MUHAMMAD TASNIM, J.---Applicant is booked in Crime No,20/2011 dated 8-4-2011, under Section 409/419/420/468/471/ 109/34 P.P.C., P.S F.I.A., Crime Circle, Karachi. Initially the applicant applied for bail before the learned Special Court (Offences in Banks) Sindh at Karachi, but the bail application of the applicant was rejected by the trial Court per order dated 26-9-2011. Against the aforesaid order present bail application has been filed.
2. Brief facts, as per F.I.R., are summarized that Assistant Director, FIA CBC, Karachi received complaints of M/s Muhammad Aabid and his son Babar alleging therein that Bank Al-Falah concerned officers dishonestly and malafidely sanctioned a number of auto loans on bogus documents, besides repossessed a good number of vehicles and auctioned the same on throw away prices to their favorites and in this process they also misappropriated leviable CED/FED taxes in billion of rupees. It is further alleged that consequent upon Enquiry No,01/2010, it has been prima facie established that Bank Al-Falah officials responsible for omission and commission of crime i,e, sanctioning bogus auto loans mentioned below in complicity and connivance with each other and thereby causing loss to the bank and gain to themselves:- Sr Name of Applicant Vehicle numberProposal # Name of Branch Officers responsibleFinance AmountName of the Branch
1. Raja Abdul Rahim S/o Muhammad ArifKM-4769 1495 Introducer Stanley JosuphLoan Amount 2062500/-PECHS Branch 42201-7470341-5 Branch ManagerMurad UsmaniDown Payment 687500/- 2 Shahzad S/o Haji Salah Muhammad KM-4328 1518Introducer Menhaj- ShamimLoan Amount 1875000/- Cloth Market Branch42000-7466966-9 Branch ManagerFasial Pingal, B.M.
Wahid Dada, Area ManangerDown Payment 625000/- 3 Shahzad S/o Haji Salah Muhammad KM-9746 1547Introducer Menhaj- ShamimLoan Amount 1875000/- Cloth Market42000-7466966-9 Branch ManagerFasial Pingal, B.M.
Wahid Dada, Area ManangerDown Payment 625000/- 4 Khalid Rasheed S/o Abdul Rasheed AMC-068 4140Introducer Safdar MehdiLoan Amount 8072100/- Main Branch Branch ManagerShahid PervaizDown Payment 960900/- The above facts constitute commission of offence punishable under Sections 409/419/420/468/471/109/34, P.P.C. Hence, the registration of the case against accused perons namely Wahid Dada, Area Manager, Murad Usmani, B.M, Faisal Pingal, B.M, Shahid Pervaiz, B.M, Stanley Joseph, Minhaj Shamim, Safdar Mehdi and others was made out/registered and Inspector Zia Hassan Rizvi was entrusted with the duty to investigate the case.
3. From the perusal of record it appears that after lodging of aforesaid F.I.R. The applicant applied for bail prior to submission of challan before the learned trial Court on 11-4-2011, but such bail application was dismissed by the trial Court on 21-4-2011. Thereafter the applicant filed Bail Application No,505/2011 before this Court which came to be dismissed by the learned Division Bench of this Court per order dated 28-4-2011. During the pendency of the aforesaid bail application before this Court the F.I.A. Has submitted the first interim challan on 23-4-2011. After submission of the first interim challan the applicant once again repeated the bail application before the trial Court which was also dismissed on 4-6-2011. It appears that F.I.A. Has submitted second supplementary challan before the learned trial. Court and on submission of such challan another bail application was filed by the applicant before the trial Court which was also dismissed vide order dated 26-9-2011. After the dismissal of said bail application the present bail application has been filed before this Court.
4. Mr. Muhammad Ashraf Kazi, learned counsel for the applicant has submitted that the applicant has been falsely implicated in this case and his earlier bail application was dismissed by the learned Division Bench of this Court, considering the default in hundred of cases amounting to more than Rs,202 million in P.E.C.H.S. Branch and Rs,57 million in main branch. Learned counsel submits that after disposal of the earlier bail application by the learned Division Bench of this Court second supplementary challan was submitted on 19-9-2011 and third supplementary challan was submitted on 25-10-2011. He submitted that second supplementary challan has narrowed down the controversy relating to P.E.C.H.S. Branch to six Auto Cars Loans only. Learned counsel further submitted that in the challan the applicant has been cited as an accused, whereas other accused persons namely Eric Stanley Joseph has been shown as absconder, and Waheed Dada, Area Chief has been let-off by the F.I.A. Authorities and other co-accused Adeeb Haider was not shown as an accused in the challan. Learned counsel says that the present bail application has been filed in the changed circumstances as in the earlier round learned Division Bench of this Court had disposed of two Bail Applications Nos.504/2011 and 505/2011 by a common order dated 28-4-2011, considering the alleged Auto Cars Loan default in both main branch and P.E.C.H.S. Branch. Learned counsel submitted that present applicant has no concern with the main branch of Bank Al-Falah as he was working in P.E.C.H.S branch and the controversy relating to P.E.C.H.S. Branch has been narrowed down to six Auto Cars loans only as mentioned in the second supplementary challan dated 19-9-2011. Learned counsel for the applicant submitted that perusal of second supplementary challan shows that alleged bogus car loan mentioned at serial No,1 was processed and signed by the other senior officers of the P.E.C.H.S. Branch and the applicant in good faith had also put his signature, whereas Auto Cars Loan mentioned at serial Nos.2 & 3 were neither processed by the applicant nor they were having his signatures. With regard to Auto Car Loan mentioned at serial No,4 learned counsel for the applicant submitted that it was not a fictitious loan, but the same was granted to customer Muhammad Ameen who committed default in payment of instalments forcing the Bank to file a suit for recovery of money against the said borrower and such suit has been decreed in favour of Bank. Auto Car Loans mentioned at serial Nos.5 & 6 were neither processed nor signed by the applicant. In other words his submission was that the applicant along with others has to account for only one Auto Car loan as mentioned at serial No,1 in the supplementary challan dated 19-9-2011. Learned counsel further submitted that applicant had acted bonafidely and in good faith in discharge of his duties and had acted strictly in accordance with the Bank's guidelines and policy for grant Auto Car Loan. He lastly submitted that the_ applicant was not the beneficiary of any Auto Car Loan. In support of his contention learned counsel for the applicant has placed reliance on the cases of The State through Advocate General, N.-W.F.P. v. Zubair and 4 others (PLD 1986 SC 173), Allah Dino v. The State (2006 SCJ 603), Asif All Zardari v. The State (1993 PCr.LJ 781) and Dr. Allah Nawaz A. Qazi v. The State through Chairman NAB (2008 SCM R 196).
5. Mr. Irshad Ali Kehar, learned D.A.G. Has opposed the grant of bail to the applicInt and has submitted that there is ample evidence with the prosecution which connects the applicant with the commission of offence. He further submitted that bank management is supporting the applicant/accused and he had already filed bail application before this Court, which was dismissed by the Division Bench therefore this second bail application is not maintainable. Learned D.A.G. In support of his contention has placed reliance on the cases of The State v. Zubair (2002 SCM R 177), and Abdul Ghaffar Jamali v. The State (1999 PCr.LJ 1482).
6. Mr. Z.U. Mujahid, learned counsel for the complainant has also opposed the grant of bail to the applicant and has submitted that the applicant is fully connected with the commission of offence and case of the prosecution is fully supported by P. Ws in their statements. He further submitted that earlier bail application of the applicant was already dismissed by the Division Bench of this Court therefore this second bail application is not maintainable and liable to be dismissed.
7. We have heard the learned counsel for the parties and have gone through the record so also the case-law cited at bar.
8. Now taking up the objection of the learned D.A.G. And learned counsel for the complainant to the maintainability of this bail application, it will be noticed that first bail application of the applicant was disposed of by the trial Court prior to submission of challan and thereafter Bail Application No,505 of 2011 was filed before this Court which was dismissed per order dated 28-4-2011. It will be further seen from the record that the first interim challan was submitted by. The F.I.A. On 23-4-2011 and second and third supplementary challans were submitted by the F.I.A. On 19-9-2011 and 25-10- 2011 respectively. On filing of second supplementary challan certain new facts came to light, accordingly the applicant applied for bail before the learned Trial court and after failure in getting the bail from the learned Trial Court present bail application has been filed. The honourable Supreme Court of Pakistan in the case of State v. Zubair and others reported in PLD 1986 SC 173, has laid down the parameter for deciding second or subsequent bail application to the same Court on fresh grounds. In the aforesaid judgment their lordship while dealing with the point in issue had observed as under:- "8. It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent bail application. We may also point out, with respect to the learned Judge, who dealt with the second bail application that the mere fact that the learned Judge who had rejected the first bail application of the respondents with the observation that as far as the remaining petitioners (the respondents herein) are concerned no case had been made out for their release on bail, does not mean that the application had not been disposed of on merits. It must be assumed that he had considered all the pleas or grounds raised by the applicant's counsel before him and that the same had not found favour with him. It may be pointed out, with great respect, that the notion that each contention raised before the Court in a bail application must be dealt with separately or repelled by recording elaborate reasoning, is totally misconceived. We are of the view that in the present, case the learned Judge who dealt with the second bail had, in fact, embarked on a review of the order of the learned Judge who had earlier dismissed the first bail application."
From the perusal of the above quoted extract from the judgment of honourable Supreme Court of Pakistan, it is manifestly clear that second or the subsequent bail application to the same Court shall lie only on a fresh ground which did not exist at the time when the first application was made.
Applying the above rule to the present case it will be noticed that second supplementary challan was not filed by the F.I.A. Before the trial Court when the earlier bail application was dismissed by this Court. After filing of second supplementary challan applicant filed bail application before the learned trial Court which was dismissed on 26-9-2011, thereafter present bail application has been filed. From the perusal of the above facts it is apparent that since second challan was not filed at the time or decision of earlier bail application by this Court and some new facts came to light through second supplementary challan which gave new grounds to applicant to seek bail on the basis of fresh grounds. In the circumstances, we hold that present bail application is maintainable for the reason that same is being pressed on the fresh grounds as per second supplementary challan which were not considered by the Trial Court while rejection bail application on 26-9-2011.
9. On merits of the case it will be noted that the Division Bench of this Court while disposing of the earlier bail application of the applicant had disposed of two bail applications one relating to main branch of Bank Al-Falah and other relating to P.E.C.H.S. Branch of Bank Al-Falah where the applicant was posted. The learned Division Bench in its order dated 28-4-2011 observed that on enquiry after lodging of F.I.R. Default in hundreds of cases amounting to more than Rs,202 million in P.E.C.H.S. Branch and Rs,57 million in main branch of Bank AI-Falah were unearthed, but the second supplementary challan has been submitted on 19-9-2011, which shows that there are only six Auto Car Loans default relating to P.E.C.H.S, branch which has nexus with the applicant. We are mindful of the fact that at the bail stage deeper appreciation of the, record cannot be gone into, but only a tentative assessm ent is to be made just to find out as to whether present applicant is connected with the commission of offence or not. Applying the above settled legal position to the case in hand if detail of Auto Car Loans mentioned in the second supplementary challan dated 19-9-2011 are perused it will be seen that maximum two Auto Car loans as mentioned at serial Nos.1 & 4 in the second supplementary challan dated 19-9-2011 were processed and signed by the applicant along with others. As pointed out earlier with regard to the Auto Car loan mentioned at serial No,4 of the challan a suit was filed by the Bank against the borrower for recovery of the money and a decree in favour of Bank has been passed in said suit by the Banking Court against such borrower/defaulter.
With regard to car mentioned at serial No,1 the applicant has jointly signed by other co-accused who either have been let of or have not sent up for trial as an accused or absconding.
10. In view of the above case of the applicant requires further probe into the matter entitling him for grant of bail. Accordingly, by our short order dated 3-1-2012 the applicant was admitted to bail on his furnishing solvent surety in the sum of Rs,2 million and P.R. Bond in the like amount to the satisfaction of the trial Court and these are the reasons for the same.
11. Needless to mention that any observation made in this order will not affect the pending trial before the learned Trial Court and the same may be conducted and decided strictly in accordance with law and the evidences available on the record.