Ghulam Mustafa Mughal, J.--Although the captioned appeals have been filed against the different judgments passed by the learned High Court dated 28.12.2019 & 08.04.2020, in Criminal Appeal Nos. 366 of 2019 & 43 of 2020, respectively , but the same can conveniently be disposed of through this single order , hence, are heard together and decided as such.
2. The precise facts of both the captioned appeals are that a report of parallel banking/fraud in Habib Bank Ltd, Sehnsa Branch Kotli, was submitted on behalf of Regional Operation Manager , Mr. Ali Adnan Qureshi against the accused-appellants on 09.11.2017, before the Ethesab Bureau. Upon filing the aforesaid written report, an inquiry against the appellants was started which was subsequently converted into investigation and the accused- appellants were arrested. After necessary investigation an interim reference under Sections 467/468/470/109, APC, 5(1)d,5(2), prevention of Corruption Act, 1947, Sections 9, 10/11 of the AJ&K Ehtesab Bureau Act, 2001 was filed before Ehtesab Court, Mirpur on 28.03.2019. Abdul Waheed Khan, accuse&appell ant, herein, moved a post arrest bail application before the learned Judg e Ehtesab Court on 02.05.2019 which was rejected vide order dated 12.06.2019. The other accused-appellant Khurram Shahzad also moved an application for grant of bail after arrest which was also rejected vide order dated 12.06.2019. Feeling dissatisfied from the judgment of Ehtesab Court, Abdul Waheed, accused-appellant, herein , filed an appeal before the Azad Jammu and. Kashmir High Court which was dismissed through the impugned judgment dated 28.12.2019. Similarly , Mr. Khurram Shahzad, accused- appellant filed a revision petition against the order of the Ehtesab Court before the High Court which also net the same fate and was dismissed through order dated. L8.2019. The accused-appellant Khurram Shahzad aggrieved from the judgment of the High Court dated 1.8.2019, filed an appeal before this Court on 9.2.2019 which was disposed of with the direction to the Ehtesab Court to proceed with the trial on the strength of interim challan and conclude the trial within a reasonable time and after recording the statements of the material witnesses if some fresh grounds become available to the accused-appellant or the trial Court fails to conclude the trial within the reasonable time, then the accused-appellant is at liberty to approach the. Court for grant of bail, vide judgment dated 11.12.2019. Thereafter , the accused-appellant, Khurram Shahzad has filed an application for grant of bail after arrest before the learned High Court on the ground that the Ehtesab Court is closed in pursuance of the circular issued by the Azad Jammu and Kashmir High Court dated 24.03.2020. The learned High Court vide impugned judgment/order dated 08.04.20 20, has returned the application with the observation that the appellant shall file the application before the Ehtesab Court upon its reopening.
3. Kh. Ansar Ahmed Advocate, the learned Advocate for Abdul Waheed Khan, appellant, herein, argued with vehemence that the order passed by the learned trial Court as well as the learned High Court passed in the bail application of Abdul Waheed, appellant, herein, is bad in the eye of law, erroneous and is liable to be set-aside. He argued that the whole proceedings cond ucted by the investigation agency are ultra vices of the Section 21(6) of Ehtesab Bureau, Act as the investigation has not been conducted within the stipulated period and no further extension has been obtained by the Ehtesab Bureau from the Government, therefore, all the proceedings including investigation and filing of interim reference has become barred by law, hence, are liable to be quashed and the appellant was liable to be released on bail. He further argued that not a single statement of the persons whose accounts have been tempered with or shown as guarantor for preparing the false loan cases, has been recorded by the Ehtesab Bureau, therefore, the appellant on the basis of available record cannot be held liable to have committed an offence with which they have been charged and the concession of bail cannot be denied to them. He argued that the law is not to be stretched in favour of the Ehtesab Bureau or the prosecution rather the balance has to be strucked between the accused and prosecution while deciding the bail application and even slightest doubt is to be resolved in favour of an accused because if any accused is set free, ultimately , then there would be no compensation of curtailment of his liberty . The learned advocate further argued that the learned Courts below have not considered the delay in lodging the report and has not extended the rule of consistency . He argued that the co- accused who have been released were nominated in the case for the similar role and without their involvement it cannot be said that the offence could have been committed solely by the appellants. They have been released by the Courts below but the rule of consistency has not been extended to the case of the appellant. The learned Advocate further argued that the Courts below have misread the banking expert report i.e. FIU and has also not taken into consideration the material contradictions between the FIU report and interim reference as both do not support each other on material points. He argued that the report raises a question mark on the genuineness of the prosecution story as it postulates that the necessary documents for finalizing the report have not been provided by the bank authorities. The learned Advocate further argued that the so-called recovery is doubtful because not a single penny has been recovered from the appellant rather the so-called recovered amount was paid for engagement of the advocate by the brother of appellant which has been shown as recovery . In support of his submission, he has placed the reliance on the cases reported as Anwarul Haq Qureshi vs. National Accountability Bureau and another [2008 SCMR 1135], Shoaib Warsi and another vs. Federation of Pakistan [PLD 2017 Sindh 243] and Tariq Riaz Mughal vs. State through Advocate General [2018 YLR 2567 ].
4. Mr. M. Sagheer Javed , the learned Advocate appearing for Khurram Shqhzad , appellant, herein, argued that in earlier judgment passed by this Court in appeal No. 412 of 2019 titled "Khurram Shahzad vs. Ehtesab Bureau" , decided on 11.12.2019, a specific direction was issued in Para No. 6 to the trial Court to proceed with the trial on the strength of the interim challan and conclude the trial within a reasonable time. It was further directed that if after recording the statements of the material witnesses some fresh grounds become available to the accused-appellant or the trial Court fails to conclude the trial within the reasonable time, then the accused-appellant is at liberty to approach the Court for grant of bail. He argued that as the trial has not been started as was directed by the Court and tried direction has, not been complied with and due to closing of the Court, an application was filed before the High Court for grant of bail but the same was not decided on merit, rather was returned through the impugned judgment dated 08.04.2020. The learned Advocate further argued that the so far as the bail of the appellant on merit is concerned, he owns and adopts' the arguments of Kh. Ansar Ahmed, the learned Advocate for Abdul Waheed. He submitted that due to the violation of the direction of the Court, the appellant is entitled to be released on bail. In support of his submission, he has placed the reliance on the case reported as Syed Mansoor Ali and others us. Chairman NAB and others [PLD 2016 Sindh 41 ].
5. Sardar Amjad Aslam, Chief Prosecutor Ehtesab Bureau on the other hand argued that totally a new case has been built up by the learned Advocates appearing for the appellants before this Court and all the factual and legal arguments raised before this Court have not ' been taken before the trial Court or the High Court, therefore, it is not advisable to decide these questions, as the decision may prejudice the case of either party at the trial. The learned Chief Prosecutor further argued that there is sufficient evidence collected by the prosecution which reasonably connects the appellants with the commission of the offence of committing parallel banking fraud during their posting at Sehnsa Branch Roth. He further argued that the argument of .the learned Advocates for the appellants has no substance that no evidence is recorded by the prosecution regarding the commission of parallel banking fraud. The learned C.P in this regard submitted the names of some witnesses along with their statements in the Court and also argued that the copies of the same have already been supplier to the accused and the rest shall be supplied while submitting the complete reference, whereas, the proceedings have already been started on the direction of the Court on an incomplete reference. He argued that in view of the collected evidence the accused are fully linked with the commission of the offence with which they have been charged and all the offences fall within the prohibitory clause of Section 497, Cr.P.C., as the appellants by their conduct have shattered the confidence of the customers as well as the society , therefore, they are not entitled to the concession of bail. The learned C.P further argued that so far as the non-observance of the direction of this Court is concerned, that has no force as after the direction an incomplete reference has been submitted and the proceedings could not have been started owing to direction of the High Court for closing of the Ehtesab Court due to Covid-19. The moment the Court reopens, the trial would be completed in reasonable time, therefore, no benefit can be given to Khurram Shahzad, appellant on this point.
6. We have heard the learned Advocates representing the parties and gone through the record of the case. The contention of Kh. Ansar Ahmed, the learned Advocate for the appellant that there is no case against the appellants, herein, and they are entitled to be released on bail, cannot be judged at this stage even for the purpose of bail. The law is settled that the deep appreciation of the evidence cannot be made while deciding the bail application. The Court has only to make the tentative assessment of the record collected by the investigation agency and form an opinion about the prima-facie involvement of an accused or otherwise, if after forming the opinion, the Court is of the view that the case of further inquiry under sub-section (2) of Section 497, Cr.P.C., is, made out, then an accused can be enlarged on bail pending the trial, otherwise, artificial reason for further inquiry cannot be dig out if an accused is fully linked with the commission of the offence with which he is charged. In the present case, the appellants, herein, have been accused of commission of parallel banking and committing fraud with the consumers and account holders which fact has been disowned by the guarantors. The statement made at bar by Kh. Ansar Ahmed, Advocate that not a single guarantor or witness has been examined by the prosecution or is mentioned in the interim reference, is negated by the learned Chief Prosecutor during the course of arguments and he has referred number of account holders and their statements who negated that they have not stood guarantor or given any guarantee for any loan against their accounts. Similarly , the question of time barred investigation has neither been raised before the trial Court nor before the High Court. This question has been raised for the first time before this Court, thus, we are unable to take up this matter for the first time. Even otherwise, the reference has been filed before the competent Court and the appellants, herein, are at liberty to raise all these points before the competent forum. The learned Chief Prosecutor has forcefully replied that the matter was referred to the Government before filing the reference and a reply is awaited. As the accused are involved in the fraud and have shaken the confidence of the account holders and at this stage on the basis of collected material, we are of the prima-facie view that it cannot be said that they are not linked with the commission of offence with which they have been charged, hence, they are not entitled to the concession of bail, however; after recording of some evidence they may file the bail application on fresh grounds if any .
7. So far as the contention of Kh. Ansar Ahmed, Advocate that the role of the appellants is not different than those who have been enlarged on bail by the Court is concerned, that is also devoid of any force. Their role is different and the case to their extent requires further inquiry . There is no similarity between the allegation levelled against the appellants and the released accused, therefore, the principle of rule of consistency cannot be attracted to the case of the appellants, herein. The contention of Mr. Sagheer Javed, the learned Advocate for the appellant that the direction of the Court has not been complied with, is devoid of any force in the circumstances of the case because after the direction the challan has been filed and the Ehtesab Court has been closed due to general instructions of the Azad Jammu and Kashmir High Court. For non-recording of the evidence, the Ehtesab Court cannot be blamed. The filing of application for bail before the High Court in these circumstances was not justified which has rightly been returned by the learned High Court for presentation to the proper Court. This order is not ever otherwise appealable and does not suf fer from legal infirmity .
The upshot of the above discussion is that finding no force, both the appeals are dismissed.