' The instant bail petitions are directly relatable to the Forex scam leading to a number of References by the National Accountability Bureau, Reference No,35 of 2005 being one with enormous volume of the financial involvement. This reference was initially instituted against four accused namely, Shahid Hassan Awan, Zubair Ali Khan, Majid Rashid and Ulfat Salim. Subsequently, one Zakaullah Khan Sherwani was also added as an accused.
2. Although in the Reference allegations against each of the accused have been separately incorporated and bail petitions have also been filed separately on behalf of Zubair Ali Khan, Majid Rashid and Ulfat Salim but the primary nature of their involvement and most of the grounds for seeking the bail being common this single order shall dispose of three Writ Petitions Nos.2799/08, 8796/07 and 2678/08 respectively filed by the petitioners, Zubair Ali Khan, Majid Rashid and Ulfat Salim.
3. The allegations in the Reference are that a private limited company named Bulls and Bears (Pvt.)
Ltd. Was incorporated under the Companies Ordinance, in the October, 2001 and the petitioners along .With Shahid Hassan Awan (co-accused of the petitioners) were its Directors, It was stated in the reference that the Forex scam was unearthed in the year 2003. The modus operandi of Messrs.'
Bulls and Bears Pvt. Ltd. Was that by means of market agents and attractive brochures etc. Deposits of money were illegally solicited from the public at large without having any lawful authority for the same. It was further mentioned that on receipt of complaints show cause notices issued to the company by the Securities and Exchange Commission of Pakistan (S.E.C.P.) for carrying out illegal Forex business and winding up petition was filed in the Lahore High Court, Lahore. After authorization of the investigation by its Chairman, the NAB investigated the matter.
Allegedly millions of rupees were misappropriated and the accused petitioners along with the co- accused were found guilty of the offence of cheating as defined under section 415 of the P.P.C. As well as the offence of corruption and corrupt practices as defined in Clauses, (iii), (iv), (ix) and (x) of section 9(a) punishable under section 10(e) of the National Accountability Ordinance, 1999,
4. The role ascribed to the petitioners individually in the reference was as under:-- Zubair Ali Khan:--
(i) Accused in connivance with accused No,1 and some other founded a private limited company named Bulls 'and Bears Ryones (Pvt.) Ltd. Ostensibly for import/export of textile accessories and opened A/c No,1131637 Bank Alfalah LDA Plaza with paid-up capital Rs,1 million and embezzled all the funds.
(ii) Accused in connivance with accused No,1 and some others established B&B Paint Factory Bund Road Lahore on 11-9-2002 and opened bank account with MCB Gulshan-e-Ravi Lahore. The bank account analysis is in process, which shall be included in the final reference.
(iii) There was so-called agreement, dated 1-8-2003 between accused and Shahid Hassan Awan accused regarding the investment and the profits sharing amounting to Rs,13.4 million (approximately) which the accused Zubair Ali Khan collected from general public. Ulfat Saleem:--
(i) On 3-1-2003 accused joined as Director (Finance) B&B Company, replacing Hassan Akhtar Awan. He involved himself in the settlement of various financial transactions and also opened/operated number of bank accounts.
(ii) Accused was benamidar of accused No,1 regarding Plot No,298 (K) in Block DHA Lahore. He further purchased 10-marla plot REG.No,T-3765, Ferozepur Road Lahore, and also 10-marla plot No,T-27/2 (Khasra No,797) Khuda Bukhsh Housing Society Lahore from the public money. Majid Rasheed:-- He was Marketing Officer and later on, became Director (Admn) in which capacity out of the public money, he purchased Savings -Certificates worth Rs,28 lacs, FEBC'c valued Rs,11 million from UBL/MCB Neela Gumband Lahore and DSC's worth Rs,5.6 million from Emirates Bank International.
He embezzled the said funds.
5. The common ground for seeking the bail raised by the learned counsel for all the three petitioners is that the petitioners were arrested on 8-8-2005 and reference was instituted on 5-8- 2005; they remained under detention without any pr ogress in the trial so much so that the charge was also framed after about twenty (20) months of the filing of the interim reference; not only that but even after the framing of the charge no substantial progress has taken place in the trial of the case and during all this period of incarceration of the petitioners the statements of nineteen (19) prosecution witnesses have been out of the lengthy list of 910 cited P.Ws. The learned counsel, therefore, maintained that there was no likelihood of the conclusion of the trial in the near future and the petitioners have been rotten in the jail aimlessly for the last about four years,
6. Relying upon a number of judgments of the superior Courts the dictum laid down in that case of Muhammad Nadeem Anwar and another v. National Accountability Bureau and others (PLD 2008 SC 645) was specifically pressed into service to argue that the inordinate delay in the conclusion of the trial when not attributable to the accused, was a valid ground necessitating the concession of bail. It was also pointed out that in the case of Zubair Ali Khan a direction was also issued on 18-9- 2007 for concluding the trial proceedings within six months which direction having not been carried out the learned trial Court has shown its inability to liquidate the proceedings in the near future keeping in view the volume of the evidence relied upon by the NAB and likely to be produced by it against the petitioners,
7. It was also jointly argued that there was no justification to keep them behind the bars even after the lapse of four years, especially when the maximum punishment provided under the law for the alleged offences is imprisonment for 14 years which is generally imposed for a period ranging from 4 to 6/7 years, According to the learned counsel, it is very rare and whenever it has been done it is because of the seriousness of the role of the accused that the punishment exceeding seven years is given to the accused for the offences under the NAO 1999. The learned counsel then dilated upon individual liability of each of the petitioner and pointed out that the same was either not livable under the law or it was for much less quantum of financial implication as compared to the volume of the amount under the Reference. It was also vehemently contended that the petitioners never had any intention to defraud the people or to embezzle the amount but it was only because of the panic and circumstances created by the complainant that the genuine business of the Bulls and Bears was jammed and the depositors could not be compensated.
8. Ch. Abdul Hafeez, Sr. Special Prosecutor for NAB maintained that the prosecution alone was not responsible for the delay in the conclusion of the trial and it was on numerous dates of hearing that the hearing was adjourned either on the request of the accused or for the circumstances which could be attributed to them alone. The learned prosecutor added that the number of witnesses is no doubt large,but the size of the financial scam in which the petitioners are involved is quite enormous and as such the time has been consumed for inevitable reasons, though the prosecution is trying its best to abridge it and as the petitioners themselves were responsible for a large number of adjournments they could not be released on bail on this score.
9. The learned Senior Prosecutor referred to the case of Faisal Hussain Butt v. The State and another (2009 SCM R 133) and maintained that the question of bail had to be decided not for the delay alone because the petitioners had themselves been contributory to it and even otherwise the volume of the financial implications and the number of the victims of the scam disentitled the petitioners from equitable or discretionary relief. The learned Prosecutor has emphatically and repeatedly impressed that the Bulls and Bears was one of the companies under action for the largest quantity of the liability running into billions and in that perspective the petitioners were not entitled to the concession of bail.
10. Unfortunate and tragic has it always been that successively and in short intervals the people of this country are confronted with one of the other big financial scam but invariably the authorities step in only when the leeches have fully sucked the blood of the people. The grabbers openly solicit money from the public by offering lucrative promises for profits/returns at unimaginable and inflated rates which a person of ordinary financial prudence knows, is impossible to achieve. This vicious and multidimensional play continues and is also introduced, advertised and promoted through widespread means of print and electronic media but the authorities responsible for guarding against such malicious activities, for reasons, keep themselves indolent, remain indifferent or under sound slumber and the moneys from the public are grabbed right under their nose by persons and companies involved in the so called business activity. Never at the right time they come forward, never they act or nib the evil before it, is out of the bud. With a wishful thought (be it not a reverie) one may hope that the Forex scam be the last of the series.
11. Be that as it may, it cannot be denied and is out rightly evident from the preamble of the National Accountability Ordinance, 1999 that it was promulgated with a view to provide effective measures for detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse and abuse of power of authority, misappropriation of property, taking kickbacks, commission and for matters connected and ancillary and incidental thereto. The preamble read with the provisions that follow in the Ordinance unambiguously indicates, that the object of this special legislation was to provide expeditious trial for scheduled offences. The mere fact that section 16 of the National Accountability Ordinance, 1999 has prescribed a period of 30 days for holding the trial on day to day basis and concluding the same within 30 days of the submission of the challan is by itself sufficient to show that the intent and object of the Ordinance was to ensure the expeditious trial and its conclusion within the shortest possible time. It is of course true that the limitation of thirty days has hardly ever been observed for the disposal of a reference under the National Accountability Ordinance, yet it cannot be denied that the emphasis of the Ordinance for quick disposal of the cases is neither lost nor can it be ignored.
12. For the purpose of bail, therefore, we shall also see and examine the reasons for the delay in the conclusion of the trial and in the case of the petitioners it will be all the more significant because a period of long four years has elapsed since their arrest in a case where the maximum punishment provided by the Statute is fourteen (14) years imprisonment. It is further noteworthy that till now the progress of the trial is almost insignificant and the circumstances in which the trial is proceeding clearly indicate that if the trial continues with the same pace it would be needing a many fourteen years to conclude.
13. The law as emphatically available in the criminal jurisprudence and repeatedly ordained by the superior Courts of this country aims at ensuring that the accused are made to be available for trial but it has never been nor it can ever be the intention of law to punish the accused for the offence the trial whereof is still pending against him. The concept of punishment is essentially relatable to the conclusion of the trial and the punishment can only be imposed after the end of the trial. The fact that unless otherwise specifically prohibited under the law, the benefit of section 382-B, Cr.P.C.
Is generally available to a convict also indicates that nobody can be incarcerated during the trial merely as a matter of punishment.
14. In the case of Muhammad Nadeem Anwar and another (supra) it was reiterated that the concession of bail cannot be withheld as punishment on accusation of a non-bailable offence. It was also observed that the accused was entitled to the expeditious and inexpensive access to justice which included. Right to fair and speedy trial in transparent manner without any unreasonable delay, which intention has been re-assured in section 16 of the NAO, 1999 by making the provision for day to day trial and its conclusion within 30 days. We have observed that the delay in the case of the petitioners is much more than the one involved in the case cited above.
15. It cannot be ignored that in the bail application of one of the petitioners a direction was earlier issued for final decision of the case within six months. The report submitted by the learned trial Court virtually indicates that it may not be possible in the circumstances of the case to concluded the trial in the near future. Thus, the object of the NAO as discussed above for early liquidation of the trial does not appear likely to be achieved anywhere in the near future. Hence, the mere fact that the challan has been submitted and the trial is pending would not constitute a bar for the grant of bail to the accused petitioners.
16. As mentioned above there are 910 cited P.Ws. Out of which the statements of only 19 witnesses have since been recorded in a period of about twenty (20) months. Even if the NAB chooses to produce a much lesser number of witnesses than the one given in the calendar of witnesses the period of trial may extend at least to a couple of years, but this too would depend on the condition that all concerned are scrupulously cooperative for the progress of the trial.
17. All said and done, by the above observations it may not be construed that the element of delay alone in this case could be sufficient and the sole ground for concession of bail. The reliance by the learned Prosecutor on the case of Faisal Hussain Butt (supra) too is not totally out of context because in spite of delay in conclusion of trial bail was refused in that case because of other cognate factors, We are, therefore, taking the delay into consideration conjunctively with the other merits especially the individual liability of each accused petitioner as emanating from the record and the break up of the liability carried out by audit and analysis of the accounts. The perusal of the order-sheet of the learned trial Court produced by the learned Sr. Special Prosecutor, NAB shows that the whole delay could not be attributed solely to the prosecution. Pretty enough adjournments were certainly caused for one or the other reason on the part of the accused petitioners,
18. Even on merits we find that despite the enormous volume of the financial implications the role ascribed to the petitioners and the liability alleged against them is proportionately much less than the overall liabilities of the Bulls and Bears (Pvt.) Ltd. For example, the petitioner Ulfat Salim has been mentioned by the P.W.14 as Manager Marketing and not as a Director. He was also not pioneer Director of the company and had joined only on 3-1-2003 in place of father of Shahid Hassan Awan. We have also observed, and this observation shall of course be without prejudice to, the evidence to be adduced in the trial and the determination of the merits of the case, that the name of Ulfat Salim was not given as Director in the winding up petition filed against the company. These circumstances clearly make out a case of further enquiry against Ulfat Salim, petitioner.
19. Similarly the liability of Majid Rashid is subject to determination I by further enquiry at the time of trial especially for the reason that the limit and extent of his powers/authority as. Director is also in I question.
20. The learned counsel for Zubair Ali Khan has specifically referred to the verification of the claims concluded in the case of Messrs.' Bulls and Bears Financial Data Services (Pvt.) Ltd. By Hassan Naeem and Company, Chartered Accountants at the instance of the NAB and pointed out that the break up of the liabilities given in the report shows that the major part of the liability was not on the shoulders of the company i.e, Messer's Bulls and Bears or the petitioners as its alleged Directors, According to the learned counsel the liability of the petitioners even as Directors was thus almost for only 1/13th and 1/8th respectively in Pak rupees and US$ as compared to the other/remaining liability calculated by the said Chartered Accountants.
21. The size of the financial scam which in this case is involved is of course enormous--enormous enough to have had a wide spread impact and panic among the large number of petty investors who having been tempted by verdant promises of exorbitant returns had put their total assets in a pocket which forever was going to be beyond their reach. The poor fellows could not realize that they were placing themselves at the mercy of those who were to be the riches at their altar. It is here that the cases of the petitioners can be deciphered on individual liability or the ratio of their obligation against the overall volume of the case or inter se the Directors etc. As already observed despite huge collective liability to proportion of the liability of the petitioners has been worked out (tentatively) by the NAB within the 1/13th and 1/8th share mentioned in the preceding paragraph.
22. Consequently, we allow all the three subject petitions and admit the petitioners to bail provided they furnish bail bonds in the sum of Rs,20 million each with one surety each in the like amount to the satisfaction of the learned trial Court. The petitioners shall keep on appearing before the learned trial Court on each and every date of hearing till the final decision of the case.
23. If not already surrendered by the petitioners or recovered during investigation, the passports, if any, of the petitioners shall be surrendered by them to the learned trial Court before their release which in turn shall be handed over to NAB authorities against proper acknowledgment. Similarly the names of the petitioners shall also be placed on the Exist Control List, if not already included in it.