ALI BAQAR NAJAFI, J.---This order shall dispose of both the above titled writ petitions as in both writ petitions, the petitioners have sought their release from the custody of NAB while invoking the constitutional jurisdiction of this court.
2. As per the prosecution case, the petitioners were arrested for commission of the offence of corruption and corrupt practices by cheating public at large cognizable under section 9(a) of National Accountability Ordinance, 1999 on the allegation that during the inquiry/investigation, it was revealed that Muhammad Fakhar Javed Khokhar (petitioner) during the period of 2013-14 was managing the business of Diamond Foam/Nayyar Carpet distribution business named as "Diamond FR Foam Center and Nayyer Carpet" at a rented business place situated at Shop No,B-2 Kabriya Town, Raiwind Road, Near Total Petrol Pump, Thokar Niaz Baig, Lahore. He was alleged to have started car committee/easy installment business and lured public at large on account of car booking business on easy/affordable installments, though, neither the car was delivered nor money was paid. He along with Rana Abdul Majeed (petitioner) vanished and absconded from the business. During investigation Muhammad Fakhar Javed Khokhar admitted that Rana Abdul Majeed was his manager and was working on his behalf as all receipts on the booking slips from Sr.
Nos,1200 to 1800 and onward were signed by Rana Abdul Majeed in his personal capacity without intimating him. In total 120 claimants have joined the investigation and total amount of Rs,2,64,92,355/- was claimed to have been cheated. The liability of Muhammad Fakhar Javed Khokhar was Rs,23,844,355/- and of Rana Abdul Majeed was Rs,26,48,000/-.
3. In the report and parawise comments submitted by the NAB authorities, it was stated that NAB Lahore received number of complaints against the petitioners that during the year 2013-14 they were running/managing business in the name and style M/s. Diamond FR Foam Center and Nayyer Carpet, Shop No,B-2 Kabriya Town, Raiwind Road, Near Total Petrol Pump, Thokar Niaz Baig, Lahore and under its garb, they received payments on the pretext of car booking on easy installments on the low markup to the public at large who offered them low interest rates and easy down payment but they absconded without making any such payment or delivering the promised vehicles. The inquiry dated 27.04.2016 was converted into investigation on 17.10.2016 and thereafter ACR No,98/2016 was filed on 20.12.2016 in the Accountability Court-IV Lahore where it is pending. It was further stated that the claimants were issued cheques by the petitioners as security against their advance payments and in the beginning to win the interest of peoples some of them were delivered cars but later their deliveries were delayed and all the cheques were dishonoured due to insufficient balance and subsequently they vanished. In total 120 claimants joined investigation proceedings and total amount of Rs,26,611,355/- was claimed but the amount of Rs,26,492,355/- was verified and the liability was fixed against Muhammad Fakhar Javed Khokhar as Rs,23,844,355/- and against Rana Abdul Majeed Rs,2,648,000/-. It was also claimed that they both issued receipts against the payments received by them.
4. Learned counsel for the petitioner (Muhammad Fakhar Javed Khokhar) contends that petitioner was arrested when he was already in the custody of the police in criminal cases already registered by them. Adds that the Chairman NAB has not authorized the inquiry, investigation and filing of reference by specifically delegating the powers. Further submits that during the trial only three PWs have deposed who have not implicated the petitioners and that the petitioner was arrested on 20.09.2016 and has passed sufficient time behind the bars.
5. Learned counsel for the petitioner (Rana Abdul Majeed) submits that after dismissal of his pre- arrest bail, he was arrested on 15.03.2017 and has also passed more than 10 months behind the bars and therefore prays for grant of bail through these constitutional petitions.
6. Learned Special Prosecutor appearing on behalf of NAB submits that under section 18(c) of the National Accountability Court Ordinance, 1999, has authorized the inquiry whereafter the investigation was upgraded and the reference was filed Arguments heard. Record perused.
7. As per the investigation report, part of the Reference No,98 of 2016, total 120 claimants have approached the NAB authorities in response to the advertisement published in the newspaper, the petitioner Muhammad Fakhar Javed Khokhar had four accounts in different banks i,e, Dubai Islamic Bank Raiwaind road Branch, Lahore, Meezan Bank, Thokar Niaz Baig Branch, Lahore, Askari Bank, Thokar Niaz Baig Branch, Lahore and UBL Thokar Niaz Baig Branch, Lahore showing no money in the said accounts. He was found to have owned three Honda motor bikes and one Suzuki Bolan Car.
The version of the petitioner Muhammad Fakhar Javed Khokhar recorded on 20.09.2016 that he had left the office and went to Saudi Arabia on 20.02.2016. He has taken the stand that his co-accused Rana Abdul Majeed being his manager who issued the receipts in his personal capacity without intimating him. The record reveals that various FIRs under sections 489-F, 406, 457, 380, 379, 356, P.P.C. have been registered against the petitioners and their challans are pending before the ordinary criminal courts.
8. Admittedly the liability of the petitioners is less than 100 million and as per clause 4(d) of the Standard Operating Procedures (SOPs) under the head of Operational Methodology Volume-I, 2015, the priority has been given to the cases of public at large where the number of defrauded persons are more than 50 persons and amount involved is not less than 100 million and that under clause 4(i) thereof an approval from the Chairman is required in case falling within the purview of the NAB of an amount lesser than 100 million.
9. The prosecution case is that the cheques against which various FIRs have been lodged were given as guarantee. The prosecution could not show before this court as to how many persons were delivered vehicles since the business was started in year 2013 and continued till 2016. It has also not been brought before this court through the record that it was not a contractual liability with different depositors/claimants for delivery of vehicles against advance payments and regular installments. These questions are pertinent with the background that many banks operating in Lahore were ready and available for the delivery of vehicles against car financing. NAB has also not been able to produce any record before this court showing the written understanding between the petitioners and the depositors regarding date of delivery against the money to be paid in advance.
In statements of PW-1 Hafiz Muhammad Abdullah, Muhammad Mustafa (PW-2) and Waheed-ur- Rehman (PW-3), it has been admitted by them that they have contractual liability for which they were issued the cheques for repayment as guarantee, which were dishonoured. To our understanding such a contractual liability may be enforced under the ordinary laws applicable to the situation.
11.Besides, the prosecution has not been able to show the accounts in which the said amount was statedly transferred and thereafter in some other accounts.
12.We are also conscious of the fact that the prosecution evidence is comprising of documents which may not be tampered and that reasonable time will be required by the trial court to conclude the trial.
13.For what has been stated above, we are of the considered view that the petitioners have made out a case for grant of bail as their case also falls within the ambit of further inquiry into their guilt.
In this view of the matter, these petitions are allowed as a result of which the petitioners are granted post arrest 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 Deputy Registrar (Judicial) of this court.