1. ' AFTAB AHMED GORAR, J.---By This common order we propose to dispose of abovesaid two bail applications as they arise out of the same F.I.R.
2. ' Brief facts of the prosecution case are that Kamran Hassan, Manager Summit Bank Dolmen City Branch Karachi, filed a complaint to the effect that Messrs Zardari Group (Pvt.) Limited was maintaining a Daily Product Account No,1-2-15-20620-714-103018 in the 'said branch of the bank.
3. The said account was opened on 16th August, 2011 with title "Messrs Zardari Group (Pvt.) Ltd." and was being operated by authorized signatory of the company. On 24-11-2011 the group informed that on examination of bank account statement they noted that Rs,100 million has been withdrawn unauthorizedly and fraudulently from their bank account on 10-10-2011 through Cheque No,21240 although the company had utilized only cheques from Serial Nos.21210 to 21215. It was further stated that on 10th October, 2011 Summit Bank I. I. Chundrigar Road Branch received Cheuqe No,21240 and on the same day it was received for clearing from Burj Bank, Main I. I. Chudrigar Road, Karachi and the beneficiary of the said cheque was Messrs Universal Construction, a customer of Burj Bank Ltd.
4. It was further narrated in the complaint that as per practice their main branch faxed the alleged cheque to concerned branch where account of Messrs Zardari Group (Pvt.) Ltd. Was being maintained but after due diligence their Dolmen City Branch confirmed the main branch through fax regarding clearance of cheque through fake signature over a stolen cheque thereby causing a loss of Rs,100 million to the account holder.
5. ' During the course of enquiry it transpired that co-accused Abu Mohammad Zahid fraudulently and dishonestly pulled out Cheque No,21240 from the Cheque Book of their custody Messrs Zardari Group (Pvt.) Ltd. And handed over the same to co-accused Mohammad Asim Arain who opened an account with Burj Bank, Main Branch, Karachi in the name of Messrs Universal Construction and thereafter withdrew the said amount through three different cheques soon after the opening of account and both of them embezzled/misappropriated the said amount with connivance of each other.
6. ' Learned counsel for the applicants argued that neither the names of the applicants transpire in the F.I.R. Nor any overt act has been attributed to any of the applicants. Both the applicants were arrested on 30-11-2011 at 2125 hours and recovery was effected on the same date at 1905 hours.
7. Accused Syed Mohammad Nawab Zaidi and Adeeb were let off by the F.I.A. Authorities and their names were excluded from the list of accused persons in the charge sheet. It was further contended that both the applicants are bankers and they could have easily conceal the money.
8. The major role was assigned to Mohammad Asim Arain who had opened the account in the Summit Bank, Main Branch with the fake name of Messrs Universal Construction Company and drew the said amount through three different cheques after clearance and confirmation from main branch of Messrs Burj Bank, I.I. Chundrigar Road, Karachi. Mohammad Yousuf Zaidi was working as Operational Manager in the Burj Bank, Kharadar Branch who after getting Call Back Confirmation (CBC) from the main branch, paid the cash of the cheques to one Nawaz. The learned counsel for the applicants further submitted that no independent witness has been cited by the F.I.A. During the recovery proceedings of search of the houses of the applicants. They relied upon the case reported in:--
(i) PLD 1997 SC 408, (ii) 1999 PCr.LJ 483, (iii) 1997 PCr.LJ 1340, (iv) PLJ 2003 Cr.C. (Lahore) 788, (v) PLD 1998 Lahore 35, (vi) 1973 PCr.LJ 205, (vii) 1999 MLD 1618, (viii) 1974 PCr.LJ 137 (Lahore), (ix) PLD 2004 Lahore 767, (x) 2008 PCr.LJ 1444, (xi) 1996 PCr.LJ (FSC) 181, (xii) 2005 SD 258(sic), (xiii) PLD 1994 (FSC)
9. 24, (xiv) 2003 YLR (Pesh) 163, (xv) 1992 MLD 2205 (Karachi), (xvi) 1999 PCr.LJ 1546 (Pesh.) and (xvii)
10. PLD 1976 Lahore 35 ' Mr. Asif All Mangi, Standing Counsel opposed the grant of bail on the ground that huge amount of Rs,45 Lacs has been recovered from each of the accused.
11. ' We have heard both the sides and perused the case papers.
12. ' The names of both the applicants do not transpire in the F.I.R. And no specific role has been assigned to them. There is clear violation A of section 103, Cr.P.C. In the case reported in 1997 SC 408 it has been held by the honourable. Supreme. Court that the requirement of section 103, Cr.P.C. That the two members of the public of the locality should be Mashirs to the recovery is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two members from the public, however if the statement of the Police Officer indicates that no efforts were made by him to secure two Mahirs from public, the recoveries would be doubtful. In the instant case Mashirnama of Arrest does not indicate that any such efforts were made by the I.O. The date and time shown in the Memo of Arrest is 30-11-2011 at 2125 hours at the office of Deputy Director F.I.A., Crime Circle, Saddar, Karachi and the Seizure Memo which seems to have been prepared on the same date viz. 30-11-2011 at 1905 hours at B House No,A-37, Block 20, F.B.
13. Area, Karachi which is occupied by accused Syed Azhar Abbas Rizvi, shows that at the time of recovery applicant Mohammad Umair was with the F.I.A. Party which creates doubt. The F.I.A.
14. Personnel searched the said house and recovery was effected, however very strangely at time of the recovery the applicant Syed Azhar Abbas Rizvi was not arrested. Such conduct of the F.I.A.
15. Creates doubt benefit whereof goes to the accused even at bail stage. Seizure Memo indicates that the recovered cash was not sealed at the spot.
16. ' In the circumstances, case against both the applicants requires further enquiry, as such they are admitted to bail subject to their furnishing solvent surety in the sum of Rs,5,00,000 (Rupees Five Lacs only) each and P.R. Bond in the like amount to the satisfaction of the trial Court.