O R D E R NAIMATULLAH PHULPOTO, J.--- Through instant constitution petition, petitioners Shabbir Ismail and Farooq Ismail seek bail in Reference No.33/2015, filed by Director General, NAB Sindh, Karachi before learned Administrative Judge, Accountability Court Sindh at Karachi.
2. Brief facts leading to the filing of the reference are that Muhammad Ali, Chairman, Securities & Exchange Commission of Pakistan filed complaint dated 20.02.2013 against the petitioners to the Chairman, National Accountability Bureau, Islamabad for investigation of the fraud, embezzlement, corrupt practices and cheating the public at large by the sponsors, directors and management of M/s. Ismail Abdul Shakoor Securities (Pvt.) Limited. Inquiry was initiated, statements of PWs, namely, Ms. Kishore Kumar, Muhammad Afzal, Shahid Anwar, Ghani Akbar, Syed Imtiaz Ali, Nizamuddin, Irshad Ali S. Kassim, Ibrahim Usman, Hotchand, Mrs. Kashila, Roshan Ali Arain, Jaffar Ali, Muhammad Sharif Gill, Muhammad Tanveer Alam, Khurram and others were recorded under section 161, Cr.PC during investigation. Petitioners were arrested and interrogated. Relevant record was collected against petitioners by the investigation officer, NAB, Karachi. Thereafter, with the approval of the Chairman, NAB. Above reference was filed against the petitioners before learned Administrative Judge, Accountability Courts, Sindh at Karachi. In the reference, allegations are mentioned in paras Nos.5 to 10, which are reproduced as under:- "5. That investigation revealed that accused No.1 Shabbir Ismail and accused No.2 Farooq Ismail as Sponsors/Directors of Ismail Abdul Shakoor Securities illegally and without the consent/authority moved/transferred shares of clients of M/s. Ismail Abdul Shakoor Securities (Pvt.) Ltd. and pledged them with the Banks in order to obtain financing facility. They also pledged shares with KSE for exposure margins which were used for their own benefit and also for selected few including major debtors. Subsequently, the company defaulted in the repayment of bank loans.
6. That the investigation revealed that to recover the defaulted amount, such illegally transferred/pledged shares were sold by the Banks and KSE by exercising their respective pledge call option upon failure of the Brokerage House to settle the outstanding dues.
7. That the investigation revealed that the verification of claims of affectees were conducted by KSE with the help of a reputed chartered accountant firm for maintaining fairness and avoiding any discrimination, the total claims approved turned out to be 87 with a value of Rs.348.5 million.
8. That the investigation revealed that the maximum allowable contribution was made from the KSE Investor Protection Fund to the tune of Rs.75 million and the amount was disbursed amongst the approved claimants on pro rata basis. After which an amount of Rs.273.5 million of 40 claimants is still outstanding on the part of M/s. Ismail Abdul Shakoor Securities (Pvt.) Ltd.
9. That the investigation revealed that Mr. Ismail Abdul Shakoor, CEO of M/s. Ismail Abdul Shakoor Securities (Pvt.) Ltd. over 75 years of age was not involved in the activities of the business.
Furthermore, Mrs. Farzana and Furquan Hanif Directors of the same company were not involved in the commission of crime as they were not the authorized signatories.
10. That in view of the above it has been established that accused No.1 and 2, the Directors of M/s. Ismail Abdul Shakoor Securities (Pvt.) Ltd. embezzled an amount of Rs.348.5 million out of which Rs.273.5 million is still outstanding. Hence they have committed the offence of Corruption and Corrupt Practices, as envisaged in section 9(a)(ix) and (xi) of the National Accountability Ordinance 1999 punishable under section 10 of the Ordinance."
3. Learned advocate for petitioners mainly argued that there was no material to justify the filing of the reference against petitioners. It is also argued that shares of the clients of M/s. Ismail Abdul Shakoor Securities (Pvt.) Ltd. were pledged by the petitioners with the consent of the clients and nothing has been gained by the petitioners. Learned counsel for the petitioners further argued that complaint made by SECP to the NAB was delayed for about 4 years. Petitioner No.1 is chronic cardiac patient. Investigation has already been completed, petitioner are no more required for investigation. It is argued that petitioners have been falsely involved in this case by NAB. Lastly it is argued that clients of petitioners gave them mandate to pledge their shares. In support of his contentions, he relied upon the cases reported as Makhdoom JAVED HASHMI versus THE STATE and 2 others (2003 PCr.LJ 266), ANWER SAIFULLAH KHAN v. THE STATE and 3 others (2001 SCMR 1040) and MUHAMMAD ZAFAR MANIAR vs. SHAHZAD AHMED and another (2011 MLD 602) and NASEEM ABDUL SATTAR and 6 others versus FEDERATION OF PAKISTAN and 4 others (PLD 2013 Sindh 357).
4. Mr. Noor Muhammad Dayo, Special Prosecutor NAB argued that petitioners have been involved by more than 16 witnesses in their 161, Cr.PC statements. Mr. Dayo specifically referred statement of PW Muhammad Tanveer Alam in which it is stated that petitioners have transferred an amount of Rs.337,040,593.49 in their names so also in the names of Asif and others by committing fraud. It is further argued that Asif and others were the fictitious persons. Mr. Dayo referred to the documentary evidence collected against the petitioners and submitted that there is sufficient material/evidence against the petitioners to connect them in the commission of offence. In support of his contentions, he relied upon the cases Mrs. RIAZ QAYYUM versus THE STATE and another (2004 SCMR 1889), ABDULLAH DURRANI and others versus THE STATE (2004 SCMR 1200).
5. We have carefully heard the learned counsel for the parties and perused the relevant record.
6. It appears that Muhammad Ali, Chairman, SECP made complaint dated 20.02.2014 to the Chairman, NAB Headquarters, Islamabad for investigation of the fraud, embezzlement, corrupt practices and cheating the public at large by the sponsors, directors and management of M/s. Ismail Abdul Shakoor Securities (Pvt.) Limited. Investigation officer, FCIW, NAB Karachi recorded 161 Cr.PC statements of PWs, namely, Ms. Kishore Kumar, Muhammad Afzal, Shahid Anwar, Ghani Akbar, Syed Imtiaz Ali, Nizamuddin, Irshad Ali S. Kassim, Ibrahim Usman, Hotchand, Mrs. Kashila, Roshan Ali Arain, Jaffar Ali, Muhammad Sharif Gill, Muhammad Tanveer Alam, Khurram and others, in which they have stated that fraud and breach of trust has been committed by the management of M/s. Ismail Abdul Shakoor Securities (Pvt.) Limited. PW Muhammad Tanveer Alam, Joint Director, SECP, in his 161, Cr.PC statement has specifically mentioned that the record obtained from KSE revealed that total amount receivable from 92 clients as on November 12, 2008 was Rs.420.207 million, including significant amounts from the following: {{TABLE}} Sr. No. Name of Claimants Amount in Pak Rupees Percentage of Total Receivable 1 Asif 94,471,420.64 22.48% 2 Rizwana Bano 84,082,963.45 20.00% 3 Khurram 45,800,411.20 10.89% 4 Yousuf Saleem 21,033,637.97 05.00% 5 Ismail Abdul Shakoor Securities 18,593,561.65 04.42% 6 Dawood Khan 18,048,235.60 04.29% 7 Yasmeen Bano 17,545,492.37 04.17% 8 Abdul Ghaffar (Badla Account) 14,937,776.90 03.55% 9 Adeel Hussain 11,558,675.93 02.75% 10 Farooq Ismail & Company 10,968,417.78 02.61% Total:- 337,040,593.49 80.16% {{TABLE}}
7. It appears that an amount of Rs.18,593,561.65 was transferred in the name of the petitioners and remaining amount was shown in the name of Asif and others. According to the IO, who is present in the Court, Asif and others are fictitious persons and fraud has been committed by the petitioners with public at large. As regards to the contentions of learned counsel for the petitioners that shares were pledged with the consent of the affected persons but this fact has been denied by the PWs in their 161, Cr.PC statements. Apparently there is sufficient material against petitioners that they transferred shares of clients without consent and pledged shares with Bank and embezzled huge amount. Deeper appreciation of evidence is not permissible at bail stage as held by Honourable Supreme Court in the case of Mrs. RIAZ QAYYUM versus THE STATE and another (2004 SCMR 1889).
The relevant portion is reproduced as under:- "It is settled principle of law that an elaborate sifting of evidence cannot be made at the time of deciding bail application but only tentative assessment of the same is to be made. Thus, prima facie, there appears to be a reasonable ground disentitling the petitioner's husband, namely, Khaliffa Abdul Qayyum, to the concession of bail."
8. Thus, prima facie, there appears to be reasonable ground to connect the petitioners in the commission of offence, as such they are disentitled to the concession of bail. Accordingly, instant constitution petition being devoid of force is dismissed. However, trial Court is directed to proceed with the case expeditiously. Trial Court shall send progress report of each and every date of hearing to this Court through Registrar of this Court.
9. Needless, to mention here that the observations made hereinabove are tentative in nature and would not influence trial Court while deciding the case of the petitioners/accused on merits.
Constitution petition stands disposed of.