SYED SAJJAD HASSAN SHAH, J.---By way of this judgment, I propose to dispose of Criminal M.B Nos.23/2011, 34/2011, 52/2011 and 65/2011 as all the four petitions have arisen from one and the same F.I.R. No,26 of 2010 dated 23-12-2010 registered under sections 409/420/468/477-A, P.P.C. at Police Station, FIA, D.I.Khan.
2. Briefly stated facts of the case are that the above mentioned FIR.- was registered against the petitioners/accused Khizar Hayat, Ibrar Hussain Shah, Hafiz Abdul Wadood and Bashirullah on the written report of complainant Jehangir Khan, Manager Habib Bank Limited for embezzlement of an amount of Rs,37.874 Million in Habib Bank Limited Ashiana Shopping Centre Branch, D.I. Khan.
3. The learned counsel appearing on behalf of petitioner/accused Ibrar Hussain Shah (Manager) contended that case against the petitioner is concocted by rival group employed in the same Bank as being against his promotion. He further contended that there is no oral or documentary evidence available on the file connecting the petitioner/accused with the crime. Moreover, there are no signatures or counter signatures or stamping or verification of the petitioner available on the record. He further contended that the claim of the Bank is wrong, hypothetical and enjoying no backing of any material. The petitioner/accused legally cannot be prosecuted in absence of any material against him. He has nothing to do with the business of his subordinate staff. All the functionaries of the Bank have been assigned their job and role in accordance with the rules of business. The transactions effected day to day are directly controlled by Manager Operation. He further contended that Khizar Hayat Assistant Manager used to enter all the transactions in computer and cancelled them. Bashirullah Manager Operation used to order cancellation. The learned counsel disclosed that the password of petitioner-accused was secretly stolen and used without his permission during his absence with mala fide intention. He further argued that there is no proof brought on record regarding the depositing of amount in the Bank by the petitioner/accused. Moreso, no recovery is made from the possession of the petitioner/accused. He contended that the case against the petitioner/accused is one of further inquiry and he is entitled to the concession of bail. Lastly he argued that at bail stage, tentative assessment of the material on record has to be made and no deep scrutiny is permissible.
4. The learned counsel appearing on behalf of petitioner/accused Khizar Hayat (Assistant Manager) at the very outset refuted the arguments of learned counsel for the petitioner/accused Ibrar Hussain Shah and contended that Khizar Hayat has been roped in the instant case by Ibrar Hussain Shah though he is having no concern with the embezzlement. He has challenged the audit report by contending that it is not in accordance with rules and regulations. He further contended that the officers of Bank have conducted the inquiry, whereupon the case has been registered against the petitioners by the FIA which is not permissible under the law. He further argued that the account holders have no claim against the petitioner/accused and there is a delay of three months in lodging the report and offence does not fall within the prohibition contained in section 497, Cr.P.C, the statements of account holders have not been recorded, therefore, case against the petitioner/accused is of further inquiry.
5. The learned counsel appearing on behalf of petitioner/accused Hafiz Wadood (Cashier) contended that the petitioner/ accused has no hand in the alleged case of embezzlement, as he has been attributed no role in the inquiry conducted by the Bank and that he is innocent and falsely charged. He contended that the competent authority has withdrawn the suspension order of the petitioner/accused, meaning thereby that he was not involved in the case.
6. The learned counsel for petitioner/ accused Bashirullah (Senior Supervisor/ Manager) contended that the petitioner is innocent and falsely charged. He further contended that charges against the petitioner/accused have not been defined and he has been implicated in the case for certain ulterior motives. Moreso, the allegation levelled by the learned counsel for petitioner Ibrar Hussain Shah is absolutely wrong and baseless, the petitioner/accused in no way concerned with the allegations of embezzlement.
7. The learned counsel for the respondent/Bank argued that the petitioner/ accused Ibrar Hussain Shah being the Head of the Branch, is wholly solely responsible for over all supervision and performance of duties of his subordinate officer/official of the Branch. It is the duty of the Chief Manager/Manager to watch and check the entire business conducted in the Bank by his staff and also responsible for any defalcation and shortcomings found in the business of Bank as well as the deposits made by the account holders from time to time. The commission of offence of fraud, misappropriation, embezzlement or breach of trust is not the job of single person unless all the members of the staff would not accomplish the same. After the inquiry, it has transpired that the act of embezzlement spreads over a period of three months, all of them along with one Pasham Khan have indulged in defalcation of the public money, thus, the colossal loss caused to the Bank as it was deprived of the interest of the embezzled amount, but the national exchequer has also sustained the loss due to stoppage of recovery of taxes etc. which runs in lacs of rupees. The amount has been embezzled with the collaboration of petitioners/accused, so far detected as Rs,37.874 millions. However, total amount has yet to be determined after minute scrutiny of the Bank record. In support of his argument, he has pointed out that the petitioners have returned a portion of embezzled amount and they have also furnished undertaking duly signed by them for return of the rest of amount. Pasham Khan accused is equally involved in the embezzlement because his account has been considered safe for crediting the embezzled amount. Lastly, prayed that the petitioners-accused are not entitled for the concession of bail. The learned counsel appearing for the State adopted the arguments of learned counsel for the Bank.
8. Arguments of learned counsel considered and record carefully perused.
9. The arguments of learned counsel for the petitioners/accused required deep appreciation of the record collected by the prosecution, which is not permissible at bail stage. However, the material collected by the prosecution tentatively assessed for the purpose of disposal of the present bail petitions.
10. The record reveals that the petitioner/accused Ibrar Hussain Shah being the Chief Manager/Manager had authority and also enjoying the powers of supervisory control over the functioning and business conducted by his subordinate staff during banking hours of the Branch.
As such, after the closing of business hours, his duty was to inspect and sign the record maintained of daily transaction including the credit and debit made in any manner. It is stated during the course of arguments that the fraud and misappropriation has been committed by the subordinate staff of the Bank, even then by no stretch of imagination it can be said that the petitioner/accused was not in knowledge of the defalcation of huge amount which runs in millions as it was not the business of a day but spread over a period of three months. It was complained by the account holders, who wanted encashment of their cheques but nothing was available in their accounts for such encashment and resultantly, an inquiry was conducted which resulted in a disclosure that for the last few months, misappropriation has been made and that the huge amount after receiving from the account holders, has not been deposited in their accounts. However, the cash/transfer/credit/clearance cheques and every instrument received from customers were initially entered/posted in the system by the petitioners/accused/employees of the Branch but after printing of Journal Reports (JRs) the entries pertaining to .the embezzled amount were cancelled and 'hot credited in the Bank record. The inquiry conducted by the authorities, found the defalcation of Rs,37.874 million.
11. As discernible from the perusal of record . that one Pasham Khan maintained account in his own name with the Bank. A sum of Rs,14.767 million was credited in joint account No,15407900057301 maintained in the name of Pasham Khan and Shoaib Khan. Moreover, Pasham Khan had also maintained another A/C No,15407900046203 in his own name. On 21-7-2010 the former account was debited with a sum of Rs,13 million through simple debt voucher and contra credit was given to the current account No,15407900046203, A just to en cash Cheque No,1194568 for Rs,13 million drawn on the account and presented in clearing by ABL on 21-7-2010 in connivance with Pasham Khan knowing fully well that amount does not belong to Pasham Khan. Another cheque amounting to Rs,8.600 Million was arranged for Pasham Khan through account maintained by another account holder namely Muhammad Rauf. 'Total sum of Rs,21.600 Million was paid to Pasham Khan.
In this respect, Pasham Khan has sworn affidavit that he was in need of money and requested the Manager for the payment of amount and in turn, he had issued two cheques to Ibrar Hussain petitioner/accused. The record also reveals about the transfer of fund from joint account of Khizar Hayat and Mst. Irum, his wife to customer Pasham Khan. The petitioners used to have issued the fake receipts to the account holders after receiving amount for deposit in their accounts, but the petitioners neither credited to die accounts of the customers nor entered in Cashier Book. The petitioners have also issued the cheque books without any request made by the customers.
Besides, they have also accommodated customers by transferring funds from one account to another without any lawful authority.
12. Affidavits, Bank record pertaining to the account holders, receipts of deposits available on record issued by the petitioners-accused, undertakings, indemnity, affidavits given by the petitioners-accused and also return .of partial amount to the Bank and the other available record, prima facie connect the petitioners/accused with the crime and they cannot absolve themselves from the duties laid on their shoulders by rules and regulations of the Bank. Likewise, Pasham Khan has also admitted in writing about the receipt of amount from the Bank Manager and issuance of cheque for return, of the said amount.
13.As far as the use and theft of passwo rd by one of the accused is concerned, it is to be noted that same can be considered against the said accused because he has made no complaint about the use of his passwo rd by others. There is every possibility that it is the accused who used his passwo rd for illegal gain.
The huge amount involved in the case has been utilized by the petitioners/ accused. The account holders were deprived of their profits on their savings consequently public exchequer has also sustained loss. The petitioners/accused being trustee of the Bank conducted the parallel banking business in violation of the Banking Standard Procedure which prima-facie falls within the definition of breach of trust as enshrined in section 409, P.P.C. Besides that on account of such breach, the account holders suffered and lost faith and confidence in the banking system. I rely upon 1995 PCr.LJ 430 wherein, in similar circumstances, the bail was refused where prima facie public property worth crores of rupees had been grabbed by the accused and huge amount of public and trust funds' had been misappropriated by them who were the conscientious beneficiaries thereof. Record did not suggest that the proceedings initiated against the accused were either mala fide or without jurisdiction. One of the arguments on behalf of petitioners is that the proceedings against them have been initiated by the rival group of Bank employees. By simply alleging, "mala tide" does not constitute mala fide unless particulars are given which are missing in this case. Accused were named in the F.I.R. with specific role attributed to them, substantial evidence in support of allegations against the accused has been collected by the prosecution which if taken into consideration along with the probabilities, prima facie showed that reasonable grounds existed to believe that the accused were guilty of the offences alleged to have been committed by them, a majority whereof fell within the prohibitory clause of section 497(1), Cr.P.C.
14. Moreso keeping in view the prevailing financial and economic difficulties being faced by the country, such like events cannot be over sighted and legally discretion cannot be exercised in. favour of the petitioners/accused. Now, it is the high time to curb such illegal corrupt practices in the larger interest of the country. In similar circumstances, it was held by august Supreme Court in a case titled Imtiaz Ahmad and another v. The State (PLD 1997 SC 545) that:-- "(6) Adverting to the above first reason, namely, that all the offences except the offence under section 5(2) of Act 2 of 1947 are bailable and the latter offences not fall under the prohibitory clause under section 497, Cr.P.C., the two Courts below erred in declining bail to the petitioners, it may be observed that by now it is a well settled proposition of law that even in respect of offences not falling under prohibitory clause of section 497, Cr.P.C., the Courts may decline to admit an accused to bail if there exist recognized exceptional circumstances
(7) I may observe that a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail. Similarly, a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail. In the former cases, the practice to allow bail in cases not falling under prohibitory clause of section 497, Cr.P.C. in the absence of an exceptional circumstance may be followed, but in the latter category, the Courts should be strict in exercise of discre tion of bail. In my view, the above category of the offenders belong to a distinct class and they qualify to be treated falling within an exceptional circumstance of the nature warranting refusal of bail, even where maximum sentence is less than ten years R.I for the offence involved provided the Court is satisfied that prima facie there is material on record to connect the accused with the commission of concerned offence involved.
The Courts not be oblivious of the fact that at present Pakistan is confronted with many serious problems/difficulties of national and international magnitude, which cannot be resolved unless the whole Pakistani nation as a united entity makes efforts. We desire to amass wealth by illegal means has penetrated in all walks of life. The people commit offences detrimental to society and the country for money. Some of the holders of public office commit or facilitate commission of offences for monetary consideration. In the above scenario the Courts should be reformation- oriented with the desire to suppress the above mischief. To achieve the above objective, it is imperative that the Courts should apply strictly the laws designed and intended to eradicate the above national evils."
16. For the reasons mentioned above, the petitioners/accused are not entitled to the concession of bail at this stage, therefore, all the four petitions are dismissed.
17. Any observation made in this order would not prejudice the ultimate decision of the case.