Petitioner (Shaukat Babar Virk) being arrayed as an accused in case FIR No.78/2024, dated 130.06.2024, for the offence under Section 406 PPC read with Section 5 & 23 of Foreign Exchange Regulation Act, 1947, registered with Police Station Federal Investigation Agency, Corporate Crime Circle, Lahore has sought his post-arrest bail, after refusal of the same relief from the Court of learned Additional Sessions Judge, Lahore, vide order dated 20.11.2024.
2. According to F.I.R. a complaint was registered with FIA CBC, against the CT No.324/2024, dated 15.05.2024, on the application of one Mst. Dina Khan daughter of Dr. Abdul Qadeer Khan against Shaukat Baber Virk and Sohail etc. alleging about the embezzlement of funds of A.Q. Khan Trust.
During the inquiry No.112/2024 dated 17.05.20245, it was transpired that said accused were found involved in preparing and using bogus/fake documents to withdraw the funds and using the same for their personal benefits. They withdrew sums of foreign currency and made transactions without any lawful authority and embezzled an amount equalant to 7942670/- PKR collectively.
3. Bail was sought mainly on the grounds that the lodgment of very FIR was illegal/unlawful, because complaint could have been made only by the State Bank of Pakistan under Sections 4 and 5 of the Foreign Exchange Regulation Act, 1947 ; no recovery from the petitioner was involved; petitioner has withdrawn the amounts from his personal accounts, which were sent by his kith and kins into his account, as such no offence was made out; weak and palpable circumstances of the case, when are taken into consideration accumulatively, were sufficient to make it a case that one of further inquiry; offences were not falling within embargo contained under Section 497 of Cr.P.C.
4. Learned Special Public Prosecutor appearing on behalf of FIA and learned counsel for complainant opposed present petition vehemently and rigorously on multiple ground. They added that petitioner was Secretary of A.Q. Khan Trust, but he misappropriated sums of the Trust committing forgery and frauds; so much so he also made an attempt to snatch over the possession of the A.Q. Trust Hospital forcibly, but due to timely intervention by the law enforcing authorities, failed to achieve his nefarious object; petitioner, being the main culprit, was not entitled to any relief.
5. Arguments heard. File perused.
6. Petitioner was under the allegation that he, in connivance with his co-accused misappropriated/embezzled an amount of Rs.7942670/- from the funds of A.Q. Khan Trust.
7. First of all I shall adhere to the objection raised by learned counsel for petitioner, because it was going to the very root of the case. He claimed that under Section 23(3) of the Foreign Exchange Regulation Act, 1947, cognizance of an offence can be taken by a Tribunal only on a complaint made in writing by a person authorized by the Federal Government, or the State Bank of Pakistan in this regard, as such the F.I.R. was liable to be quashed.
8. In the case in hand offence under Section 406 of PPC was main and controlling offence and was carrying the penalty of longest term of imprisonment amongst the offences applied upon F.I.R., whereas offences under Section 5 and 23 of Foreign Exchange Regulation Act, 1947 are subservient.
Offence under Section 406 of PPC is a cognizable offence, which does not require any such like condition precedent for the lodgment of prosecution, as such by virtue of said main and controlling offence, the above said condition precedent required for subservient offence shall become redundant and the F.I.R. shall be considered legal and valid for all the purposes. Said contention of the learned counsel for the petitioner has no legal force, hence I reject the same out rightly.
9. It was transpired from the record that a Trust styled "Abdul Qadeer Khan Trust" was created by a renowned Atomic scientist of Pakistan. Petitioner Shoukat Baber Virk was first General Secretary of the Trust. He contacted the foreign donors asking them that there was some problem in the bank accounts of Trust and instructed them to send the donations into his own personal bank account.
One Muhammad Usman Qudrat Elahi credited an amount of Rs.7942670/- into the personal bank account of petitioner as "home remittances". Learned counsel for complainant produced copy of FIR No.497/2024 dated 05.03.2024 for offences under Section 420, 468, 471 of PPC stood registered with Police Station Naseer-abad Lahore under the authorship of Rai Ansar Ali, Sub Registrar, Gulberg Town, Lahore with the allegations that petitioner (Shaukat Babar Virk) and Muhammad Sohail accused prepared a bogus/victitious resolution showing that authority of Dr. Abdul Qadeer Khan, Chairman Trust was revoked and a new trust body was constituted and thereafter Trust deed was got registered with the help of bogus papers. He presented another FIR No.698/2024 dated 15.03.2024 chalked out on the statement of one Muhammad Sajid Hussain, Advisor of Trust for offences under Sections 448 and 511 of PPC contending that Shoukat Babar Virk (petitioner) and 25-30 other 'Ghunda' elements made an attempt to snatch over the possession of Dr. A.Q. Khan Trust Hospital forcibly, but on the timely arrival of law enforcing authorities could not succeed in the accomplishment of their semester motive. Learned counsel referred another F.I.R. No.1753/2024 dated 10.07.2024 got registered by one Muhammad Sajid, an attorney of Dr. Dina Khan (daughter of Dr. Abdul Qadeer Khan) with the averments that Shaukat Babar Virk and Muhammad Sohail etc. (petitioner and co-accused) misappropriated vehicles of A.Q. Khan Trust.
10. Petitioner was prima-facie found to be connected with the offence. Material collected during the investigation including, particularly the documentary evidence render full corroboration and confirmation thereto.
11. I am fully conscious of the fact that the offences were not hit by prohibitory clause contained in Section 497 of Cr.P.C. According to the dictum laid down by August Supreme Court it is not a rule of universal application that bail should be allowed in each and every not falling within embargo of Section 497 of Cr.P.C. Each case has to be seen in the light of its own peculiar fact and circumstances and the Court not exercise the discretion in arbitrary, fanciful and perverse manner.
The Court may refuse to grant the bail, where exceptional circumstances exist. If any reference in this regard is required, that can be had from 'Shameel Ahmad v. The State' (2009 SCMR 174), 'Muhammad Siddique v. Imtiaz Begum and 02 others'(2002 SCMR 422) and 'Muhammad Nawaz v. The State and another' (2011 MLD 299).
12. In the case in hand, petitioner not only misappropriated/embezzled the amount of Trust, but he also misappropriated the vehicles of the Trust; got prepared another bogus trust deed on the basis of forged resolution and other forged documents and succeeded in getting the same registered with the Registrar concerned. Thereafter, he made grabbing attempts and used fraudulent athletics in order to snatch over the possession of hospital through the hooliganism. Conduct of an accused, whether previous or subsequent to the current offence, is always relevant under Article 21 of Qanun-e-Shahadat, 1984. It renders valuable help to the Courts to ascertain the attention of the accused with which he committed the offence and to determine as to whether he shall repeat the offence or not. Article 21 of Qanun-e-Shahadat, 1984 is being reproduced below for the facility of reference.
21. Motive, preparation and, previous or subsequent conduct: (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. (2) The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
13. In our country in fraud cases, financial scams and property crimes have higher rates of recidivism. Recidivism refers to repeat of criminal behavior. It can be measure in different ways.
Court may take into consideration different factors. Most important factor, in my humble view is conduct of accused previous or subsequent to the current offence.
14. Modus operandi adopted by petitioner reflected that he was main culprit and the master mind of whole of the series of the episodes of crime. Impulsive force of emotions and hunger lying in the mind of petitioner for the snatching of trust property, and other circumstances were suggestive of the fact that in case he is released on bail he shall make every effort to accomplish his nefarious design and for that purpose he shall repeat the offence, as such it is better to left him to be grilled in the jail. Above circumstances presented a dreadful picture and did not permit me to exercise my discretion in his favour despite of the fact that the offences were not hit by prohibited clause.
15. In the sequel to the discussion supra, present petition has no force, hence, dismissed.
16. Needless to mention that any observation made in the above order are tentative in nature and shall not influence the learned trial court in any manner.