' WAHID BUX BROHI, J.--- The applicant Ahsan Khairi has sought bail in a case registered on 8-6- 2004 for an offence punishable under sections 406/420/468/471/34, P.P.C. At P.S. F.I.A./C.B.C.-I/ Karachi (F.I.R. No,6 of 2004).
2. The F.I.R. Incorporates a written complaint dated 5-4-2004 lodged by Mr. Maqsood Ahmed Memon, 0G-1, National Bank of ' Pakistan, K.D.A. Branch, Civic Centre, Karachi addressed to the Deputy Director F.I.A., Banking Circle (Economic Wing), Karachi the text whereof runs as under:-- "Under the instructions of the Competent Authority of National Bank of Pakistan, I have been authorized to lodge the following complaint against Mr. Ahsan Khairi son of Shafiqullah Abdul Khairi of Messrs Khairi Textile and Garments, Karachi.
' That on 10-5-2003 the accused had opened an account under the title of Messrs Khairi Textile and Garments". (Photocopy of Account opening form enclosed as Annexures "A").
' Thereafter on 10-5-2003 under F.B.C. No,61/03 containing Cheque No,3538983 dated 15-8-2003 (photocopy enclosed as Annexure "B") for US$ 32,000 sent for collection to American Express Bank Ltd. Of accused, in response thereof American Express Bank Ltd., vide their credit advice dated 23- 5-2003 (photocopy enclosed as Annexure "C") under the status of instruction "to be paid" they had also specifically mentioned with stress of note that Account No,000214007 with our New York Office has been credited as per terms of agreement which was also mentioned.
' The American Express Bank Ltd., sent a letter, dated 16-6-2003 to N.B.P. K.D.A. Branch Civic Centre Karachi(photocopy enclosed as Annexure "D") which was received on 17-6-2003 contents of which are self-explanatory and reproduced hereunder.
"We enclose herewith the original cheque for US$ 32,000 sent by you. You are being returned unpaid with the reasons "forged/counterfeit instrument" whereas the accused Mr. Ahsan Khairi son of Shafiqullah Abul Khairi has already withdrawn the amount of Rs,8,41,600 as per clearance conveyed by the American Express Bank Ltd. The accused withdrew the amount through different cheques of even dates, (attested photocopy .Of the statement of account is enclosed as Annexure "E").
' On 17-6-2003 N.B.P., K.D.A. Branch Civic Centre, Karachi issued reminder letter duly drafted by the bank's legal advisor (photocopy enclosed as Annexure "F") to the accused Mr. Ahsan Khairi son of Shafiqullah Abul Khairi in which he was conveyed the contents of American Express Bank Ltd. Letter dated 16-6-2003 about the remarks "forged/counterfeit instrument" and being the matter within the cognizance of the investigating agency. This letter was acknowledged by the accused on 19-6- 2003.
' Moreover on 17-6-2003 N.B.P., K.D.A Branch Civic Centre, Karachi addressed the respondent American Express Bank Ltd. (photo copy of letter enclosed as Annexure "G") for ascertaining the authority under which after clearance of the cheque the fate of the instrument was declared as "forged/counterfeit instrument" for which all the liabilities of payment lies upon the shoulders of the American Express Bank Ltd. For having cleared the instrument.
' Then on 8-7-2003 reminder was sent to American Express Bank Ltd. (photo copy enclosed as Annexure "H") and thereafter on 11-8-2003 N.B.P., K.D.A. Branch Civic Centre, Karachi wrote a letter to the Senior Director American Express Bank Ltd. (photocopy of letter enclosed as Annexure "I") but all in vain.
' On 15-12-2003 the accused Mr. Ahsan Khairi accompanied with his father Shafiqullah Abul Khairi visited N.B.P., K.D.A. Branch Civic Centre, Karachi and undertook his responsibility and liability to have withdrawn a sum of Rs,1,822,954 from N.B.P., K.D.A. Branch Civic Centre, Karachi, including charges and undertook to return the same, his father also issued a cheque which was returned back to him with the remarks that once you have cheated the bank we don't want to sustain second offence and fraud from you.
' Since the accused has confessed to have withdrawn a sum of Rs,1,822,954 by cheating and fraud which also reveals from the documentary proofs as elaborated that the accused has committed the act of fraud and cheating with the Bank and withdrew a sum of Rs,1,822,954 hence liable for prosecution, punishment and for recovery of the same amount from the accused to be credited back to the National Bank of Pakistan K.D.A. Branch, Civic Centre, Karachi.
' It is, therefore, requested that any.I.R. May be lodged against the accused Mr. Ahsan Khairi son of Shafiqullah Abul Khairi for trial in the Anti-Offences Banking Court."
3. During the investigation applicant Ahsan Khairi was arrested on 8-6-2004. He approached the trial Court for bail but it was declined.
4. We have heard Mr. Khaleeq Ahmed learned counsel for applicant and Mr. S. Ziauddin Nasir learned Standing Counsel for the State.
5. Learned counsel for applicant contended that no direct evidence has been collected by the investigating agency to establish that the questioned cheque was forged and counterfeit instrument and in this regard they have relied only on a letter issued by the American Express Bank Limited but the statement of the author of the letter has not been recorded. In view of such argument time was allowed to the learned Standing Counsel to consult the Investigating Officer and to find out if the investigating agency and could lay hands on such documentary evidence which with due authenticity, could show that the- cheque was a forged one, but despite availing sufficient time it was stated in the Court that none has been examined from the staff of the American Express Bank Limited.
6. The material on record indicates that cheque presented in the National Bank was sent for collection to American Express Bank Limited and in response thereto the credit advice dated 23-5- 2004 was issued with the instrument "to be paid". The advice was accompanied by specific note of stress that Account No,000214007 with their New York Office had been credited as per terms of agreement and in consequence of the said advice the amount was released and payment was made. Subsequently, the second letter was received returning the cheque of US$ 32,000 it forged/counterfeit instrument. Thus, the prosecution instantly is in possession of only the aforesaid letter of American Express Bank Limited but admittedly the investigating agency has not recorded the statement of the author of said letter in order to ascertain as to in what manner and on.The basis of which data the cheque was treated as forged/counterfeit document. The report under section 173, Cr.P.C. Has been submitted in the trial Court with usual device of labeling it as interim challan, but the requisite evidence has not been collected so far.
7. Admittedly, the earlier advice was issued on the basis of credit made at the New York Office of American Express Bank Limited and if at all cheque was found to be forged or counterfeit instrument such evidence should have been collected directly in addition to the letter received by post. At present nothing is available on record in support of the aforesaid letter and at the best prosecution relies on the statement in the F.I.R. That applicant has admitted withdrawal of the amount.
8. Under these circumstances, we are convinced that guilt of the applicant founded on the aforesaid pieces of evidence would require further inquiry.
9. In consequence of the above discussion, the application is allowed and the applicant is granted bail subject to furnishing surety in the sum of Rs,18, 23,000 and executing P.R. Bond in. The like amount to the satisfaction of trial Court. It is, however, clarified that if subsequently evidence comes on record against the applicant establishing the alleged offence of fraud/forgery etc. The prosecution will be at liberty to move for cancellation of the bail.
10. These are the reasons for the short order announced on 24-11-2004.