1. ' Through this Criminal Miscellaneous petition, bail after arrest, is sought for the petitioner in case F.I.R. No,2 of 1997, dated 9-4-1997 registered at Police Station No,7 Assets Branch, F.I.A., Rawalpindi under section 409/ 468/471/477-A/109, P.P.C. Read with section 5(2)47, P.C.A.
2. The facts as disclosed in the F.I.R. Are that Muhammad Mohsin Khan, Director-General Audit, Defence Services made a complaint to Director-General F .1. A. Vide his D.O. Letter No .3170/A- Admn.Cor/16/95-96/KW, dated 10-11996 regarding the suspected embezzlement of over Rs,1 billion of Public Fund during the period of 1991-95 in the office of D.E. (Army.) East and G.E. (Army) West, Rawalpindi. It was alleged in the complaint that (i) the above MES formations had spent about 20 million rupees on local purchase of stores through quotations from different suppliers in June, 1994.
2. On a reference made by Audit, certain firms have denied receipt of these payments on the plea that they had not supplied any stores to the above formations. Similarly a number of firms who had received payments from these formations were contacted by audit for confirmation of any supply of stores or receipt of payments against these supplies. The correspondence made with them through registered Postal Service was, however, received back with the remarks of their non- availability at their postal addresses; and (ii) Similarly an amount of Rs,5.93 million was shown paid to such firms during the month of June, 1994. These two instances provided sufficient evidence to Audit to suspect the bona fides of the disbursements made by these formations to the suppliers concerned. Number of firms were either not actually existing or fake documents in the name of existing firms were prepared to receive payments from the MES. The complaint made by Director- General Audit to Director-General F.I.A. Further said that another complaint in the meanwhile from one Muhammad Ayub Contractor was received containing allegation about misappropriation of more than 3 billion by the officer/officials of MES Rawalpindi during 1991-95 namely Messrs Zulfiqar former S.D.O., Central Stock (Stores) Rawalpindi and Zakim Khan Mahsood, XEN, G.E. (West)
3. Rawalpindi, the present petitioner, and others. It was further alleged by the said complainant, Muhammad Ayub that Fazle Mukhtar and Muhammad Safdar Khan U.D.C./Cashiers had operated the Bank Accounts with Rs,50 million opened in the names of bogus firms. The complaint of Director-General Audit further went on to allege that during the preliminary inquiry, Sakhi Muhammad Khattak confirmed in his statement that the cheques amounting to Rs,17 million were issued in the name of his firm which were got encashed by one Muhammad Hafeez son of Muhammad. Shafi (brother-in-law of Mr. Fazle Mukhtar), the then Cashier G.E. (West) by opening a fake account in the name of his firm in Habib Bank Ltd. Peshawar Road Branch, Rawalpindi whereas no material was supplied against the amount in question nor any record was available with the Department regarding the supply of items. He further deposed that the Central Stock (Stores)
4. Rawalpindi had made an expenditure of Rs,20 million through cheques in 15 days in the month of June, '1995 against suspected Bazar Supply contracts. The contents of the abovementioned complaints and the statements of witnesses, prima facie constituted the offence under section 409/468/471/477-A/109, P.P.C. Read with section 5(2) 47, P.C.A. Against Zulfiqar, S.D.O., Zakim Khan Mahsood, XEN, Fazle Mukhtar and Safdar Khan U.D.Cs./Cashiers. On the facts, thus, disclosed in the F.I.R., the case was registered against the accused persons with the approval of the competent authority.
3. The petitioner Zakim Khan Mahsood was arrested on 21-5-1997 pursuant to the F.I.R. Registered, as aforesaid, on 9-4-1997. He applied to the Special Judge Central for bail after arrest on 29-5- 1997. His bail application was however, dismissed by the said Court on 23-6-1997. Hence this petition for post-arrest bail before this Court.
4. The allegations made in the F.I.R. And the evidence collected during the investigation prima facie connects the petitioner with the offences alleged against him. After the registration of the case, the relevant record was requisitioned from the State Bank of Pakistan, Rawalpindi, A.B.L. Chohar Harpal Branch, H.B.L. Massey Gate Branch, City Bank, Military Accountant-General, Controller of Military Accounts, Commander MES (Anny), G.E. (Army) West, G.E. (Army) East, D.W. And CE (Army) E-in-C's Branch, G.H.Q. And Qtg. Branch, G.H.Q., Rawalpindi. However, according to the learned Standing Counsel only the scheduled Banks had provided the record so far. .The scrutiny whereof revealed startling facts which showed that the cheques of G.E. (Army) West signed by the accused/petitioner amounting to more than 10 crores were deposited in 10 fake accounts of seven different bogus firms in A.B.L. Chohar Harpal Branch, Rawalpindi and H.B.L. Massey Gate Branch, Rawalpindi. These accounts were operated by Fazle Mukhtar Cashier (since arrested). He made four Pay Order from these accounts amounting to Rs,1,10,73,000 in the name of Zakim Khan Mahmood the petitioner which were credited in his accounts in City Bank, Rawalpindi. The accused Fazle Mukhtar Cashier was arrested and Saving Certificates worth Rs,2.75 crores were recovered.
5. The accused admitted the fraud with the connivance of accused/petitioner Zakim Khan Mahsood.
6. 13 Accounts in different Banks at Rawalpindi/Islamabad in the name of petitioner, his son Sher Baz Khan and wife Mrs. Irana Mahsood were traced during the investigation. Their record was obtained.
7. It revealed that total transactions of Rs,25,12,68,665.70 have been made in these accounts. The accused has sent U.S. $ 29,25,925 and 1=, 5,000 to his Bank Accounts in City Bank Dubai, London and Washington which is equal to Rs,11.74 crores approx. An amount of Rs,22,30,680.76 is still lying in his accounts which has been freezed. Scrutiny of the record of State Bank of Pakistan revealed that the petitioner spent Rs,40.90 crores in just one month i,e, June, 1994 which is practically impossible.
8. Moreover, the office of G.E. (Army) West Rawalpindi has the job of maintenance only. It has no concern with major works i,e, construction. Such a huge amount on mere maintenance cannot be spent. Formations under G.H.Q. Had not supplied the relevant record so far. The details of the Bank accounts of accused Zakim Khan Mahsood traced out so far during the investigation are as under:--
5. {{TABLE TEXT}}
1. Account No.5314500-018 opening dated, 30-3-1994. Total turn out upto 12-4- 1995.Rs.4,88,01,249.35.
9. Present balance. Rs. Nil.
(2) Account No.5314500-107 opening dated 5-12-1992 in U.S. Dollars.$ 40,13,648.44 (Rs.16,05,45,937.60)
10. Total turn out upto 4-1-1997.
11. Present Balance.$ 11,247.76 (Rs.4,50,000)
12. Amount transferred to Citi Bank London and Dubai $ 26,25,925.00
(3) Account No.5314500-204 in Pound Sterling opened on 5-12-1992, total turn up upto 4-1-1997.--- 57,513.58 (Rs.3,73,800)
13. Amount transferred to Citi Bank London. 5,000.00 Present balance. 93.98(Rs.6,500)
(4) Joint Account No.5319718-011 with his son Sher Baz Khan in Pakistan Rupees opened on 26-6-1995.
14. Total turn out upto 12-5-1997. Rs.1,28,98,343.46 Present balance Rs.5,024.80
(5) Current joint Account No.319718-028 with his son Sher Baz Khan opened on 18-1-1996.
15. Total turn out upto 5-5-1997. Rs.17,16,014.99 Present balance Rs.2,41,996.16
(6) Account No.5319719-018 in the name of Mrs. Irana wife of Zakim Khan Mahsood.
16. Total turn out Rs.85,58,251.22 Present balance Rs.88,214.91
(7) Account No.319719-016 in the name of Mrs. Irana Mahsood wife of Zakim Khan Mahsood.
17. Total turn out. Rs.13,69,471.31 Balance. Rs. Nil.
(8) Citi Bank Credit Card, visits of London, Paris, Netherland, Turkey, Saudi Arabia.
(8) Citi Bank Credit Card, visits of London, Paris, Netherland, Turkey, Saudi Arabia.
18. Bank of America, Islamabad
(1) Account No.6036-237934-090 in Pakistan Rupees.
19. Total turn up and present balance. Rs.1,04,943.75
(2) Account No.6036-237934-091 in U.S. Dollars.
20. Total turn out. $1,67,491.73 Transferred to Citi Bank WashingtonD. C. $ 1,50,000.00 Present balance. $ 17,491.73 Present balance. $ 17,491.73 A.N.Z. Grindlays Bank, Rawalpindi
(1) AccountNo.1150-103160-201 in Pakistan Rupees; Total turn out and present balance Rs.3,12,228.54
(2) Account No.1150-103160-281 in Pound Sterling.
21. Total transaction and present balance. --- 03,746.65
(3) Account No.1150-103160-281 in U. S. Dollars.
22. Total turn out. $ 1,59,080.87 Transferred out. $ 1,50,000.00 Present balance. $ 9,051.66 Breakup Total amount sent abroad in Foreign Currency.$ 29,25,925.00 --- 5,000.00 (Rs. 11,73,87,000)
23. Total transaction in 12 accounts. Rs.25,12,68,665.70 Present balance freezed. Rs.22,20,680.76 {{TABLE TEXT}}
5. Mr. S.M. Zafar, learned counsel for the petitioner advanced the following contentions in support of his plea for the enlargement of the petitioner on bail:--
(i) Placing reliance on the letters dated 6-4-1995 attached with the application for bail as Annexure "B", letter, dated 9-4-1995 Annexure "B/1", letter, dated 29-2-1996, Annexure "C", letter, dated 25-3- 1997, Annexure "C/1", letter attached as Annexure "D" and letter, dated 294-1997 attached as Annexure "D/1", learned counsel for the petitioner submitted that various functionaries of the Defence Formations had controverted the allegations made regarding the suspected embezzlement and in this view of the matter, the case against the petitioner was one of further inquiry and on the basis of settled position of the law as to this, the petitioner was entitled to the concession of bail;
(ii) Placing reliance on certificates attached with the bail application as PC.!'
24. ' Annexures "E", "E/1" and "E/2, learned counsel sought to establish that the petitioner was a man of means and huge deposits discovered by the F.I.A./Investigating Agency during the investigation could be explained away and no adverse inference could be drawn against the petitioner on the basis of the said deposits. Vide certificate Annexure "E", he allegedly sold out the following properties on prices mentioned against each and earned profits/increased the principal amount thereby:-- {{TABLE TEXT}} S.No.Property Place Value 1 Agricultural land Makin Rs.85,00,600 2 Diyar Jungle Shawal Rs.60,00,000 3 Open Land Raghzai/Shakarkot. Rs.55;00,000 4 Miscellaneous Properties.Sarai Market/Makin and Shehlana (South Waziristan)Rs.68,00,000 Vide certificate Annexure "E/1", the petitioner is alleged to have sold the following properties and earned profit as s hown against each.
25. 1.Oak and olive Jungle.Zhawar and SaparaRs.15,00,000 2.Three Shops Sarai Market Rs.12,00,000 3.House Property Makin Rs.16,00,000 4.Open Land Manzai Rs. 9,00,000 Vide certificate attached as Annexure "E/2" it was allegedly certified by the Maliks of South Wazirastan Agency that owing to distribution of property done by a Jirga comprising of the said Maliks, in line with the Tribal Tradition the petitioner became the sole owner of the following movable and immovable properties with their value mentioned against each as under:-- S. NoProperty Place Value 1 Agricultural Land Makin Rs.25,00,000 2 Open LandBaghzai AshkarkotRs.15,00,000 3 Open Land Shawal Rs.5,00,000 4 Open Land Manzai Rs.3,00,000 5 Commercial Land Dwa SarakRs.20,00,000 6 Diyar Jungle Sahawal Rs.30,00,000 7 Oak and Olive Jungle Zhawar Rs.4,00,000 8 Oak and Olive Jungle Sapara Rs.5,00,000 9 Oak and Olive Jungle Sheshana Rs.5,00,000 10 House Property. Makin Rs.8,00,000 11 Plot for petrol pump Sarai MarketRs.15,00,000 12 Gold and Cash. Makin Rs.6,00,000 13 Three shops Sarai MarketRs.6,00,000 14 Weapons and AmmunitionMakin Rs.3,00,000 15 Bedford Trucks/Bus (five)S.W. AgencyRs.7,50,000 16 Marble Quary Zeer Sar Rs.7,00,000
(iii) that the arrest and detention of the petitioner was wholly unauthorised as the sanction of Anti- Corruption Council as envisaged under the instructions applicable to the F.I.A. Had not been obtained as the petitioner was a Grade-18 employee and could not be arrested or proceeded against without the prior sanction of the said Anti-Corruption Council; and
(iv) that the F.I.A. Had not obtained in any case the sanction of the G.H.Q. Before the registration of the case against petitioner and for this reason also, the case against the petitioner could not be registered.
26. 6: Ch. Afrasiab Khan, learned Standing Council for the Government of Pakistan assisted by Mirza Muhammad Ashraf, Assistant Director, F.I.A. Controverted the contentions raised on behalf of the learned connsel for the petitioner and opposed vehemently the enlargement of the petitioner on bail.
7. I have considered and evaluated the submissions made by the learned counsel for the petitioner, Mr. S.M. Zafar, Advocate and those made in rebuttal thereof by the learned Standing Counsel but do not feel persuaded to exercise my discretion for enlargement of the petitioner on bail among others for the following reasons:--
(i) that the letters of the various functionaries of the Defence Formations referred to by Mr. S.M.
27. Zafar, Advocate and relied upon very heavily by him in support of his contention that the same rendered the case of the petitioner as one of further inquiry do not lend the requisite strength to the petitioner's case inasmuch as the case against the petitioner was registered on 9-4-1997 on the basis of a complaint made by the Director-General, Defence Audit Services on 10-1-1996 whereas the letters in question were written prior to that period. This apart, a perusal of the said letters would show that general observations were made in the said letters to the effect that there was no possibility of the alleged embezzlement in the concerned Formations because of the constant checks and audit of the said organizations. As against these general observations made in these letters, the evidence collected during the course of investigation pursuant to the inquiry and the registration of the case against the petitioner, concrete instances of the embezzlement had been unearthed, in the presence whereof there was no room for believing that there are reasonable grounds for believing that the petitioner is not connected with the offences alleged against him. It was not, therefore, correct to say on the basis of these letters that the case against the petitioner was one of further inquiry. In order to make a case as one of further inquiry, the conditions laid down in Ibrahim v. Hayat Gul and others 1985 SCM R 382 and Najeeb Gul v. Khalid Khan and another 1989 SCM R 899 had to be fulfilled;
(ii) that the reliance of Mr. S.M. Zafar, Advocate on the certificates attached with the bail application as Annexures "E", "E/1" and "E/2", so as to justify the huge deposits found in the various accounts detected by the prosecution during the course of inquiry/investigation against the petitioner is also, in my view, of no avail. I have very carefully and minutely examined the said certificates, the most prominent feature whereof is that all the certificates are undated. Their being undated is neither accidental nor a casual omission. It is rather deliberate and wilful. The certificates were left undated so as to make them capable of being used in any situation and for any period. This apart, their tone, tenor and the text betrays the purpose for which these have been got prepared by the petitioner. In any event, the certificates in question are conspicuous by the absence of necessary particulars of property subject-matter of various transactions referred to therein. Yet another circumstance for disbelieving these certificates is that these appear to be an afterthought inasmuch as no such plea as has been advanced by the learned counsel for the petitioner before this Court based on these certificates was raised by him or pleaded before the learned Special Judge Central. Had these certificates been in existence or the averments made therein bona fide and genuine, there was no reason why should the same have been withheld from the Court below or any plea based their upon not put up before the said Court;
(iii) that the contention of the learned counsel for the petitioner that the registration of the case against the petitioner was wholly unauthorized and the very detention of the petitioner was illegal is also to my mind not such as can be made the basis of the plea for the enlargement of the petitioner on bail. The learned counsel in support of his this submission has referred me to the instructions of the Federal Government providing that the registration of the case against the specified employees of the Federal Government had to be preceded by a sanction for the purpose from the Anti-Corruption Council and that in the absence of the said sanction the very registration of the case against the petitioner is unauthorised and illegal. A perusal of the F.I.R. Would show that it is averred at the end of the F.I.R. That the case has been registered with the approval of the competent authority. During the course of his arguments, learned counsel for the petitioner did not refer to this part of the averment in the F.I.R. Or pointed out that the defect, if any, as to the approval of the competent authority which permitted the registration of the case. In any event, this question the learned counsel can more appropriately raise when the petitioner is put on trial. The present is not the stage fit enough for going into the question such as this. There is a clear case registered against the petitioner through the F.I.R. Subject-matter of this case, he is named therein, the allegations made in the F.I.R. Prima facie connect him with the offences alleged against him and so also the evidence collected during the inquiry and pursuant to the registration of the case. In the presence of all this, it can hardly be said that the arrest and detention of the petitioner is unauthorised or unwarranted; and
(iv) that the contention of Mr. S.M. Zafar, Advocate, learned counsel for the petitioner that the sanction of the G.H.Q. Was not obtained prior to the registration of the case against the petitioner is also not such as deserves a serious notice. The petitioner is a civilian employee of the Federal Government though employed in a Defence related Formation. Being an employee of the Federal Government and accused of allegations such as formed the basis of the F.I.R. Against him, I am really at a loss to understand as to why should the petitioner's case be beyond the jurisdiction of the Federal Investigation Agency. The absence of sanction of G.H.O. In my view, would not render the registration of the case against him as illegal or invalid. Nor has any provision of law been referred to me making the sanction of G.H.Q. As sine qua non for the registration of the case against. The petitioner.
28. ' For all the aforestated reasons, the bail application is rejected.