ORDER Through this single order we intend to dispose of Writ Petitions No. 5060 and '5061 of 2011 having commonality of law' and facts viz, in both the petitions the petitioner has challenged order dated 26.2.2011 passed by the learned Judge Special Court (Offences in Banks), Punjab, Lahore whereby non-bailable warrants of arrest have been issued against him in two different cases in addition to seeking transfer of the cases from the learned Trial Court.
2. Succinctly, the facts, as unfurled in these petitions, are that F.I.R, No. 24/2010, dated 12.10.2010 was registered at Police Station Anti-Corruption Circle, Lahore under Sections 409, 420, 468, 471/109, PPG read with Section 5 of the Prevention of Corruption Act, 1947 qua the fraud committed in connection with purchase of land situated in Mauza Toor Warraich for NICL During investigation of the said case it came to light that Mohsin Habib Warriach transferred a sum of Rs, 120 million through Cheque No. 101117, dated 20.4.2010 and another sum of Rs, 100 million through Cheque No. 101115 in Account No, 0128200901 with filled Bank Limited, New Airport Road Branch, Lahore being operated by Adil Manzoor, Director, M/s. Adil Traders, Awan Market Atari, 17-kilometer Ferozepur Road, Lahore. The said Adil Manzoor was interrogated and during investigation he disclosed that he never opened any account with Allied Bank Limited, New Airport Road Branch, Lahore.
Consequently, F.LR. No. 46/2010, dated 22.4.2010 was registered at Police Station FIA Lahore in respect of the offences under Sections 420/468/471, PPC. During the investigation of the said case, the Branch Manager informed the investigating officer that the said account was opened by Muhammad Maalik son of Rasool, Manager of M/s. Al- Tahoor Private Limited, 182-Abu Bakar Block, New Garden Town, Lahore on 22.4.2010. Likewise, during investigation of case F.LR. No. 24/2010 it transpired that said Muhammad Maalik opened fictitious account in Allied Bank Limited, Multan Road, Branch Lahore. Accordingly case F.I.R. No. 5/2011, dated 27.1.2011 was registered against said Muhammad Maalik at Police Station FIA Lahore under Sections 419/420/468 & 471, PPC. During the course of investigation of the FIRs against him, the aforesaid Muhammad Maalik admitted that being employee of the petitioner, he^opened the fictitious accounts, received the amounts and delivered the same to the petitioner on his specific instructions.
3. In the background of the aforesaid facts and circumstances, which allegedly pointed towards involvement of the petitioner in the transaction, the investigating agency sent a questionnaire to the petitioner seeking certain information from him. He submitted his reply on 14.1.2011, whereafter he left the country in connection with his business. However, before his return while apprehending arrest, the petitioner moved the Honourable Sindh High Court for grant of pre-arrest bail which was granted to him on 21.2.2011 for a period of three weeks. The said period expired on 15.3.2011.
4. After initial investigation FIA submitted report under Section 173, Cr.P.C. Before the learned Judge, Special Court (Offences in Bank), Punjab, Lahore who vide impugned order dated 26.2.2011 summoned the petitioner through non-bailable warrants of arrest for 16.3.2011; hence these petitions. ' -
5. The learned counsel appearing on behalf of the petitioner submit that there is no evidence available with the respondents to connect the petitioner with the commission of the aforesaid offences in any manner whatsoever; that Mr. Zafar Ahmad Qureshi, Additional Director General,-.
FIA/respondent No. 3, who is supervising the investigation, harbours malice and enmity towards the petitioner and his family which is evident from the fact that he made a statement before the Honourable Supreme Court of Pakistan alleging that he had serious apprehension to his life at the hands of the petitioner and certain persons: that respondent No. 3 is taking undue interest in the case of the petitioner just to show his efficiency and get credit for recovery of large sums of money; that the entire sale price has been received back by the NICL; that there is no claimant of the disputed amount and no bank has been ever defrauded as no loss has accrued to the said Banks; that the company which sold the property in question has no nexus with the petitioner thus he has no role in the sale or purchase of the aforesaid property and that the petitioner is being falsely involved in the case in view of. The fact that he belongs to a wealthy family, enjoys considerable prestige and has a successful political career.
While emphasizing much on the application (CM No. 2/2011) filed by the petitioner in the Constitutional petitions for the grant of bail before arrest, learned counsel for the petitioner have argued that there is no incriminating material on record which could even remotely connect the petitioner with the commission of the alleged offence and in such circumstances the story concocted by the complainant against the petitioner is tainted with mala fide, as such, the petitioner is entitled for the grant of bail, before arrest because the petitioner has falsely been implicated in the case in view of the fact that he belongs to a wealthy family, enjoys considerable prestige and has a successful political career and that if the petitioner is arrested he will be humiliated.
6. On the other hand Zafar Ahmad Qureshi, Chief Investigating Officer, while controverting the contentions raised by the learned counsel for the petitioner, stated that the petitioner's claim that he has no concern with purchase of the land for NICL has no legs to stand upon as during investigation of F.I.R. No. 29/2010 it has transpired that out of the exaggerated amount received from NICL in lieu of sale of land a sum of Rs. 32 .Crores was received by the petitioner, which is yet to be recovered from him; that the investigating agencies have discovered a trail of the aforesaid transactions and money transfers; that a fictitious account was opened in the name of M/s. Adil Traders by using the National Identity Card of Adil Manzoor, who was an ex-employee of Punjab Sugar Mills, Khanewal which is a family concern of the petitioner; that during investigation it came to light that the account had actually been opened by Muhammad Maalik, who admittedly is a Manager of Al- Tahoor Private Limited and works for the petitioner; that the said Muhammad Maalik disclosed during investigation that he had opened the accounts on the direct instructions of the petitioner and had delivered ail amounts received in the aforesaid account to the petitioner; that Rizwan Ali Bhatti, Manager, Umar Faruq and Nadia Faisal, Officers of Allied Bank Limited, New Airport Road Branch, Lahore, got recorded their statements before the investigating agency in which they categorically stated that they had visited the office of the petitioner where they were specifically asked by the petitioner to open the aforesaid fictitious accounts; that according to the report of the handwriting expert the signatures of Adil Manzoor were fictitious; that similarly the account in the name of Khadim Traders at Allied Bank Limited, Chowk Yateem Khana, Lahore, in which a sum of Rs. 10 crores was transferred, was also opened and operated by Muhammad Maalik on the specific direction of the petitioner; that Khalil Ahmad, Manager, Allied Bank Limited/Chowk Yateem Khana, Lahore, Atif Saleem and Mouruf-ur-Rehman, Officers of the Bank during their statements before the investigating agency stated that they had met the petitioner, who had categorically and specifically directed them to open the aforesaid fictitious accounts.
7. We have given anxious consideration to the arguments put forth by the learned counsel for the parties and have also gone through the documents appended with these petitions. During the said exercise, we have noted that in addition to seeking transfer from the learned Trial Court, the petitioner has challenged issuance of non-bailable warrants of arrest against him. A bare perusal of the report submitted by the investigating officer before the learned Trial Court under Section 173, Cr.P.C. The name of the petitioner was mentioned in red ink indicating that he was an absconder.
Thus, the learned Trial Judge rightly issued non- bailable warrants of arrest against the petitioner against which he can move the said Court while explaining his position. "Thus, an adequate alternate and efficacious remedy is available to the petitioner. In the presence of such remedy the present petitions are not maintainable. Insofar as the case-law cited by the learned counsel for the petitioner is concerned, suffice it to observe that the same is of no help to him as the same is not applicable to the present case having distinguishable on facts, circumstances and points of law involved.
8. Now coming to the. Second limb of the prayer made by the petitioner in both the petitions, we are of the view that learned counsel for the petitioner have failed to point out any cogent reason justifying the transfer of the cases from the learned Trial Court to any other Court. The learned counsel for the petitioner has placed reliance on "Mushtaq Hussain Shah v. The State (1986 Law Notes (Lahore) 91). The said judgment is distinguishable on facts as well as the principle of law laid down. In addition, the schedule to the Offences in Respect of Banks (Special Courts) Ordinance, 1984 has since been amended to incorporate Section 420, PPC in the list of scheduled offences.
Even otherwise, it is settled law that a Challenge to jurisdiction of a Court, must in the first instance be raised before the same Court. Admittedly, this has not been done. The instant petitions are therefore not maintainable on this score also.
9. While considering .The application of the petitioner for the grant of bail before arrest, we have noted that the incriminating material collected by the investigating agencies prima facie connects the petitioner with the commission of the alleged offences. A fraudulent scam was prepared and executed to sell certain properties at highly exaggerated price to N1CL and thereby the national exchequer was deprived of huge sums of money, Crores of rupees were transferred from the account of Mohsin Habib Warraich to accounts in the names of Adil Traders and Khadim Traders which were fictitiously opened and operated by Muhammad Maalik, who, as per record of the investigation, works for the petitioner. Ah amount of 32 Crore rupees was deposited in the aforesaid accounts and thereafter the same was withdrawn by Muhammad Maalik without any lawful transaction to support the same. According to the confessional statement made by Muhammad Maalik, he collected the said funds and delivered the same to the petitioner. There is sufficient evidence in the form of statements of managers and other officers of the banks which clearly suggests that the fictitious accounts in which the aforesaid amounts were received were opened with the knowledge and under the instructions of the petitioner. The aforesaid officers of the banks had at different times met the petitioner in his office. He had directed them to open the aforesaid fictitious accounts and that prima facie the investigation being conducted by officials of the Bank have no reason to falsely implicate the petitioner. The respondent has legal and factual basis. We are not convinced that the investigating agencies are motivated by a desire to falsely implicate the petitioner or to damage his prestige* and political career. In this regard reliance is placed on "Muhammad Anwar Samma and another v. The State" (1976 P.Crl.J. 1051).
In view of the fore-going discussion, we do not find ourselves in agreement with the arguments of the learned counsel for the petitioner that the petitioner is entitled *to discretionary relief in the form of bail before arrest. We are of the view that the petitioner has not been able to make out a case for the grant of bail before arrest which is hereby declined.
10. Resultantly, without commenting on the merits of the case lest it prejudice the case of either party these petitions dismissed being not maintainable.