' ALI SAIN DINO METLO, J.--- Petitioner Muhammad Amin Qureshi, an officer in Habib Bank Limited, and Abdul Ghani Mansoori, a Sub-Inspector in Karachi Water and Swerage Board (KW&SB) have applied for bail. The charge against them is that they facilitated absconding accused Syed Iqbal Kazmi, a cashier in Habib Bank Limited, Barkat-e-Hyderi Branch, to embezzle an amount of Rs,3,16,26,302 during the period from 1998 to 2000. He was cashier at utility counter of the bank. His duty was to receive bills and cash from depositors, make entry in the scroll register, endorse and sign all the three portions of the bills in token of receiving the amount, get them stamped from the officer incharge, deliver one portion to the depositor, and deposit the cash in the bank. The bank used to send one of the remaining two portions (stubs) of the bill and a copy of the scroll to the billing department and credit the amount in its account. The modus operandi of the cashier was that he used to pocket money of some of the bills without making entry in the scroll and used to take away or destroy the remaining two portions of the bill. The fraud came to light very late i.e. In February, 2001 when a paid bill produced by a consumer bearing seal of the bank and signature of the cashier, on verification, was found not entered in the scroll. Thereafter two other bills not entered in the scroll were reported to the bank by KW&SB and in this way a total amount of Rs,98,595 was found to have been embezzled by the cashier.
2. The cashier (absconding accused Syed Iqbal Kazmi) on being called upon by the bank to explain, admitted his guilt and deposited the amount which was credited to the account of the billing department. The bank whilst taking disciplinary action, reported the matter, through a letter dated 14-2-2001 of its Manager, Mr. Feroz Alam, to the Deputy Director Federal Investigating Agency (F.I.A.) Commercial Bank Circle, Karachi, who registered the case and on completion of investigation sent it to the Special Court (Offences in Banks) Sindh, Karachi, only against accused Syed Iqbal Kazmi showing him as absconder.
3. In August, 2002, the Managing Director of KW&SB through his letter, dated 15-8-2002 addressed to the Director-General, Regional Accountability Bureau, Sindh, Karachi, complained that the amount embezzled by the cashier was about 33.87 million and the F.I.A. Had not made any commendable progress. The matter was taken up by the Accountability Bureau and the same Investigating Officer, namely, Sub-Inspector Ubed Ahmed Siddiqui of the F.I.A., in his investigation report dated 6-12-2003, found that a total amount of Rs,3,16,26,302 had been misappropriated and the petitioners had connived with the cashier in the sense that petitioner Muhammad Amin Qureshi, custodian of Cash Received seal, allowed him (cashier) to use the seal and did not check his actions and petitioner Abdul Ghani Mansoori, failed to collect the stubs and scrolls from the bank in time. Their contacts with him on telephone were taken as a circumstance establishing their involvement in the affair. Based upon such report of the investigator a Reference bearing No,15 of 2005 was filed before Accountability Court, Karachi.
4. At the request of the Chairman of the National Accountability Bureau, the Special Court (Offences in Banks) Sindh, under its order, dated 28-7-2005 transferred the case to the Accountability Court and a supplementary reference was also filed before it on 7-1-2006 showing accused Muhammad Iqbal Kazmi as "absconder" and the petitioners as "not arrested". However, the petitioners were subsequently arrested.
5. It is not the case of prosecution that the amount or any part of it was misappropriated by the petitioners. It's case is that they by not performing their duties properly connived with absconding accused Iqbal Kazmi in his act of misappropriating the money. To establish connivance, which is a form of abetment, presence of guilty mind it. Necessary. The omission on the part of the petitioners must be coupled with their guilty mind for which at least knowledge of the came is essential. In the present case there is nothing to show that the petitioners were in the knowledge of the misappropriation made by the cashier. Merely from their telephonic contacts with him, without knowing the nature of conversation, it cannot be assumed that they knew about his misappropriation.
6. The argument of the prosecutor that petitioner Muhammad Amin Qureshi by putting implicit reliance upon the cashier failed to check his misdeeds and thereby facilitated him in the commission of crime, seemingly attractive, is without much weight due to lack of sufficient evidence regarding his knowledge about latter's misappropriation. The provision of clause (a)(vi) of section 9 of the National Accountability Ordinance, 1999 (as amended by Ordinance XXIV of 2000) regarding wilful failure to exercise authority to prevent the commission of crime will also be of no help to the prosecution as the use of word "wilfully" necessarily implies knowledge of the crime. The learned prosecutor did not rely upon the provision only from the point of view that the offence pertained to the period prior to its insertion, though the provision is not applicable at all.
7. The bank, which has to bear the loss caused by the misappropriation committed by its cashier, on enquiry- made by a committee found that petitioner Muhammad Amin Qureshi, who was basically a sportsman without even basic training in general banking, was not criminally involved in the misappropriation made by the cashier.
8. As regards petitioner Abdul Ghani Mansoori, a Sub-Inspector in KW&SB, the allegation against him is that his failure to collect scrolls and stubs of the bills from the bank in time facilitated the cashier in misappropriating the amounts continuously for a very long time; but, it has not been shown that any scroll or stub mentioned the misappropriated amount. Thus, their collection even on the very same day would have not made any difference. Moreover, in absence of guilty mind, failure to collect scrolls and stubs even if they mentioned the misappropriated amount would not attract criminal liability.
9. In view of the above facts and circumstances, we are tentatively of the opinion that the prosecution has failed to make out reasonable grounds for believing the petitioners guilty of the offence and it requires only further enquiry into their guilt. Therefore, they are directed to be released on bail each on furnishing one surety in the sum of Rs,5,00,000 (Rupees five lac) and personal bond in the like amount to the satisfaction of the trial Court.