' We intend to dispose of Criminal Miscellaneous No,6541-B of 2013 filed by Kh. Masood ul Hassan, petitioner and Criminal Miscellaneous No, 6543-B of 2013 filed by Zaraq Bari Malik, petitioner as both these petitions relate to the same F.I.R. No,31 dated 17-4-2013 registered at Police Station FIA, CBC, Lahore under sections 409/420/468/471, P.P.C. Read with section 5 of the Prevention of Corruption Act (No,II), 1947.
2. F.I.R. Was registered on the statement of Raheel Bari Malik statedly brother of Zaraq Bari Malik, petitioner-accused. In the F.I.R. It was stated that petitioner Zaraq Bari Malik was Chief Executive of Bari Studio Private Limited, Lahore and as such he opened account in the name of Bari Studio in Allied Bank Limited having its branch at Canal View Housing Society, Lahore and started operating the same; that he mentioned his personal address in the account without any Authority/Resolution of the Board of Directors of the Company; that ultimately in the year 2010 he was removed from the post of Chief Executive and the complainant took over the charge and later on it transpired that the account in the name of Bari Studio Private Limited, Lahore was fraudulently opened and operated as such huge amount was misappropriated. It is stated that petitioner Kh. Masood ul Hassan was Manager of ABL Branch, Canal View Housing Society, Lahore where the said account was opened. It was further alleged that in the year 2006 address of the company was fraudulently changed, with that of Gulgasht Colony, Multan. On this application moved by complainant Raheel Bari Malik an enquiry was conducted by FIA Authorities and ultimately the instant case was registered. Apprehending arrest present petitioners approached this Court through two different petitions as mentioned above for the grant of pre-arrest bail.
3. Learned counsel for the petitioner Kh. Masood ul Hassan stated that the petitioner was Manager of the ABL who after fulfilling all legal formalities opened the account in the name of Zaraq Bari Malik the then Chief Executive of Bari Studio Private Limited. He produced a letter indicating that he was duly authorized by the Board of Directors to open and operate the account. It is stated that the account was introduced by Mishah Enterprises, I.D. Copy of petitioner Zaraq Bari Malik was also placed on record of the bank which indicate the same address as mentioned in the account opening form of ABL. It is stated that in the year 2006 the petitioner was not the manager of the concerned branch of the bank and as such has nothing to do with the matter regarding change of address. Learned counsel states that there is no allegation against the petitioner regarding misappropriation, forgery or any crime against the complainant. Learned counsel states that he has only been implicated because he was the Manager of the Bank at the relevant time.
4. Learned counsel for the petitioner Zaraq Bari Malik states that petitioner is the brother of complainant Raheel Bari Malik and the case has falsely been registered because of family dispute.
It is stated that after the said account was opened whole transactions of the company were conducted from the same account and there was no other account operated by the Bari Studios. It is stated that complainant and even other Directors of the company had been receiving payments through cheques issued from the same account and it was well in their knowledge. Further states that petitioner is not the beneficiary of any transaction; that certain amounts were withdrawn from the same account; that both the brothers fell out with each other in May, 2010 and the petitioner was illegally ousted from the seat of Chief Executive and now Winding Up Petition i.e, C.O., No,31 of 2010 is pending before this Court; that after 2010 when the petitioner was turned out the complainant took over the charge of Chief Executive of the Bari Studio Private Limited. It is stated that there is not a single evidence available on record to indicate that the petitioner has misappropriated any amount or forged any document. Learned counsel states that in the circumstances, the case of the petitioner remains that of further inquiry.
5. On the other hand, learned Law Officer assisted by learned counsel for the complainant states that petitioner Kh. Masood ul Hassan being manager of ABL without fulfilling requisite formalities or instructions from the authorities open the account in the name of Zaraq Bari Malik. There is no document available on record indicating any such authority/resolution on behalf of the Board of Directors of the company whereby the petitioner Zaraq Bari Malik was authorized to open and operate the account on behalf of the company. It is stated that Zaraq Bari Malik subsequently in connivance with Kh. Masood ul Hassan who was Manager at the relevant time changed the address of the company with that of personal address of Zaraq Bari Malik, petitioner. It is stated that at least four transactions have been traced out according to which at one point of time Rs,4,00,000, then Rs,5,00,000 were withdrawn and later on Rs,10,00,000 were deposited in the said account through foreign remittance but the same had not been accounted for by the petitioner Zaraq Bari Malik. It shows that the petitioner Zaraq Bari Malik has misappropriated the funds lying in the said account in connivance with petitioner Kh. Masood ul Hassan who was Manager of the said branch of ABL, so in the circumstances, involvement of both the petitioners is evident, therefore, they are not entitled to the grant of pre-arrest bail.
5(sic.) We have heard the learned counsel for the parties and perused the record.
6. Petitioner Kh. Masood ul Hassan was Manager of concerned branch of ABL and apparently he fulfilled the legal requirements. There is a letter on record indicating Zaraq Bari Malik being Chief Executive is authorized to open and operate the account in the name of company and the same was made part of the account opening form. Copy of I.D. Of petitioner Zaraq Bari Malik placed on record indicates the address which was the same as mentioned in the account opening form.
Record further reveals that in the year 2006 petitioner Kh. Masood ul Hassan was not the Manager of concerned Branch of ABL as such his involvement in the matter of change in address of the company is not made out. The extent to which he is liable can only be determined after recording of evidence at trial stage. No useful purpose will be served by sending him behind the bars.
7. As far as petitioner Zaraq Bari Malik is concerned he is brother of the complainant and admittedly there is a civil litigation pending between the parties. The account in question remained in operation for eight years and during this period the complainant even other Directors of the Bari Studio withdrew their payments from the same account and during this period no other account was open and operated by the petitioner. So in the circumstances, involvement of the petitioner in this matter remains that of further inquiry. As far as the criminal liability is concerned at the most even according to the prosecution the allegation against the petitioner is that he misappropriated the funds which offence comes within the purview of section 403, P.P.C. And the same is bailable.
Similarly section 420, P.P.C. Is also bailable. As far as other provisions of law are concerned the same can only be ascertained after recording of evidence at trial stage. Admittedly there is a civil litigation pending between the parties so in the circumstances, mala fide of the complainant to falsely implicate the petitioner cannot be ruled out.
7. So, keeping in view the above circumstances, both these petitions are allowed and the ad interim pre-arrest bail already granted by this Court to the petitioners is confirmed subject to their furnishing fresh bail bonds in the sum of Rs,2,00,000 each with two sureties each in the like amount to the satisfaction of the trial Court.