This order shall dispose of W.P. No, 3058 of 2015 titled Zahid Hafeez vs. The State, W.P. No, 5191 of 2015 titled "Humaira Rafique vs. Chairman, NAB authorities as in both the petitions the petitioners have sought their release on bail. Writ Petition No, 6211 of 2013 filed by Zahid Hafeez has become infructuous as the petitioner was arrested on 21.01.2015.
2. Brief facts as contained in the writ petition are that the petitioner is Chief Executive of Air Borne Travels, Travel Agency bearing Licence No, 4260 issued on 13.11.2009 under Travel Agents Act, 1976.
On account of his competitive rates and un-parallel services the travelling agency was able to make its presence felt in the travel business. Al-Baraka Bank was also of the petitioner's patrons who established its relationship with the travel agency in the year 2009 during which it purchased a number of tickets for domestic and International route in the name of various passengers. An amount of Rs, 1,503,010/- was outstanding against the said Al-Baraka Bank for the air tickets purchased by it but the said amount was not paid to the petitioner. Meanwhile, on 15.09.2012, a civil suit for declaration, injunction and rendition of accounts was filed by the petitioner against the Bank. During the pendency, the petitioner received a notice dated 28.01.2013 under Sections 19 & 27 of NAB, Ordinance, 1999 in respect of some inquiry in response to which the petitioner appeared before the NAB authorities and furnish the required details. On account of humiliating treatment the petitioner filed a W.P. No, 6211 of 2013 on 12.03.2013 seeking restraining order against the harassm ent in which Al-Baraka Bank also becomes a party. The petitioner was again served a notice on 09.09.2013. Meanwhile, the respondent-NAB authorities managed to record statement of the employee of Travel Agency namely, Hafiz Muhammad Bilal, who although denied making such statement under free will before the NAB authorities through separate affidavit or any statement under his free will. Thereafter, NAB authorities issued four notices to the petitioner freezing bank account of the petitioner. They sent another notice dated 04.10.2013 offering a voluntary return option. On 21.01.2015 both the petitioners were arrested and their physical remand was given to the NAB authorities and in view of the fact that civil suit was filed and the matter relates to rendition of account, the petitioner was sent to judicial lock up who seeks his release on bail through this constitutional petitions.
3. Learned counsel for the petitioner contends that Al-Baraka Bank has not filed a suit for recovery of amount against the petitioner and till pendency of the suit for declaration, injunction and rendition of account filed by the petitioner for ascertaining the actual liability, the petitioner be released. Submits that the petitioner in the operating with the NAB authorities by presents the entire documents which shows that under instructions the relatives of the high-ups of the bank were issued air ticket. Contends that the petitioner is not the beneficiary of any illegal transaction and during the remand, only Rs, 7,00,000/- was recovered from the petitioner. Places reliance on Baig Muhammad us. Chairman, National Accountability Bureau and others 12002 MLD 703], Muhammad Saeed Mehdi us. The State (PLD 2002 Lahore 124) and The State and others u. M. Idrees Ghauri and others 12008 SCMR 11181.
4. Conversely, learned counsel for the Bank contends that Zahid Hafeez being the proprietor of Air Borne Travel Agency connived with Humaira Rafique, who prepared the fake travel invoices and scanned the signatures of the competent, authority on the fake approval sheets, forwarded it to the Finance Department of the Bank and by misusing her official position she prepared pay orders in the name of Air Borne Travel Agency and credited in the Bank account of Zahid Hafeez.
Meanwhile, Hafiz Muhammad Bilal became approver and, therefore, pardoned then 20.01.2015 by the D.G.NAB whose statement was recorded before the Magistrate and according to him he prepared the fake invoices on the instructions of Humaira Rafique. Further contends that Humaira Rafique prepared 36 pay orders amounting to Rs, 12.676 million in the name of Air Borne Travel Agency. According to the NAB, claim of the petitioner of having issued 146 air ticket amounting to Rs, 8 millions to the official of Al-Baraka Bank and their relatives was not found correct as only 55 air ticket amounting to Rs, 2.7 millions approximately were issued to the official of Al-Baraka Bank but most of them were never presented before the Bank and in fact 37 air tickets amounting to Rs, 2.12 million approximately were issued in favour of official of Al-Baraka Bank and their relatives in the personal capacity but the official of Al-Baraka Bank who have already paid the amount in their personal capacity either to Humaira Rafique or to Zahid Hafeez and that the rest of the air ticket amounting to Rs, 3.285 million did not pertain to Al-Baraka Bank. In this way, in the year 2012 Zahid Hafeez received an amount of Rs, 12.676 million against the travel expenses of Rs, 2.7 million who was paid Rs, 9.9 million in excess.
5. Arguments heard. File perused.
6. The official of Al-Baraka Bank filed a complaint with the NAB authorities for legal proceedings under the NAB Ordinance, 1999 against Humaira Rafique (Ex-official of Al-Baraka Bank), Zahid Hafeez, (a proprietor of Air Borne Travel Agency) and Hafiz Muhammad Bilal (Accountant) relating to bank fraud in Al-Baraka Bank amounting to Rs, 12.00 million. According to the complaint, in the year 2012, Zahid Hafeez in connivance with Humaira Rafique prepared 36 fake invoices amounting to Rs, 12.676 millions mentioning incorrect and bogus air ticket numbers, passengers name, destination fare which was duly signed by Hafiz Muhammad Bilal (Accountant) on the instruction of Zahid Hafeez and sent to Humaira Rafique who scanned the signature of the competent authority namely, (Ahmad Shuja Kidwai, Khawajas Maaz Khairuddin & Shafqat Ahmed) on the approval sheet. Thereafter, she forwarded it to the Finance Department of the bank and then prepared pay orders in the name of Air Borne Travels. During investigation, Hafiz Muhammad Bilal (Accountant) was made approver who recorded his statement against the petitioner to the extent that all what he did was under the instruction of Zahid Hafeez.
7. According to NAB authorities, out of the claimed 146 air ticket of Rs, 8.00 millions issued to the official and the relatives of Al-Baraka Bank by Zahid Hafeez only 55 air tickets amounting to Rs, 2.7 millions were scrutinized and most of them were never presented before the Bank. The amount of other 37 air tickets equal to Rs, 2.12 million was already paid in the account either to Humaira Rafique or Zahid Hafeez, therefore, had no dispute. However, rest of the air tickets amounting to Rs, 3.285 million approximately do not pertain to Al-Baraka Bank and therefore, the complainant cannot have any claim against the same. According to calculation by NAB authorities Zahid Hafeez received Rs, 12.676 million against their travel of Rs, 2.7 millions and thereby caused loss of 9.9 millions to the bank.
8. Significantly, such a calculation without verification by the professional auditors either by the bank or otherwise cannot be totally relied on. Moreover, the exact liability of the petitioner on the basis of minute scrutiny of air ticket issued and the payment made has not A been properly made by NAB authorities. Even if it was, the same can be adjudicated upon latter. So far no reference was filed against the petitioner. The question like why the payments were delayed, who consumed the air tickets, how and in which circumstances payments were stopped and who authorized Humaira Rafique, petitioner to lease such amount in view of the fact that she was working under the nose of high-ups of the bank, required further investigation and collection of evidence.
9. During investigation, the alleged amount of Rs, 9.9 millions were not traced out either in account of travel agency or personal account of the petitioner raising question as to whether the petitioners jointly or severely become beneficiaries of the said transaction.
10. In our considered view, allegation against the petitioners relates to the settlement of account, therefore, unless exact liabilities of the petitioners are calculated, they cannot be held criminally responsible for their acts. We place our reliance on The State and others vs. M. Idrees Ghauri and others [2008 SCMR 11181, the relevant extract is re-produced below: "The prosecution of a person without distinction of criminal and civil liability in a transaction, is misuse of process of law and similarly stretching the law in favour of prosecution is unjust and unfair, therefore, the Courts without ascertaining the true character of the transaction and drawing the distinction in the civil and criminal liability, must not proceed to raise a presumption of guilt in terms of Section 14(d) of the NAB Ordinance."
In our humble view, the petitioners have made out a case for bail for which we place reliance on Makhdoom Javed Hashmi vs. The State and 2 others [2003 P.Cr.LJ 266] wherein it has been held, as under: "The concept of pre-trial release of the accused was developed on three presumptions; firstly the accused was presumed to be innocent till he was found guilty; secondly the accused should have a right to prepare his defence and prove his innocence before the Court of trial; and thirdly the accused should not be punished before the finding of his conviction was rendered by the Court."
11. In this view of the matter, the Writ Petition Bearing No, 3058 of 2015 titled Zahid Hafeez vs. The State, W.P. No, 5191 of 2015 titled "Humaira Rafique vs. Chairman, NAB authorities are allowed and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs, 5,00,000/- each with two sureties each in the like amount to the satisfaction of the trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.