1. ' SAIYED SAEED ASHHAD, J.--This bail application has been moved on behalf of accused Muhammad Younus Dalia, who is facing trial in this Court for offences of corruption and corrupt practices as defined in section of 3 of the Ehtesab Ordinance and punishable under section 4 of the said Ordinance.
2. ' The brief facts of the case as disclosed in the F.I.R. Dated 20-11-1996, lodged by complainant Khalid Bin Rashid Zahid, Vice-President of Messrs. H.B.L. And Officiating Manager of its Central Branch with the F.I.A., Crimes Branch Circle, Karachi, under sections 409, 419, 420, 468, 471 and 477-A, P.P.C. Read with section 34, P.P.C. Tid section 5(2) of the Prevention of Corruption Act, 1947, are that Naveed Akhtar Rajput and his father Saleem Akhtar Rajput, the absconding accused in the above case, were operating an account in H.B.L., Central Branch, under the name and style of M/s. Naveed Akhtar enterprises which was being operated by both accused Naveed Akhtar Rajput and Saleem Akhtar Rajput and they acting in league and collusion with the then President of M/s. H.B.L., namely accused Younus Dalia got sanctioned a loan/demand finance facility of Rs,273 million in their aforesaid account without offering any security and thereby misappropriated the aforesaid amount of Rs,273 million causing wrongful loss to M/s. H.B.L. And wrongful gain for themselves. The above misappropriation was made possible by accused Younus Dalia by misusing and abusing his above official position as well as violating the normal Banking procedure and practice in issuing instructions sanctioning the above loan/demand finance facility and disbursement thereof without obtaining any security from accused Naveed Akhtar and Saleem Akhtar for repayment of the above huge amount of loan. It is further stated that instead of demanding a fresh security for the above loan/demand finance facility, accused Muhammad Younus Dalia with mala fide and dishonest intentions to provide further gain and undue favours to the two absconding accused frittered the security of mortgage created in favour of M/s. H.B.L. By allowing release of the title documents/deeds of the properties, i,e, Plots Nos. 13 and 12-FT/4, Clifton, mortgaged by the above two absconding accused in favour of M/s. H.B.L. As security for earlier loan/credit facility utilised by them and their sister concern M/s. Saleem Rajput and Sons ordered release of Rs,273 million in favour of M/s. Naveed enterprises drawn on State Bank of Pakistan, and the above acts of commission and omission by accused Younus Dalia amounted to corruption and corrupt practices as defined in section 3 of the Ehtesab Ordinance.
3. ' Investigation was undertaken by Inspector Bashir Ahmed of F.I.A., who interrogated accused Muhammad Younus Dalia and also examined several prosecution witnesses namely, M/s. Zahiruddin, Assistant Vice-President, H.B.L., Shaikh Abdullah, Senior Vice-President, H.B.L. And Shaikh Muhammad Ahmed, Executive Vice-President and Regional Chief Executive, Karachi Region, H.B.L.
4. ' Accused Muhammad Younus Dalia was arrested on 20-11-1996 and interim charge sheet was submitted on 4-11-1996 (sic) in the Special Court (Offences in Banks) Sindh, Karachi, under section 409 read with section 109 and section 34, P.P.C. And section 5(2) of the Prevention of Corruption Act and accused Muhammad Younus Dalia who was produced before the Special Court was remanded to judicial custody while both accused Saleem Akhtar and Naveed Akhtar were shown as absconders in the above interim charge-sheet.
5. ' In addition to the above charge-sheet, the case against the above accused was referred by the Government of Sindh to the Chief Ehtesab Commissioner, who after examining the record and holding an enquiry in accordance with the provisions of the Ehtesab Ordinance opined that prima facie case was made out against accused Muhammad Younus Dalia as well as absconding accused Naveed Akhtar and Saleem Akhtar for having committed the offences of corruption and corrupt practices as defined in section 3 of the Ehtesab Ordinance and punishable under section 4 of the said Ordinance and, consequently, the learned Chief Ehtesab Commissioner referred the case against accused Muhammad Younus Dalia and absconding accused Naveed Akhtar Rajput and Saleem Akhtar Rajput to this Court under section 14(1) of the Ehtesab Ordinance for their trial thereunder. The above Reference was received in this Court on 4-2-1997 when it was registered as Ehtesab Reference No,12 of 1997 and date was fixed for trial of the accused persons after compliance of the provisions of section 265-A, Cr.P.C. Subsequently, the above bail application was moved on behalf of accused Muhammad Younus Dalia on 22-2-1997.
6. ' We have heard the arguments of Mr. Aliclul Hafeez Lakho, learned counsel for accused Muhammad Younus Dalia and Muhammad Akmal Waseem, learned Special Prosecutor. Mr. Akmal Waseem vehemently opposed the bail application of accused Muhammad Younus Dalia and submitted that from the material in possession of the prosecution it stands established beyond any doubt that accused Muhammad Younus Dalia in his capacity as President of M/s. H.B.L. Had showered undue favours and benefits to absconding accused Naveed Akhtar Rajput and Saleem Akhtar Rajput. He further submitted that sanctioning of a loan/demand finance facility of Rs,273 million in their favour by accused Younus Dalia in a hasty and rash manner without waiting for completion of the processing of the loan application of the two absconding accused by the relevant Departments and Officers was in itself a sufficient indication of his extraordinary interest in providing undue favours to the two absconding accused and coupled with his failure to insist for a fresh security for the above demand finance facility and ordering release of the documents of title of the two plots already mortgaged with M/s. HBL as security for the earlier loan/advance facility utilised by the two absconding accused to the tune of Rs,114 million established beyond any doubt his involvement in the above fraudulent and clandestine transaction. Mr. Akmal Waseem further submitted that the above acts of accused Younus Dalia amounted to corruption and corrupt practices as defined in section 3 of the Ehtesab Ordinance and he has been rightly indicted under the said Ordinance.
7. ' Mr. Abdul Hafeez Lakho raised a legal objection with regard to the filing and registration of the above Ehtesab Reference in this Court on the ground that the accused has already been challaned in the Special Court (Offences in Banks), Sindh, Karachi on the basis of the above F.I.R. And his subsequent indictment for the offences in respect of which he has already been challaned, amounted to double jeopardy, which was not permissible in view of the provisions of Article 13 of the Constitution, section 403 of the Criminal Procedure Code, section 26 of the General Clauses Act.
8. He further submitted that the accused was initially challaned in the Special Court (Offences in Banks), Sindh, Karachi in respect of the offences described in the above F.I.R. And the Special Court would have the authority to proceed with the trial of accused Muhammad Younus Dalia, whereas the case received in this Court by way of Ehtesab Reference, not being legally maintainable and triable is to be cancelled/discharged. The above contention of Mr. Abdul Hafeez Lakho was vehemently controverted by the learned Special Prosecutor, who submitted that the provisions of Article 13 of the Constitution of Pakistan, 1973 and section 403, Cr.P.C. Become operative if an accused is convicted or acquitted of a particular offence, only then he would not be tried or prosecuted again in any of other Court or forum in respect of the said offence and such trial would be declared as illegal and void, but in this case the prosecution against him is pending in Special Court (Offences in Banks), Sindh, Karachi without trial or proceedings having commenced and similar is the position in this case where requisite proceedings are being undertaken for declaration of accused Naveed Akhtar Rajput and Saleem Akhtar Rajput as absconders and, therefore, the provisions of Article 13 of the Constitution, section 26 of the General Clauses Act and section 403, Cr.P.C. Do not have any application for the time being and this ground can only be raised on behalf of accused Muhammad Younus Dalia when he is or would be convicted or acquitted by the Special Court (Offences in Banks), Sindh, Karachi. The arguments advanced by the Special Prosecutor are not without substance and from perusal of Article 13 of the Constitution of Pakistan, section 26 of the General Clauses Act and section 403, Cr.P.C. We find ourselves in agreement with the learned Special Prosecutor that the above 'Constitutional provisions and the provisions of the Criminal Procedure Code as well as of section 26 of the General Clauses Act, would be operative and effective if accused Muhammad Younus Dalia is convicted or acquitted by one of the Courts wherein he is facing trial for one and the same offence, and then only the proceedings in the other Court would have to be stopped/suspended or dropped against accused Muhammad Younus Dalia. For the time being, the Reference received in this Court is neither to be suspended nor his case is liable to be dropped or referred back as not legally entertain able, as suggested by Mr. Abdul Hafeez Lakho on the ground that it is violative of Constitution of the Pakistan as well as section 403, Cr.P.C. It will be advantageous to refer to the case of Muhammad Ashraf v. The State, reported in 1995 SCM R 626, wherein the above controversy was in issue and their lordships of the Supreme Court were pleased to hold that Article 13(a) of the Constitution would be attracted only if an accused is convicted, whereas in case of acquittal, the second trial of prosecution was not prohibited. In relation to section 403, Cr.P.C. Their lordships expressed the view that it prohibits a second trial or prosecution during the course of existence of a conviction or acquittal. Their lordships further observed that provisions of section 26 of the General Clauses Act do not debar simultaneous prosecution but prohibit duplicate punishment. The observations made and the views expressed by their lordships of the Supreme Court render the contention raised by Mr. Abdul Hafeez Lakho futile as there exists no order of conviction or acquittal of accused Younus Dalia, so as to attract the provisions of Article 13 of the Constitution. Section 403 of Cr.P.C. And section 26 of the General Clauses Act.
9. ' Mr. Abdul Hafeez Lakho, learned counsel for accused Younus Dalia, with regard to the acts of commission and omission alleged against accused Younus Dalia submitted that from the facts disclosed in the F.I.R., the material and the documents available on the record, the prosecution has failed to make out or establish the existence of a prima facie case of commission of any of the above alleged acts by accused Younus Dalia. In this connection it was pointed out by Mr. A.H. Lakho that application dated 29-8-1995 for sanction of the demand finance facility of Rs,273 million was addressed to Shaikh Muhammad Ahmed, E.V.P., and Regional Chief Executive and not to accused Younus Dalia and further that the said application was forwarded by accused Younus Dalia to the relevant Department/Regional Office for processing, whereupon the Regional Headquarters, Karachi had submitted credit proposals and had proposed allowing fresh demand finance facility to the extent of Rs,273 million, which was to be utilised for purchase of commercial plot bearing No,12/FT-4, measuring 4500 sq. Yds., Clifton, Karachi, for its development, and for construction of commercial multi-storey building thereon. Mr. Lakho further submitted that the concerned department/Regional Headquarters proposed sanction of the above demand finance facility on furnishing securities by the absconding accused Naveed Akhtar and Saleem Akhtar by creating a legal mortgage up to Rs,5 million and the remaining amount of demand finance was to be secured by way of equitable mortgage by deposit of title deeds of plot bearing No,13-A/FT/4 measuring 2262 sq. Yds., Clifton, Karachi, which was later to be substituted by Plot No,12/FT/4, Clifton. Mr. Lakho finally submitted that the application of the two absconding accused for grant of the above fresh demand finance facility was examined and processed strictly in accordance with the practice and procedure applicable to the processing and examining of such request/application and further that the above demand finance facility was not sanctioned solely by accused Younus Dalia but by the Executive Credit Committee, which besides accused Younus Dalia consisted of three senior most Executive Vice-Presidents and in this connection he drew our attention to Memorandum No,1015 dated 8-1-1996 Form 'A' Memorandum No,1015 dated 8-1-1996 Form 'B', Memorandum No,1015, dated 8-2-1996 Form 'C', Memorandum No,1015, dated 8-1-1996 Form 'C-1' Memorandum.
10. No,1015, dated 8-2-1996, Form 'D', and Memorandum No,1015, dated 8-2-1996 Form 'E', to substantiate his above contention. All the above documents bear the seal and signatures of the Assistant Vice-President/Executive Vice-President. The Memorandum dated 8-2-1996, Form 'E' bears a note that the recommendations/decisions embodied in the above Form 'E' were made or taken by the Executive Committee. As regards the allegations of the prosecution relating to fraudulent and dishonest action of accused Younus Dalia in frittering the charge/mortgage treated in respect of Plots Nos.13-FT/4 and 12-FT/4, Clifton as security for repayment of earlier advances/loans utilised by M/s. Saleem Rajput and Sons, a sister concern of M/s. Naveed Enterprises to the tune of Rs,114 million, Mr. Abdul Hafeez Lakho, submitted that accused Younus Dalia had neither acted with dishonest or fraudulent intention nor had frittered the mortgage/charge existing in favour of M/s. H.B.L. Over the aforesaid two plots and the sole object of releasing the title deeds/documents of the two plots in dispute, was to enable the two absconding accused to create a Part Passu mortgage in respect of one of the said two plots in favour of M/s. M.C.B. As security for the loan/credit facility allowed to the two absconding accused to the tune of Rs,160 million. He further submitted that accused Younus Dalia had ordered only the release of the documents of title of the said two plots and had not redeemed or frittered the mortgage/charge created on them in favour of M/s. H.B.L. It was further submitted that the above action of accused Younus Dalia was in accordance with the final proposal submitted by the Regional Office/Headquarters of M/s. H.B,L. Thereby completely negating the prosecution allegation that it was accused Younus Dalia who with dishonest and fraudulent intention allowed undue favours and benefits to the two absconding accused.
11. ' We have considered the arguments advanced by Mr. Lakho and with his help have also perused the material on record, specially various credit proposals, referred by him hereinabove pertaining to the sanctioning of the above demand finance facility. It is correct that the proposal for sanctioning the above demand finance facility was prepared by the officers of the Credit Department/Regional Headquarters and the demand finance facility was approved by the Executive Credit Committee, but this fact, however, would not absolve accused Younus Dalia of his dishonest and fraudulent actions inasmuch as it is the case of the prosecution as submitted by the learned Special Prosecutor, that accused Younus Dalia had sanctioned the demand finance facility by writing a note in his hand writing on the application of accused Saleem Akhtar dated 29-8-1995, written on a paper/leaf, which appeared to have taken out of an exercise copy or a journal used for rough work. It is also a fact that at the time when accused Younus Dalia sanctioned the above demand finance facility, the proposals referred to by Mr. A.H. Lakho had not been prepared and finalised by the relevant Officers. This action of accused Younus Dalia is indicative of his extraordinary interest and eagerness to sanction the demand finance facility against all rules and procedure for reasons best known to him and is in conflict with his plea of innocence. It is also the case of the prosecution that accused Younus Dalia had specifically and clearly conveyed to all the concerned officers/Departmental Heads his desire for allowing/sanctioning of the above demand finance facility in favour of the above absconding accused at all cost irrespective of the rules and procedure and had directed them to prepare proposals and give suggestions accordingly, thus exercising influence and pressure of his office on his subordinate officers, which include Members of the Credit Executive Committee. The above factual position and the allegations levelled against accused Younus Dalia find support from the statements of P.Ws. Shaikh Abdullah, Shaikh Muhammad Ahmed and Zaheeruddin and complainant Khalid Bin Rasheed. The arguments advanced by Mr. A.H. Lakho by way of explanation for the dishonest and fraudulent action of accused Younus Dalia in frittering with charge/mortgage already existing in favour of M/s. H.B.L.
12. Over the said two plots as security for the earlier loans/credit facilities availed by the two accused and M/s. Saleem Rajput and Sons, a concern of the two absconding accused, to the tune of about Rs,114 million, would have been worth consideration if absconding accused Naveed Akhtar and Saleem Akhtar had acted in accordance with the proposal made by them and had created a second mortgage in favour of M/s. M.C.B. In respect of one of the said two plots for the loan/credit facility of Rs,160 million sanctioned by M/s. M.C.B. For this purpose, release of the title deeds of the two plots in dispute was not required and all that was required to be done by the two absconding accused was to execute an undertaking or an agreement/deed creating a second mortgage in favour of M/s. M.C.B. In addition to the existing equitable mortgage in favour of M/s. H.B.L. Over the two plots in dispute. The release of the title deeds and their return to the two absconding accused was, thus, not with the object of creating a pari passu mortgage in favour of M/s. M.C.B. But for releasing and setting free the two plots in dispute with mala fide and fraudulent intentions. From the material on record it is revealed that the two absconding accused neither created any mortgage in favour of M/s. M.C.B. In respect of the said two plots in dispute nor mortgaged or re- mortgaged the same in favour of M/s. H.B.L. By surrendering/depositing the said title deeds/documents, as security for repayment of the demand finance facility of Rs,273 million which, in due course, had been utilised by them in full.
13. Upon the above discussions, we are satisfied that the sanctioning/allowing of the demand finance facility in favour of absconding accused Naveed Akhtar and Saleem Akhtar to the tune of Rs,273 million without furnishing any tangible security, was due to dishonest and mala fide intention of accused Younus Dalia for accomplishing which he resorted to commission of fraudulent and illegal acts in abuse of his authority and powers as the then President of M/s. H.B.L. Thereby causing wrongful loss of Rs,273 million to M/s. H.B.L. And a wrongful and fraudulent gain to the tune of Rs,273 million in favour of absconding accused Naveed Akhtar and Saleem Akhtar. The above wrongful loss to the Bank and wrongful gain to absconding accused Naveed Akhtar and Saleem Akhtar could have been easily avoided if accused Younus Dalia had acted in a bona fide and honest manner in accordance with the practice, procedure and rules in force for sanctioning of loans/cash/finance facilities by the Nationalised Banks, keeping in view the interests and rights of the Bank foremost than his personal rights and interests or those of the absconding accused.
14. We are also satisfied that from the material in possession of the prosecution, accused Younus Dalia prima facie stands connected with the offences of corruption and corrupt practices as defined in section 3 of the Ehtesab Ordinance and punishable under section 4 thereof. Punishment for the above offence can extend to seven years' imprisonment and/or fine and we are fully aware of the general principle that bail in a non-bailable offence, not punishable with death, imprisonment for life or 10 years is to be granted as a rule and refusal is an exception. The case of the accused falls within the category of exceptional circumstances in view of his having deprived M/s. H.B.L. Of the money belonging or kept in trust by the general public to the tune of Rs,273 million by his mala fide, dishonest and fraudulent acts and wrongful gain to a party who had also acted in a fraudulent, dishonest and unlawful manner. Another circumstance which has adversely effected the case of accused Younus Dalia for grant of bail is the possibility of his absconsion. In this connection learned Special Prosecutor has drawn our attention to the case of accused Syed Abdullah Shah, who had absconded though his name appeared in the Exit Control List. It may be mentioned here that Mr. Bashir Ahmed Siddiqui, the learned Special Prosecutor in Ehtesab References Nos.24, 25, 26 and 26 of 1997 had brought it to our notice that many important personalities, who were involved in fraudulent and dishonest activities and acts of cheating in acquiring illegal and wrongful gain, wealth and properties, had succeeded in escaping out of Pakistan through launch service/operation being carried on by several parties from Marina Club for taking persons out of Pakistan. The possibility of accused Younus Dalia in escaping and going out Pakistan through such service/operation cannot be ruled out.
15. Lastly, it was contented by Mr. A.H. Lakho that involvement of accused Younus Dalia in this case is an act of discrimination as the prosecution has not taken any action against the relevant officers, who had prepared the proposal suggesting that the demand finance facility requested by the two absconding accused be sanctioned. He further submitted that similarly no action has been taken against the Members of Executive Credit Committee, who had approved the proposal and these actions clearly suggest bias and mala fides of the Prosecution Agency towards accused Younus Dalia leading to the presumption that his prosecution is by way of victimisation. The above contention is without any substance as the facts and circumstances enumerated above establish the commission of acts which prima facie amount to corruption and corrupt practises as defined in section of the Ehtesab Ordinance and accused Younus Dalia has been rightly indicted therefor.
16. As regards the inaction of the Prosecution Agency to proceed against the concerned officers and Members of Executive Credit Committee, the learned Special Prosecutor submitted that no person, who would appear to be involved or to have participated in the commission of the above offence, upon evidence to be produced in Court, would be spared and would be joined as an accused.
17. ' The result of the above discussion is that the learned counsel for accused Younus Dalia has failed to make out a case for enlarging him on bail and we, accordingly, reject this bail application. 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.