' SYED MAHMOOD ALAM RIZVI, J.--- This bail application is directed against the order dated 9-6- 2008 passed by the learned Special Judge (Offences in Banks) at Karachi, in F.I.R. No,22 of 2008, under sections 406/408/420/468/471/109, P.P.C. Registered at F.I.A. CC Karachi, whereby the bail application of the applicant was rejected.
2. Precisely the facts of the prosecution case, as per F.I.R., are that the complainants Messrs Osama Bin Shoaib and Muhammad Younus, the Chief Executive and Finance Manager, respectively of Messrs Prudential Securities Limited, Karachi lodged a complaint on 184-2008 with the F.I.A.
Regarding an offence occurred between the years 2006 to 2008 whereafter the F.I.A. Conducted a preliminary inquiry. It is, alleged in the complaint that accused/applicant, ex-senior Accounts Officer, while, working with the complainant company, with intent to cheat and defraud the company, had issued cheques of different amounts in the names of the applicants, and after getting signatures of the various signatories of the company, had fraudulently withdrawn proceeds thereof, by opening fake accounts in the names of the company's clients, i.e. Muhammad Mazhar, Muhammad Jamil Ahmed, Zahid Ali Khan, Taslim Hussain and others and he had illegally transferred the said amount from the company account to the above fake accounts through cross-cheques. Initially, the complainant found a few fraudulent transactions amounting to Rs,5,329,376, when the audit of the company was in progress. As a result, the company contacted the applicant. The applicant accepted his liabilities and issued a cheque of Rs,1,160,000. During the inquiry, it revealed that the applicant was appointed in the company in the year 2000 as an Account Officer, and had embezzled an amount of Rs,14,399,741 which was deposited in the fake accounts in the names of their clients at ABN Amro and Prime Commercial Banks. As a result, an F.I.R. Was registered on 9-5-2008.
3. That the accused was thereafter arrested and the interim charge-sheet was submitted on 26-5- 2008, which details the fake accounts, opened by the applicant, and the cheque stolen by him from the company and also deposited in his account, and which also details the joint accounts of his wife, brothers and parents. The total embezzled amount comes to Rs,25,391,589.
4. That the company was kept busy in audit and ultimately, the amount was enhanced to Rs,32,318,630 and the brother of the accused, namely Muhammad Noman Malik was also inducted as an accused, but could not be arrested, and was, therefore, placed in Column 2 as absconder.
The said Muhammad Noman Malik was a banker and it was with his connivance that all the transactions were made. All the details of his connivance and how the accounts were opened and the amounts deposited in those accounts, have also been mentioned in the final challan.
5. That the brother and mother of the applicant namely Muhammad Noman Malik and Mrs. Rashida Naheed have maintained their accounts with the company of the complainant and the outstanding debit balance is Rs,8,442,106.59 and Rs,5,690,630.25 respectively. Further, per complainant, the family members of the applicant have paid a sum of Rs,5,971,435 against the amount embezzled/misappropriated by the applicant and his brother. It is further pointed out by the complainants, that the applicant was maintaining a share account in the company and till 8- 7-2008 a debit balance of Rs,8,448,807 was available and an open position in CFS for a total value of Rs,14,794,093, therefore, a letter was sent to the brother of the applicant on 8-7-2008 with the request to pay an amount of Rs,9,758,483 to regularize his account, enabling the company to avail CFS Mark-II Market on his behalf and the same letter was also sent to the mother of the applicant by showing a debit balance of Rs,5,698,080 and an open position in CFS for a total value of Rs,16,328,823. Therefore, the company requested her to pay Rs,7,184,784 to regularize her account to enable the company to avail CFS Mark-II Market on her behalf.
6. The learned counsel for the applicant has contended that the accused/applicant has been falsely implicated in the above case with mala fide and ulterior motives just to usurp the amount of his family. That the offence, if any, does not fall within the ambit of the schedule of the offences in Banks (Special Courts) Ordinance, 1984, (hereinafter referred to as the "Ordinance, 1984"), as the complainant company is private limited company and whatever cheating or fraud has been committed, the same was within the company, hence FIA or the Special Court has no jurisdiction.
And he has further contended that the case of A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353 is not applicable in this case.
7. He has further contended that whatever fake accounts were opened in the company to deal with the transactions of shares have no nexus with the business of bank or "in respect of" or "in connection with" the banks and or scheduled offences and the Ordinance, 1984, or that the FIA has any jurisdiction over offences committed by private persons. He has further argued that the FIR is delayed, while the applicant had already resigned from the company in February, 2008, after handing over full charge and clearance and thus, F.I.R. Has been lodged to blackmail the applicant as a result of enmity. He has further submitted that no case is made out against the applicant as the cheques were signed by the competent person and nothing was unearthed during the audit of the past three years, and none of the sections, under which the F.I.R. Has been registered, is applicable against the applicant. The offence, if any, does not fall within the prohibitory clause of section 497, Cr.P.C. That the complainant has suffered no loss and except for a couple of witnesses, no witness has implicated the applicant, and all that the evidence was with the prosecution, therefore, the applicant is entitled to bail at this stage.
8. Conversely, the learned Federal Counsel opposed the grant of bail, but he was not able to demonstrate the case. Resultantly, one of the complainants namely Muhammad Younus, present in Court, and Investigating Officer have argued the case and stated that Rs,5,971,435 had already been refunded by the applicant and his family and they further informed that a pay order of Rs,5.00 million dated 2-5-2008 was issued by UBL against the cheque of Malik Muhammad Pervez, the father of the applicant, and that the application for the pay order was signed by the applicant while the delivery of pay order was taken by Muhammad Faizan Malik, (the brother of the applicant), and that the said pay order has been handed over to the Investigating Officer. Further that on 24-9-2008, the counsel for the applicant were ready to deposit the amount of the pay order in Court by encashing the same. Therefore, the Court summoned the father of the applicant as well as the concerned bank.
9. That on 26-9-2008, the employee of UBL, Nishtar Road, Branch, Karachi, produced a letter showing the details with the above pay order. The father of the applicant, present in Court, stated that the pay order was obtained by him by issuing cheques of his own account, and he had no objection if the amount of the pay order is deposited with the Nazir of this Court. He has further undertaken to produce Shahzad Ahmed, in whose favour the pay order was prepared. Therefore, he was directed to produce Shahzad Ahmed, but the father of the applicant neither turned up nor produced the said Shahzad in Court on 7-10-2008, 14-10-2008 and even on 22-10-2008. The Investigating Officer, present in Court, has informed the Court that Shahzad is also a fake person.
The Investigating Officer has further informed the Court that the brother of the applicant was employed in the concerned bank where the fake accounts were opened by him, and that he facilitated the applicant to open the fake accounts, where the above cheques were deposited. All the details have been filed by him. Which is also available in the file. The complainant also demonstrated how the applicant had committed the fraud, and after inquiry, huge embezzlement has been discovered to have been committed by him, and they cast doubt upon him when the first instance of embezzlement came in their knowledge. Therefore, the applicant quietly agreed to pay back the amount and even made payment through his own cheques amounting to Rs,1,160,000. He has further stated that if he had paid the remaining embezzled amount, he would have no objection to grant of bail. But the learned counsel for the applicant are not in agreement to the said proposal.
10. Heard both the counsel for the applicant, complainant and Investigating Officer, the Federal Counsel as well as have perused the record.
11. It is an admitted fact that the applicant was employed as Accounts Officer and that he was incharge of all the deposits and withdrawals and, prima facie, his involvement in the above case, with the huge transaction, have been made out against him in the fake accounts and as well as in the accounts of his brother and family while the learned defence counsel have not placed any proof as to how the applicant or his family members came to earn so much money, which prima facie, shown that the said amounts were embezzled by the applicant, and by the real absconding co-accused brother who facilitated in opening the fake accounts.
12. As regards the jurisdiction of the Special Court under the Ordinance, 1984, the Ordinance enforced on 23-2-1984, is concerned, the preamble of the Ordinance is reproduced in assistance as under:--- "The Ordinance to provide for speedy trial of certain offences committed in respect of banks and for matters connected therewith or incidental thereto."
Section 2(d) read as under:--- "2(d) 'scheduled offences' means an offence specified in the First Schedule and alleged to have been committed in respect, or in connection with the business of a Bank."
13. Related sections 406, 408, 409, 460 and 468, P.P.C., are within the schedule of the Ordinance.
14. The same question arose when a direct complaint was filed under sections 403/406/409/149, P.P.C., and the Special Court had taken the required cognizance, but this Court was pleased to quash the proceedings. However, the Honourable Supreme Court was pleased to set aside the judgment of this Court (reported in Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 352-A, and discussed the "scheduled offences" mentioned in section 2(d) of the Ordinance, 1984. For ready reference, the relevant para. Of the Supreme Court judgment is reproduced as under:--- "The definition of scheduled offence as contained in section 2(d) of the Ordinance does not include a rider to be to the offences which are mentioned in the schedule. The rider is that those offences should have been alleged to have been committed 'in respect of or in connection with the business of a bank'. The expression 'business of the bank' used in the definition would have to be given extended meaning on account of the use of two such further open ended expressions which connote very wide meaning for the words 'business and the bank'. There are 'in respect of or 'in connection with'. The scrutiny of the meaning of these words and expressions in the classical sources together withthe modern usages and scope of Banking business, leaves absolutely no doubt that there will be left out of their ambit only extremely rare cases. They somehow or the other, are linked with the modern extended banking practices in trade business, industry and finance, domestic and other; besides the earlier known scope of their operation. Take, for example, the word `business' as separate from the word 'bank'. Again take all that goes with the modern banking business and all that is included in the banking procedures. Not only this, banking activities both with regard to the depositors dealing as well as dealing in trading and other enterprises are their business.
' The intention being that all conceivable situations, linked with the business of the Bank, would make the offences mentioned in the schedule as scheduled offences, thus, to take away all such cases from the ordinary Courts, for purpose of their trial before the Special Courts (Banks)."
' And the trial Court rightly took the cognizance of the above case and also relied on the above judgment.
15. From a perusal of the record and the detailed investigation conducted by the Investigating Officer, it is quietly clearly established, that whole the family of the applicant was involved in the case, and fake accounts were operated by them, and that further, the father of the applicant had appeared twice in this Court and agreed to deposit a pay order of Rs,50,00,000, but that for the last three dates he had failed to produce the said Shahzad, which also shows that they were indeed involved in the above transactions. Therefore, a prima facie case is made out against the applicant. Compounding the applicant's case is the fact that his real brother is still absconding from Court. In view of the above facts and circumstances, it is held that the bail application of the applicant was rightly refused/declined by the learned trial Court. Similarly, this application also having no merits to it, is also dismissed.
16. The Manager, UBL, Nishtar Road, Branch, Karachi, is directed to encash the pay order mentioned above and deposit the amount with the Nazir of this Court. The Nazir is also directed to pay the amount to the complainants after proper identification and verification.
17. In the above terms this bail application is dismissed.