IMAM BUX BALOCH, J.---We propose to dispose of these two Criminal Miscellaneous Applications bearing Nos.277 of 2010 for reduction of surety amount and 281 of 2010 for cancellation of bail granted to respondent No,2 Yasir Bin Muhammad together by a common order.
2. Brief facts of the case are that the respondent No,2/Applicant Mairaj Akhtar Branch Operation Manager of Cosmopolitan Branch Standard Chartered Bank Limited Karachi submitted complaint addressed to Deputy Director FIA alleging therein that the Bank initiated its internal audit of its branch situated at Cosmopolitan Society New Jamshed Road Karachi during internal audit it disclosed that the accused Anas Naseem Siddiqui has made several entries of cash deposits with the narration "Profit Applied" with different amount of profit malafidely from the approved rate of profit paid to the customers unauthorizedly debiting customers accounts and roating through intermediary accounts so as to fund the unauthorized higher profit rate. Fake statement of accounts appeared to have been sent to the customers, It further exposed that the cash deposited in customers account as profit was the amounts withdrawn from various customers account.
Deposit in these various customer's accounts made through pay orders which appeared to a have been issued through forged application from the corporate account of Messrs Central Depository Company Trustees Fund account and other various customers/ corporate accounts. The amount embezzled by the applicant/accused was withdrawn from the CDC account through pay order issued on the basis of fake pay order application.
3. We have heard Mr. Mehmood Alam Rizvi, learned counsel for the applicant in Criminal Miscellaneous Application No,277 of 2010 and Muhammad Ashraf Kazi, learned counsel for Applicant/Complainant in Criminal Miscellaneous Application No,281 of 2010 at length.
4. Mr. Syed Mehmood Alam Rizvi, learned counsel for the applicant mainly contended that co- accused except Anas Naseem Siddiqui has been granted bail in the sum of Rs,10,00,000 and the case of the applicant Yasir Bin Muhammad is at par of co-accused, who have been granted bail.
Learned Counsel has relied upon the bail granting orders of co-accused and contended that the applicant also deserves leniency and surety amount which was already reduced by the learned trial Court may further be reduced up to 10,00,000. Learned Counsel further contended that the bail already granted to the applicant cannot be cancelled on the ground that huge amount is involved in the case. Learned Counsel further contended that the applicant is behind the bars and his ailing father is unable to arrange surety amount. He while concluding his arguments contended that the surety amount may be reduced up to 10,00,000. In reply of arguments of Mr. Muhammad Ashraf Kazi, Learned Counsel submits that the learned trial Court granted bail to the applicant on merits while considering all aspects of the case and there is no cogent reason advanced by the learned Counsel for the complainant for cancellation of bail. The charge has been framed and the case has been commenced. At this stage the Superior Courts declined to interfere with the bail granting order. Learned Counsel in support of his case has relied upon the following case laws:--
(i) Akmal Masih v. Salamat Masih and 4 others (1988 SCM R 918).
(ii) Shamsurrehman v. Muhammad Rafiq and another (PLD 1997 Kar. 194)
(iii) Dil Murad v. Muhammad Aslam and 6 others (1996 PCr.LJ 745)
(iv) Rana Iftikhar Ahmed v. Munir Khan and another (1997 M LD 2541) and lastly
(v) Ghulam Rasool v. Zafar Iqbal and another (1996 P Cr. L J 276).
5. Mr. Kazi, learned counsel for complainant contended that the trial Court has already taken a lenient view and reduced the surety amount to 41 Million out of 75 million and in the circumstances of the case no further lenient view may be taken by this Court in favour of accused/ applicant as the accused/applicant has misappropriated a huge amount of the Bank by playing fraud. He further contended that the authorities relied upon by the learned counsel for the applicant are distinguishable from the facts and circumstances of case in hand. He has vehemently opposed for reduction of surety amount.
6. Mr. Muhammad Ashraf Kazi, learned counsel for the complainant Mairaj Akhtar argued that the learned trial court erroneously granted bail to the respondent/applicant Yasir Bin Muhammad and contended that respondent/applicant Yasir Bin Muhammad has misused his powers and has committed the offence of criminal breach of trust in connivance with other co-accused Anas Naseem and caused loss to the Bank millions of rupees. In such circumstances learned counsel argued that the bail granted to the respondent/applicant Yasir Bin Muhammad may be cancelled.
He has , relied upon the following case laws:--
(i) Muhammad Ilyas, Chief Manager/ Attorney, Allied Bank Ltd. v. Shahid Ullah and others (PLD 2009 SC 446).
(ii) Sikandar Abdul Karim v. The State (1998 SCM R 908).
(iii) Rahimuddin v. The State (1991 PCr.LJ 2188)
(iv) Syed Lakhat-e-Hasnain v. State (2010 SCM R 855)
7. Mr. Shahab Sarki, Learned Standing Counsel has supported the arguments of Mr. Muhammad Ashraf Kazi, Learned counsel for the Complainant-Bank.
8. Mr. Rizvi, learned counsel for respondent Yasir Bin Muhammad while controverting the submission of Mr. Kazi contended that at the first round of litigation before this Court Mr. Kazi sought cancellation of bail of respondent on the ground that surety amount be enhanced but in this second round of litigation he sought cancellation of bail of respondent on merits which is misconceived. The party could not be permitted to raise different pleas at different times in the same case. He further argued that the trial Court has granted bail to the respondent within the purview of section 5(7) of Special Courts Ordinance, 1984 (Offences in Respect of Banks).
9. It appears that applicant Yasir Bin Muhammad was granted bail by the learned trial Court in the sum of Rs .750,00,000 each with two sureties which was subsequently reduced to Rs,4.15 crore and now the applicant Yasir Bin Muhammad wants to further reduce the surety amount to Rs,10,00,000.
This is second round when applicant Yasir Bin Muhammad and Complainant Mairaj Akhtar have approached this Court for reduction of surety amount and for cancellation of bail. Earlier a Criminal Miscellaneous Application No,327 of 2009 was filed by Mairaj Akthar (Complainant) while Criminal Miscellaneous Application No,99 of 2010 was filed by Yasir Bin Muhammad (accused) in Reference No,37 of 2009 vide F.I.R. No,21 of 2009 FIA/CBC-1 Karachi under section 409/420/468/471/477-A/109, P.P.C. The above mentioned two Criminal Miscellaneous Applications have been disposed of by a Division Bench of this Court vide Order dated 26-4-2010, which is reproduced as under:-- "Mr. Muhammad Ashraf Kazi, learned counsel for the applicant has contended that the learned trial Court was in error in granting bail to the respondent No,2/ applicant in Criminal Miscellaneous Application No,99 of 2010 overlooking the provisions of section 5(7) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984. The learned counsel for the applicant has not sought cancellation of bail of respondent No,2 on merits but in fact has sought cancellation, inter alia, on the ground that while granting bail the trial Court should have fixed the surety amount having regard to the gravity of the charge against the accused person.
We have heard the learned counsel and are of the view that the very court, which has granted the bail, has the power to consider this Criminal Miscellaneous Application seeking cancellation of bail on the grounds, which are being pressed before us. We accordingly dismiss this Criminal Miscellaneous Application No,327 of 2009 along with the listed Application with direction to the applicant to approach the trial Court and raise all those points, which he has raised before this court.
As far as Criminal Miscellaneous Application No,99 of 2010 made by the accused seeking reduction in surety amount is concerned, the same is also dismissed with observation that the trial Court shall also decide the same along with the proposed application for cancellation of bail.
10. While dismissing both above mentioned criminal misc. applications this court directed applicants in both Criminal Miscellaneous Applications to approach-the trial Court for seeking their relief. In response of order of this Court, Applicant Yasir Bin Muhammad filed application for reduction of surety amount before the learned trial Court, which was dismissed on 2nd September, 2010 with the following observation: - "From the perusal of the record, and arguments advanced by the parties, and the precedent cited above I would like to reproduce the extract provisions of section 5(7) of Special Courts Ordinance, 1984 (Offences in Respect of Banks) as under:-- "Where an accused person is released on bail, the amount of bail shall be fixed having regard to the gravity of the charge against such person and where the charge specified and amount in respect of which the offences is alleged to have been committed, shall not be less than the said amount".
The law cited above its plain reading indicated the word shall means the amount of bail shall be fixed having regard to the gravity of the charge against such person where the amount is alleged not less than that amount. So no room left for this court to consider the request made by the learned counsel for the applicant/accused Yasir Bin Muhammad therefore, this application for reduction of surety stands dismissed."
11. Complainant Mairaj Akhtar also approached the trial Court in respect of Order dated 26-4-2010 for cancellation of bail but his request was declined by the learned trial Court vide Order dated 2nd September, 2010, with the following observations:-- "This court at this conjuncture in the light of precedent cited above has to see the appreciation of facts and circumstances of the case in the order dated 4-11-2009 granting the bail to the accused Yasir Bin Muhammad which is clear from the earlier order of this Court which had been done so there is no legal And factual infirmity of fundamental nature found in the order dated 4-11-2009 while granting the bail. Hence, I am afraid this application for cancellation of bail stands dismissed."
12. We have considered submissions advanced at the bar by learned counsel for the respective parties and have also gone through the law cited at the Bar. The learned trial Court has already been reduced the surety amount to 41 Million instead of 75 Million. The ambit of section 5(7) of Special Courts Ordinance, 1984 (Offences in Respect of Banks) has already been complied with by the learned trial Court while reducing the surety amount, hence, we see no plausible reason to agree with the contentions raised by Mr. Syed Mehmood Alam Rizvi, learned counsel for the applicant Yasir Bin Muhammad. We have also examined the contention of Messrs Muhammad Ashraf Kazim and Mr. Shahab Sarki, Standing Counsel and law relied upon by both the counsel.
13. It appears that Mr. Muhammad Ashraf Kazi, learned counsel for the complainant Mairaj Akhtar has not sought cancellation of bail of accused Yasir Bin Muhammad on merits but stated that according to provisions of Section 5(7) of the Offences in Respect of Banks (Special Courts)
Ordinance, 1984 the trial Court should have fixed the surety amount having regard with the gravity of the charge. We have perused the order of the learned trial Court granting bail to the applicant/ respondent No,2 in the sum of Rs .7,50,00,000 with two sureties, and the same has been reduced to Rs,4.15 crore on the application of applicant/accused Yasir Bin. Muhammad and the same is according to section 5(7) of Offences in Respect of Banks (Special Courts) Ordinance, 1984. Mr. Muhammad Ashraf Kazi learned counsel for the complainant in first round of litigation has not sought cancellation on merits as apparent from the Order dated 26-4-2010 passed by the Division Bench of this Court. The bail was granted to the applicant/respondent No,2 Yasir Bin Muhammad which is within the ambit of section 5(7) of Offences in Respect of Banks (Special Courts)
Ordinance, 1984 and calls no interference by this Court.
14. In view of above facts and circumstances, we do not find any illegality or material irregularity committed by the learned trial court while passing order granting bail to the applicant/respondent No,2. Once a ground was available to the applicant/complainant and the same was not pressed, now in second round of the litigation he cannot be permitted to press the same. We see no merits in both the Criminal Miscellaneous Applications bearing Nos.277 of 2010 and Criminal Miscellaneous Application No,281 of 2010 and the same were dismissed by a short order, announced in open Court.
Above are the reasons of our short dated 26-10-2010.