
claims received are mentioned in the reference. It is further stated that
during the course of investigation accused No.2 Haji Khuda Bux Memon offered
voluntary return (VR) of amount by making application to the competent
authority under section 25(a) of the National Accountability Ordinance, 1999
and surrendered original documents of 32 acres of agricultural land.
Thereafter, reference was filed against petitioner Ali Ahmed and his father
Haji Khuda Bux Memon. Haji Khuda Bux Memon was arrested during investigation
and petitioner Ali Ahmed filed the instant constitution petition and interim
pre-arrest bail was granted to him by this Court on 07.08.2013. Above mentioned
reference was filed on 15.07.2013.
3. Mr. Muhammad
Ishaque Memon, learned advocate for petitioner Ali Ahmed has mainly contended
that Chairman NAB had collected no incriminating material against the
petitioner, to file the reference against him. It is argued that New York Stock
Exchange crushed two years back which resulted heavy loss to the firm with its
customers in the business. It is argued that losses were not caused willfully
and deliberately by the petitioner but the same were caused due to the
circumstances beyond the control of the petitioner. He argued that evidence of
some PWs has been recorded in which they have stated that petitioner has
returned them some amount. Lastly, he argued that co-accused, who is father of
the petitioner, has been granted post-arrest bail and case of the petitioner is
identical to his case and the petitioner is also entitled for grant of
pre-arrest bail in the case.
4. Mr. Noor
Mohammad Dayo, Prosecutor NAB, argued that petitioner has been nominated as
principal accused in the reference for commission of offence of corruption and
corrupt practices and cheating the public at large. He has argued that
sufficient incriminating material against the petitioner has been corrected. He
has referred to 161 Cr.PC statements of PWs Asif Memon, Sunil Kumar and others and
stated that petitioner had cheated 21 claimants. He argued that petitioner got
money from them and issued such receipts and some amount was returned by the
petitioner to them. He further argued that photocopies of cheques have been
collected during investigation. He argued that accused Ali Ahmed was running
parallel banking system. He has submitted that case of co-accused Haji Khuda
Bux Memon was on different footing. He argued that petitioner is not entitled
for concession of pre-arrest bail. He has seriously opposed the bail
application.
5. We have
carefully heard the learned advocates for the parties and perused the relevant record.
6. It appears
that investigation officer during investigation has recorded 161 Cr.PC
statement of Asif son of Abdul Aziz Memon. He has stated that accused Ali Ahmed
Memon and his father Haji Khuda Bux Memon were doing business of Stock Exchange
at Hyderabad. Their stock business was with Stock Exchange New York on network.
He invested US$ 150,000/- of his family. He had also arranged customers for
accused Ali Ahmed with further investment of US$ 450,000/-. He has stated that
Ali Ahmed and his father have cheated the amount of Rs.12,00,000,000/-.
Ali Ahmed executed Iqrarnama for
return of amount to Asif and executed Private Settlement Agreement on
09.04.2012. It is on record that Ali Ahmed issued cheques of Dubai Islamic Bank
dated 15.01.2012 for payment of US$ 25,000/- in favour of Asif Memon. Cheque
return memo of Bank reflects that account was closed. 161 Cr.PC statement of
Sunil Kumar has also been recorded by IO in which he has stated that he had
given Rs.10,145,000/- to petitioner Ali Ahmed and his
father for the purpose of investment at the rate of 3% per month. Rs.10,005,000 are still outstanding against the petitioner. Receipts
issued by accused Ali Ahmed with signatures of IB of ATC brokers in the name of
Sunil Kumar dated 05.09.2011 of Rs.50,000/- and other receipts of different
amounts are also available on record. Online Account Opening Form for of ATC
Brokers is also on record in which accused Ali Ahmed is first party and Sunil
Kumar is the second party. Finance Settlement Agreement was also executed by
accused Ali Ahmed with Sunil Kumar on 02.04.2012,
accused Ali Ahmed failed to fulfill his payment obligations in respect of
finance. Apparently, there
is also other huge documentary evidence against accused Ali Ahmed to connect
him in the commission of offence. Case of co-accused Haji Khuda Bux Memon is
not identical to the case of the petitioner. Co-accused Haji Khuda Bux Memon
has been granted bail by this Court vide orders dated 29.05.2013 mainly on the
ground that partnership of Haji Khuda Bux Memon with his son, principal accused
Ali Ahmed is yet to be established at trial. Co-accused Haji Khuda Bux Memon was
also in judicial custody and he was aged about 70 years whereas, petitioner Ali
Ahmed Memon absconded away when inquiry was initiated against him. Contention of learned advocate for the petitioner that evidence of
10 prosecution witnesses has been recorded by the trial Court. PWs Riaz
Ahmed Talpur, Naveed Ahmed and others have deposed before the trial Court that
some amount has been returned by petitioner Ali Ahmed to them in installments. It
is admission on the part of the accused Ali Ahmed but deeper appreciation of
evidence is the exclusive function of the trial Court. Prima facie, there is
sufficient material/documentary evidence against accused Ali Ahmed to connect
him in the commission of offence. Apart from that, grant of bail before arrest
is an extra-ordinary relief to be granted only in extra-ordinary situation to
protect innocent persons against victimization through abuse of law for
ulterior motives. Pre-arrest bail is not to be used as a substitute or as an
alternative for post-arrest bail as held by Honourable Supreme Court of
Pakistan in the case of Rana Muhammad Arshad versus Muhammad Rafiq (PLD 2009 SC
427). No mala fide or ulterior motive on the part of NAB is shown by the
petitioner. There appear reasonable grounds for believing that petitioner Ali
Ahmed has committed the alleged offence. Therefore, constitution petition filed
by petitioner Ali Ahmed for pre-arrest bail is dismissed. Interim pre-arrest bail already granted to accused Ali
Ahmed is hereby recalled. Consequently, constitution petition is accordingly
disposed of, with direction to the trial Court to decide the reference
expeditiously.
7. Needless to
mention here that above observations are tentative in nature and the trial
Court shall not be influenced by the same while deciding the case of the
accused Ali Ahmed on merits.
JUDGE
JUDGE
Gulsher/PA