' NISAR MUHAMMAD SHAIKH, J.---The applicant Muhammad Nawaz has approached this Court for grant of bail after his earlier bail application moved before the trial Court was dismissed vide order dated 27-4-2010 passed by learned Presiding Officer, Special Court (Offences in Banks), Karachi.
2. As per F.I.R. No,8 of 2010 registered on 25-3-2010 under sections 420, 468, 471, 109, P.P.C. On the written complaint dated 25-3-2010 of the District Manager, UFA, City Branch, I.I. Chundrigar Road, Karachi, a fraud was surfaced on 22-3-2010 when Customer Services Manager of Defence Housing Society Branch received an email dated 20-3-2010 from a customer/account holder namely Syed Asim Minhajuddin informing that his account was debited on 17-3-2010 and 19-3-2010 for Rs,879,700 and Rs,898,900 respectively, without his consent and knowledge. On reviewing the account of Syed Asim Minhajuddin it revealed that his account was debited 10 times online for total Rs,7,571,900 from 22-2-2010 to 19-3-2010. It is further alleged in the said complaint/F.I.R. That all the transactions were under Inter Branch Transaction System and all the funds were remitted to the account of accused Zafar Iqbal and his son Muhammad Nawaz (applicant) therefore, upon checking it transpired that all the remittances have been carried out by accused/applicant Muhammad Nawaz who is maintaining his account with UBL, Defence Garden Branch, Karachi. It is further alleged in the above complaint/F.I.R. That on 22-3-2010 the applicant/accused Muhammad Nawaz visited the branch once again for the online transaction to the account of his father Zafar Iqbal at UBL, Landhi Branch, but as soon as the Customer Services Manager came to know that another fraudulent inter branch transaction was about to take place, she informed to the counter staff but the accused Muhammad Nawaz ran away.
3. The applicant/accused Muhammad Nawaz who was arrested on 25-3-2010, was sent up with interim charge sheet No,14 of 2010 dated 8-4-2010 in which it was further alleged that from the facts gathered on record, it has prima facie been established that accused Muhammad Nawaz, with criminal and common intention of his father Zafar Iqbal as well as Syed Sajid Abbas Jafri, a bank staff and Malik Sajid alias Sajid Mazari, had managed fraudulent Uni-Remote Forms bearing fake signatures of Syed Asim Minhajuddin and through fraudulent manners, got Rs,7,571,900 transferred from his account to the account of accused Zafar Iqbal and also to his own account and on subsequent dates they withdrew such amounts through different cheques and usurped the same.
4. It is argued by Mr.Naimat Ali Randhawa, learned counsel for the applicant that the applicant has falsely been implicated in this case by the complainant in collusion with F.I.A. To save their skin as all the details of the account holders remain in safe custody of Operation Branch of the Bank and any outsider cannot get such information and since all transactions were made online through remittance forms without having any cheque from the customer/account holder and without any confirmation from him, and all such transactions were processed and passed by the Operation Department of the complainant's bank therefore, it was the bank staff who has misused the accounts of the applicant/accused Muhammad Nawaz and his father Zafar Iqbal to usurp the huge amount of the account holder Syed Asim. He further argued that the applicant is a labourer having no concern with Syed Asim or his bank account and since all the transactions were under Inter Branch Transaction System therefore the incident has not taken place in the manner as narrated but in fact the staff of the bank may have misappropriated and carried forged transactions therefore the case needs further enquiry. He also argued that the alleged offences are bailable except section 468, P.P.C. Which is also not covered by the prohibitory clause of section 497(1), Cr.P.C. Therefore, the applicant is also entitled for bail specially when his case is on better footing than the co-accused Syed Sajid Abbas Jafri who has already been granted bail by the trial Court on 15-4-2010. In support of his contentions, learned counsel for applicant also placed reliance on the cases reported as 2010 M LD 758, 2010 PCr.LJ 623, 2010 YLR 1902 and 2010 YLR 563.
5. On the other hand, Mr.Ashiq Raza, learned D.A.G. Appearing for the State, vehemently opposed the prayer of applicant contending that the case is still under investigation and the recovery of the amount in question is yet to be made and the remaining absconding accused Zafar Iqbal who is father of the present applicant is yet to be arrested and after getting the remaining necessary documents, the final challan will be submitted therefore the applicant is not entitled for the concession of bail in this case of heinous nature.
6. We have considered the above submissions and perused the relevant record which shows that allegations levelled against the applicant/accused Muhammad Nawaz in the very complaint/F.I.R.
For committing the offence of fraud, etc., are corroborated by documentary evidence as well as 161, Cr.P.C. Statements of the P. Ws. And accordingly, the applicant has caused substantial monetary loss to a account holder of the Bank and thus a prima facie case as alleged in the F.I.R., has been made out which connects the accused for commission of the alleged offence and there appears no exceptional circumstances to exercise discretion in favour of the applicant in the circumstances, there appear reasonable grounds to believe that the accused was guilty of the scheduled offence falling under the Ordinance, 1984 relating to the offences in respect of the Banks and the same cannot be equated with the cases under P.P.C. Moreover, the applicant accused had since, allegedly, played a pivotal role in commission of the alleged fraud etc. And he was also the beneficiary of the alleged transactions involving huge amount, therefore, his case was very distinguishable to the case of co-accused Syed Sajid Abbas Jafti and as such the principle of consistency was not attached in the matter of applicant.
7. The case-law as retied upon by learned counsel for the applicant is not relevant or applicable to the case of present applicant as in the case of Pargat Masih v. The State (2010 M LD 758) the petitioner was granted bail by a Single Bench of Lahore High Court as the alleged forged Agreement to Sell was under determination in a suit pending in the Civil Court and therefore it was held that till the decision by civil Court the case against the petitioner was open to further enquiry into his guilty. In another case of Raja Nadeem Ahmed v. Javed Iqbal (2010 PCr.LJ 623) a Single Bench of Peshawar High Court, admitted the petitioner on bail as the complainant from whose account the amount in question was withdrawn and credited to the account of petitioner, had totally exonerated him and in these circumstances his case was held to be one of further enquiry.
Whereas the facts of remaining two cases, as relied upon by learned counsel for the applicant, are altogether different to the facts of the case in hand and therefore, the case of the applicant was not found fit to extend him the concession of bail and, it is for these reasons that the above bail application of the applicant/accused Muhammad Nawaz was dismissed by this Court vide a short order dated 23-6-2010.
8. It was however observed that the applicant/accused, without active connivance of the bank staff/officers could hardly be successful in committing the alleged offence therefore, the Investigating Officer namely Zia Hassan Rizvi who was present in person, also submitted in this regard that no leniency would be given by him to the responsible bank officials in the final challan which is yet to be submitted before the trial Court.
9. Needless to say that the above observations, being tentative in nature, would not be taken by the trial Court so as to influence the merits of the case.