' SALMAN HAMID, J.---Present Bail Application is an outcome of the bail refused by the Special Court, (Offences in Banks) Sindh at Karachi in Case No,45 of 2011 vide Order dated 21-6-2011.
2. The narration of F,I.R. No,24 of 2011 under sections 409, 420, 468, 471, 477-A, 34 and 109 Pakistan Penal Code of Police Station FIA, CBC, Karachi lodged against Aftab Ahmed Lakho (the Applicant) and other four accused, named therein were that upon a complaint from one Mr. Muhammad Majeed Awan, AVP/Manager, NBP, KDA/Civic Centre Branch, Karachi, that daily income tax and withholding tax on motor vehicle tax received by Excise and Taxation Departments on their counter as per practice used to be deposited by them at the counter of the NBP Civic Centre Branch Karachi in the same evening about 6/7 post meridian which was to be received by Muhammad Haseeb Khan, Operation Manger and Syed Hashim Raza Rizvi, senior head cashier, and in charge cash who were bound to transfer the said amounts to National Bank of Pakistan, Income Tax Building Branch Karachi, (link branch) the following day. It was also mentioned that Syed Hashim Raza Rizvi was to account for the said amounts into respective account daily and it was also the duty of Muhammad Haseeb Khan, to verify that the amounts are being transferred to the link branch. It was also mentioned that the Assistant Commissioner, Inland Revenue Zone V, Regional Tax Officer-II, Karachi in terms of Letter No,ACIR/ZoneV/RTO-II/2011 dated 19-4-2011 asked Muhammad Haseeb Khan to confirm if the amount of Rs,402,595,800 and Rs,427,931,847 (total Rs,830,527,647) being the collection amount of income tax and withholding tax on motor vehicle tax for the period July, 2010---March, 2011 had been deposited into the federal treasury and to provide evidence of such deposits. In response Muhammad Haseeb Khan vide Letter No,KDA/ADV/2010 dated 27-4-2011 confirmed deposit of sum of Rs,639,963,347 out of Rs,830,527,647 for the period July, 2010, March, 2011 in the federal treasury and also provided copies of scrolls as evidence. For the remaining amount of Rs,190,564,300 it was stated that the same are under verification and challans would be completed within a few days. However, subsequently the Assistant Commissioner, Inland Revenue Zone-V, Regional Tax Office-II, Karachi, clarified that the total un-deposited amount was Rs,261,411,407. In view of such shortage of amount, Mr. Inayatullah Ansari, manager of the concerned branch, under instructions of the controlling office asked Muhammad Haseeb Khan and Syed Hashim Raza Rizvi to immediate reconcile and verify the amount of deposit along with challans. Upon failure to do so, on 2-5-2011 along with Mr. Syed Mehmood Jaffer, 0G-1/compliance officer, in presence of witnesses namely Masood Ahmed 00-II, Mrs. Bilqis Bano Rizvi OG-III and Ms. Talat Naz, assistant searched the drawer of the cash department and found 71 challans lying therein pertaining to the period from July, 2010 to December, 2010, amounting to Rs,176,844,995 of income tax/withholding tax in respect of motor vehicle tax without cash/transfer received stamps and signatures of the cashier and of the joint custodians. These challans appeared not to have been sent to the link branch as per procedure and practice. These challans were therefore taken into custody in presence of above witnesses.
Challans pertaining to the period January, 2011 to 31-3-2011 could not be traced amounting to Rs,84,566,412. In F.I.R., it was also mentioned that the present applicant was a joint custodian with Syed Hashim Raza Rizvi for some period during July, 2010 to March, 2011 and Mr. Masood Ahmed was also joint custodian with Syed Hashim Raza Rizvi from November, 2010 to 12-5-2011 and in absence of Syed Hashim Raza Rizvi, senior head cashier in charge cash, Mr. Muhammad Kamran OG-II performed his duties in his place. In view of such disclosure, name of the applicant and other four persons transpired in the F.I.R. For the commission of offences of criminal breach of trust, falsification of accounts and frauds and forgeries in capacity as public servants.
3. In backdrop of the above facts, learned counsel for the applicant argued that it would be clear from the contents of the first information report and also from the charge sheet that the applicant is innocent and that he did not commit any offence. It was urged that the F.I.R. Itself shows that it was the legal obligation of Syed Hashim Raza Rizvi to account for the ammounts daily and was also the duty of Muhammad Haseeb Khan to verify that the amounts are transferred to the link branch. Therefore, it was asserted that according to the narration of F.I.R. Itself the applicant was not responsible and/or accountable for the offences for which he is charged. Nowhere from the narration of the F.I.R., it was argued, is established that the applicant is involved in the abetment as alleged against him. Then it was implored that no recovery was made either on pointation of the applicant or from him. Asserting further, it was mentioned that all the recoveries were made from other accused persons. It was also pointed out that in the charge sheet it was clearly mentioned that total 71 challans amounting to Rs,176,844,995 had been recovered from the locked drawer of Syed Hashim Raza Rizvi and Muhammad Kamran and that such 71 challans had not been processed into the system by such persons. It was argued that narration of 161 Criminal Procedure Code statement of Bilqis Azam would show that drawers were opened after getting the keys from one Masood by the manager in presence of others. Nowhore such recovery was attributed with applicant. It was also argued that no specific allegation has been raised against the applicant and that despite thorough investigation no evidence (corroboration) had .Been collected/found against him. It was categorically mentioned that it was not the responsibility of the applicant to deposit the alleged embezzled amount with the link branch but it was the duty of senior head cashier in charge and of the operation manager to deposit the amount with the link branch. It was also urged that the applicant was not the joint custodian with senior head cashier in charge except for few days in the month of July, 2010 when he was handed over additional charge of a cashier. It was also mentioned that the applicant was a remittance officer, performing his functions within the branch and had nothing to do with the alleged offences. It was also raised that it was the duty of bank official, namely Jaffer Mehmood OG-I (checking officer/ compliance officer) to check the vouchers and deposit the amounts with the link branch and confirm the bank as well as to maintain the records/transactions, dealing between the bank and its clients. It was also urged that statement of 10 prosecution witnesses recorded, by the Investigating Officer under section 161 Criminal Procedure Code do not directly or indirectly involve the applicant in commission of alleged embezzlement and that the applicant has been implicated only on the basis of frivolous doubts as the applicant for some time was a joint custodian with Syed Hashim Raza Rizvi.
4. It was asserted that in the above facts and circumstances a case of further inquiry has been made out and therefore the applicant was entitled to the concession of bail. It was also asserted that the offences with which the applicant has been booked are not covered by the restrictive limb of section 497 of Criminal Procedure Code.. Next it Was mentioned that it is a settled principle of law that bail in cases of the nature in hand is a rule while rejection an exception. It was also mentioned that no evidence has been discovered to indicate that the applicant is a beneficiary of the embezzled money. Learned counsel asserted that the prosecution failed to firmly show that the documentary evidence collected disclose any direct participation of the applicant in commission of alleged offence. In support of his contentions, the learned counsel for the applicant relied upon.
Tariq Bashir and 5 others v. The State (PLD 1995 SC 34), Wasi Ahmed v. The State (2010 YLR 2299), Inam-ul-Haq v. The State (2000 YLR 289), S.E. Manoha v. The State (1987 PCr.LJ 459) and Saeed Ahmed v. The State 1995 SCM R 170.
5. Confronting the bail application, the learned counsel for the Complainant, argued that the applicant is not entitled to bail inasmuch as his name is available in the F.I.R. And he is directly connected with the offence. It was also mentioned that certificate of clearance dated 20-8-2010 contains his signature wherein it was certified that 812 payment orders have already been credited in motor vehicle account on 6-7-2010 which prima facie shows his direct involvement in the embezzlement of banks/public money and that the applicant was the joint custodian of the pay orders received, therefore, he is a direct beneficiary of the embezzled amount. It was also asserted that the applicant along with other co-accused was conducting parallel banking and that in view of subsection (6) of section 5 of Offences in Respect of Banks (Special Courts) Ordinance 1984 (1984 Ordinance), the courts would not allow bail if there appears reasonable grounds for believing that the, accused has been guilty of a scheduled offence. It was, therefore, contended that prima facie the documents connect the applicant with the offence in the present case. The learned counsel also argued that recovery was not made from the applicant as he has spent the money.
6. The learned standing counsel adopted the arguments of learned counsel for the complainant but added that it was; the common responsibility of the applicant being the joint custodian and he having failed in performing that, appears to be involved in the embezzlement of huge amount and causing loss to the public exchequer. It was specifically mentioned by the learned standing counsel that the case of the applicant falls squarely within the ambit of prohibitory clause of section 497 Criminal Procedure Code and therefore he is not entitled to bail.
7. We have heard arguments of the learned counsel; have gone through the record and also the precedents cited by the learned counsel for the applicant. It is clear from the charge sheet that 71 challans were recovered from the locked drawer of Syed Hashim Raza Rizvi and Muhammad Kamran. Even the F.I.R. In paragraph 6 says that, "in view of the facts mentioned above Mr. Muhammad Haseeb Khan son of Abdul Majeed Khan, OG-I/Operations Manager CNIC No,41303- 1501320-1 and Syed Hashim Raza Rizvi son of Syed Raza Imam, OG-II/Senior head Cashier Incharge, CNIC No,42101-1879861-5 have embezzled the amount of Rs,261,411,407 while it was also the duty and responsibility of Mr. Aftab Ahmed Lakho son of Shah Nawaz Lakho CNIC No,42201-0429427-1, Mr.Masood Ahmed son of Muhammad Latif, Custodian CNIC No,42101-8836174-1, Mr. Muhammad Kamran son of Muhammad Arman, OG-II/Senior Head Cashier, CNIC No,42201-7613262-5 to deposit the embezzled amount with the link branch". The applicant is not shown to have had the responsibility and duty as joint custodian, to deposit the amount with the link branch. The extent of this responsibility and duty in view of the statement showing daily collection of cash/pay orders at Motor Registration Wing, Karachi and deposit in National Bank of Pakistan, KDA Civic Centre Branch for the month of July, 2010 appears to be that of Muhammad Haseeb Khan and of Syed Hashim Raza Rizvi and not of the applicant. A perusal of this statement would show that 812 pay orders of Rs,7,940,103 were deposited in N.B.P. KDA Civic Centre Branch on 6-7-2010. The statement is signed by four officials namely (1) Ali Muhammad Baghio, Chief Accounts Officer, Motor Registration Wing, Karachi, (2) Waheed Shaikh, Excise and Taxation Officer and Motor Registration Authority (NR-IMP)
Karachi, (3)' Syed Hashim Raza Rizvi and (4) Muhammad Haseeb Khan. The certificate of clearing dated 20-8-2010 of 812 pay orders on 6-7-2010, therefore, prima facie, in itself does not show that the applicant had misappropriated the pay orders' amount. Further upon examination of the F.I.R., save the allegation that the applicant being joint custodian was responsible for the deposit of the amounts in the link branch, no other incriminating evidence is available against him. It is also clear that till date nothing has been recovered from the applicant. At this stage at least, it seems that the applicant was not beneficiary of the embezzled amount and that such or part thereof had not been recovered from him but from other co-accused and that too oil A their own pointation.
8. In the case of Tariq Bashir, the Hon'ble Apex Court laid the rule that, "there is no concept of punishment before judgment in the criminal law of the land. The question of grant/refusal of the bail is to be determined judiciously having regard to the facts and circumstances of each case.
Where the prosecution satisfies the Court, that there are reasonable grounds to believe that the accused has committed the crime falling in the first category the Court must refuse bail. On the other hand where the accused satisfies the Court that there are not reasonable grounds to believe that he is guilty of such offence, then the court must release him on bail. For arriving at the conclusion as to whether or not there are reasonable grounds to believe that the accused is guilty of offence punishable with death, imprisonment for life or with 10 years' imprisonment, the Court will not conduct a preliminary trial/inquiry but will only make tentative assessment i,e, will look at the material collected by the police for and against the accused and be prima facie satisfied that some tangible evidence can be offered, which if left un rebutted, may lead to the inference of guilt.
Deeper appreciation of the evidence and circumstances appearing in the case is neither desirable nor permissible at bail stage. So, the Court will not minutely examine the merits of the case or plea of the defence at that stage." It was further held in the cited precedent; "question of benefit of reasonable doubt is necessary to be determined not only while deciding the question of guilt of an accused but also while considering the question of bail because there is a wide difference between the jail life and a free life. So, benefit of reasonable doubt about occurrence itself, identity of the accused, part allegedly played by him in the occurrence his presence on the spot and on the question of his Vicarious liability, would go to him even at bail stage". Putting this precedent in juxta position to the facts and circumstances of the present case, it appears that so far the evidence which has been collected does not directly involve the applicant with the offence and that none of the alleged incriminating 71 challans were recovered from the applicant. In the case of Wasi Ahmed, it was held by a Division Bench of this Court that since no recovery had been made from the accused and the case hinged mainly on the documentary evidence which has been collected by the prosecution and there was no possibility of tampering with the same, the case of further inquiry had been made out, the accused was therefore enlarged on bail. In the case of S.E. Manoha a Division Bench of Lahore High Court enlarged the accused on bail when it was shown that the accused was not the beneficiary of the alleged irregularities and that the accused was also not found deriving any gain by allowing concession in depositing margin money and no mala fides had been attributed to the accused in granting credit facilities to the parties. It was therefore held by the Division Bench that a case of further inquiry had been made out and the applicant therein was enlarged on bail. In the case of Saeed Ahmed, the apex court enlarged the accused on bail when it came to the conclusion that the case entirely dependant upon documentary evidence which was in possession of prosecution and there was no possibility of tampering of the same by the applicant. The petition for leave to appeal was converted into appeal and the bail was granted to the accused under the circumstances. Keeping in view the dicta of these proceedings and such are compared with the present case, it would be seen that similar is the position in the case in hand inasmuch as all the documents those have been collected cannot possibly be tampered by the applicant and that prima facie such documents do not at this stage of time connect the applicant with the offence. Whatever material has been collected by the prosecution so far seemingly does not connect the applicant from availing the benefit of the embezzled money.
Nothing was recovered from the applicant or it is not shown that he (the applicant) was living beyond his means or that anything was recovered upon his pointation from his possession. The only recoveries those have been made were from other co-accused and that too on their own pointation.
9. As far as the grounds for resistance of the bail taken by the learned counsel, for the complainant and the standing counsel, suffice to observe that all such grounds by itself raise the point of further inquiry inasmuch as it was mentioned by the learned counsel that the applicant was direct beneficiary of the embezzled amount but till the date of hearing of this application nothing was brought on record to substantiate the same; as to the documentary evidence, we have been supported by various precedents that when the case is merely dependent on documentary evidence which documentary evidence is in possession of the prosecution, the question of tampering does not arise. Prima facie there is no reasonable ground to connect the applicant with the crime and the case against him seems to be that of further enquiry.
10. Looking at the above fact and circumstances of the case and the precedents, we are inclined to enlarge the applicant on bail, provided he furnishes solvent surety in the amount of Rs,500,000 and PR bond in the like amount to the satisfaction of the Nazir of this Court. Bail Application is disposed of accordingly. Needless to mention that above is a tentative assessment which shall not prejudice the trial in any manner.