1. Sardar Abdul Hameed Khan, J.--This is an application for post arrest bail under Sections 406, 408, 409, 420, 468, 469 & 471, APC. In the first round of litigation, the request of the bail was rejected by all the Courts even by the Honourable Supreme Court by its order dated 16.11.2012, wherein it was directed that the Banking Court (trial Court) will conclude the trial within a period of 4 months positively. After that the application for bail was filed before Banks (Offences) Special Court of AJK on 08.03.2013. However, on 15.03.2013, elevation of the learned Judge as Judge of the High Court, application was pending in the said Court and now, this application has been filed on 29.03.2013, stating therein that the appointment of Judge Banking Court is not in sight in near future and the High Court has concurrent jurisdiction to decide the application, hence this application.
2. The learned counsel Raja Sadaqat Hussain Advocate has argued at length and explained that after the order of rejection of bail by the apex Court on 16.11.2012, the complainant and one important witness of recovery have been produced, whose statement have been recorded by the Court and in the light of fresh grounds and the doubts arose in the case of prosecution, the applicant is entitled to concession of bail in the above said offences. It is further argued that in the case, 36 total prosecution witnesses have to be produced and 34 remaining witnesses will take long time to conclude. It is argued that the complainant Noor Khan in his statement has admitted the innocence of accused persons and keeping in view the statement of Noor Khan and Mr. Jamil recovery witnesses, it may very easily be concluded that a reasonable doubt has arisen in the prosecution case and the benefit of doubt, even at bail stage has to be extended in favour of accused. He has argued that the direction of the Supreme Court has not been ad-hered to by the trial Court, hence the applicant merits release on bail.
3. On the other hand, Kh. Ansar Ahmed Advocate representing the complainant (Askri Bank) has argued that Section 10 of the Bank (Offences) Special Court Ordinance, 1984 ousted the jurisdiction of the High Court and under Section 43 of the said Ordinance, the Banking Court is in existence. He has relied upon 1991 SCM R 599 and argued that the applicant is involved in a case of embezzlement of billion of rupees in a Bank fraud and offences, in which the accused is involved comes within the prohibitory clause of Section 497 of Cr.P.C. It is vehemently argued by the learned counsel that the apex Court of the State has withdrawn the concession of bail given to the accused person and passed the order that "the interim bail granted to the accused stands recalled" and accused/appellant was directed to be taken into custody and lodged in the jail till the conclusion of the case, hence, the application is liable to rejection.
4. In rebuttal, the learned counsel for applicant argued that under the rule of consistency, the applicant merits concession of bail as the other accused have been released on bail.
5. We have heard the learned counsel for the parties and gone through the record.
6. The allegation levelled against the applicant is that he mis-appropriated the amount of account holders alongwith some other accused persons and embezzled the heavy amounts and issued the deposit slip with his signatures alongwith co-accused. The matter was thoroughly investigated.
7. During the course of investigation, the statements of different persons were recorded under Section 161, Cr.P.C. The signatures of the accused were also obtained to substantiate the version of the prosecution, which were sent to Hand writing expert. The signatures affixed on the deposit slip are of the accused/applicant according to the report of the said expert. It is also on the record that record of the transaction made in the Bank account of brother of Mudasar Hayyat applicant in which a huge amount was deposited who is still absconding and the prima facie connection of the offences of embezzlement is established on the record. We are not inclined to go in depth of the case, while dealing with the bail matter, thus, we feel it proper to decide this application in the light of the order of Supreme Court of AJK dated 16.11.2012 instead of discussing the detailed facts and merits of the bail application. The relevant portion of the above said judgment is as under:-- 15."After hearing the arguments of the learned counsel for the parties and going through the precedents referred to above, we are of the view that there is sufficient material available on the record on the basis of which, the Court can form the opinion that the accused are prima facie connected with the offence under which they have been charged. However, as we have already observed in a number of cases, some of them have been referred to above, at the bail stage neither the deeper appreciation of evidence is required nor the Court has to express any opinion whether the commission of offence is proved or not because the question of proof or disproof falls within the domain of the trial Court to be decided after the trial, therefore, we leave this question to be decided by the trial Court.
8. 16.Resultantly, both these appeals are dismissed. The interim ball granted by this Court to the accused-appellants is hereby recalled. The accused-appellants are directed to be taken into custody and lodged in the jail.
9. Before parting with the case, we would like to direct the trial Court to conclude the trial within a period of four months positively, without influenced by any observation made by this Court and decide the case according to its own merits after taking necessary steps to procure the attendance of the witnesses."
10. It is evident from the above quoted paras of the order of apex Court that the applicant is not entitled to concession of bail, rather his trial is to be concluded in shortest possible time. All the points agitated by the learned counsel for the applicant need dapper appreciation of evidence and merits of the case, which is not permissible under law at bail stage. Therefore, the instant application for bail is hereby rejected.