1. The applicant/accused Sultan Badshah, Ashique Ali Bukhari and Amin Haroon have filed the above bail applications for grant of bail to them in Criminal Case No,1 of 1999 pending against them under sections 409, 420, 468 and 471, P.P.C. Read with section 109, P.P.C. And section 5(2) of Act II of 1947 in the Court of Senior Special Judge (Central) II, Karachi. Since all these bail applications arise out of a common order which was passed by the learned trial Judge on 20-4- 1999 all these applications are being disposed of by this single order.
2. The case of the prosecution as stated in F.I.R. Is that a K.E.S.C. Employee Abdul Rahim alias Amer and his two accomplices namely Nadeem and Shahid who were also employees of K.E.S.C. And one Arshad a business man committed forgery and they got passed a large number of forged bills with the help of forged stamps of different K.E.S.C. Zonal Managers. This fraud was being practised by the above named employees of K.E.S.C. And their associate Arshad since 1993. This illegal act, however, gained momentum since February 1998. All such forged and fraudulent bills were got passed and signed from the officers of Accounts Branch posting as correct and genuine bills. The amounts, thus, collected through these forged vouchers was deposited in Muslim Commercial Bank Abdullah Haroon Road Branch Karachi and in City Bank Karachi. These accounts were being operated by Abdul Rahim alias Amer who was handed over by authorities of K.E.S.C. To F.I.A. For further investigation. The F.I.R. Further shows that these were reports that Rs,15 million were embezzled since February 1998 but that was subject to further confirmation during investigation.
The F.I.R. Of this incident was lodged by Mr. Kamal Afsar Managing Director K.E.S.C. Karachi on 1-1- 1999 in respect of embezzlement which took place between the years 1993 to 1998.
3. I have heard Mr. Abdul Mujeeb Pirzada learned counsel for the applicant/accused Sultan Badshah and Mr. I.A. Hashmi learned counsel for applicant/accused Ashiq Ali Bukhari and lastly Mr. A.Q. Halepota learned counsel for applicant/accused Amin Haroon.
4. Mr. Pirzada contended that the name of Sultan Badshah did not transpire in F.I.R. Which was lodged after the high ups of K.E.S.C. Conducted enquiry regarding embezzlement of K.E.S.C.
Amounts. He submitted that the entire case against the accused rests upon documentary evidence which has been collected by the prosecution. He further submitted that the name of applicant/accused Sultan Badshah was inserted as an accused in third interim charge-sheet which was filed in the trial Court on 14-4-1999. Mr. Pirzada further contended that the fact that the amount embezzled was large, was no ground for refusal of bail. Lastly Mr. Pirzada contended that the case of the applicant/accused was identical to that of co-accused Azhar Siddiqui who was granted bail by me on (sic) It was, thus, urged by Mr. Pirzada, that applicant/accused Sultan Badhsha was also entitled to the same treatment and he too was entitled to grant of bail, on the principle of consistency.
5. Mr. I.A. Hashmi the learned Advocate for applicant/accused Ashiq Ali Bukhari who was a head Cashier contended that the name of Ashiq Ali did not transpire in F.I.R. That his name was added as an accused at a late stage. He was named as an accused in the second charge-sheet. Mr. Hashmi submitted that applicant/accused Ashiq Ali Bukhari was a Head Cashier and he made payments shown in various vouchers when they were finally brought to him after they were duly processed by various officers. This was urged by Mr. Hashmi, that except for section 409, P.P.C., all the remaining sections namely 420, 468, 471, 109, P.P.C. And section 5(2) of Act II of 1947 do not carry punishment, which fell under prohibitory clause of section 497, Cr.P.C. As far as section 409, P.P.C. Was concerned, it was urged by Mr. I.A. Hashmi that applicant/accused though posted as a Head Cashier, was not prima facie connected with the offence under section 409, P.P.C. It was thus urged by Mr. Hashmi that the applicant/accused Ashiq Ali Bukhari was entitled to be released on bail.
Lastly Mr. I.A. Hashmi also contended that the case of Ashiq Ali Bukhari was identical to that of co- accused Azhar Siddiqui who was granted bail and as such it was urged that applicant/accused Ashiq Ali Bukhari was also entitled to same treatment on the principle of consistency.
6. Mr. A.Q. Halepota who appeared on behalf of applicant/accused Amin Haroon submitted that both co-accused Azhar Siddiqui and applicant/ accused Amin Haroon were working as Assistant Chief Accountants in K.E.S.C. And that the functions of both these accused were identical. It is urged by Mr. A.Q. Halepota that the applicant/accused signed various vouchers brought to him in routine after the signatures of the authourised signatories were verified by the concerned officer in the pricing section where the applicant/accused Amin Haroon worked as Assistant Chief Accountant.
Mr. A.Q. Halepota submitted that it was none of the functions of the applicant/accused to verify the signatures of the authorised signatories from the specimen signatures which were required to be maintained by some other officer of K.E.S.C.
' Mr. A.Q. Halepota further submitted that the applicant/accused Amin Haroon is not a privy to the fraud and embezzlement. He neither abetted nor aided the main accused Abdul Rahim alias Amer, Nadeem, Shahid in the commission of this offence. It was further contended by Mr. A.Q. Halepota that the applicant/accused signed various vouchers after the signatures on each incoming reimbursement bills were tallied by the concerned officer with the specimen signatures available with him. Mr. A.Q. Halepota further submitted that since the case of the applicant/accused Amin Haroon was identical to that of co-accused Azhar Siddiqui who was also an Assistant Chief Accountant in final accounts section duly authorised to sign vouchers of pricing section and with duties and functions similar to those of applicant/accused, the principle of consistency was truly attracted to his case and the applicant/accused was entitled to the grant of bail on the principle of consistency.
7. I have also heard Syed Mammon Hassan the learned Deputy Attorney-General who appeared on behalf of State. He contended that the principle of consistency was not attracted to the case of any of the applicant/accused named above. He, however, admitted that he conceded to the bail plea of the co-accused Azhar Siddiqu.i. The learned Dy.A.-G. Stated that the Investigating Agency has collected a large number of documents on the basis of which huge payments were made to unidentified persons and the K.E.S.C. Lost millions of rupees. He further contended that the fraud and forgeries were spread over a period from the years 1993 to 1998 and the Investigating Officer was collecting the forged documents. The learned Dy.A.-G. Submitted that all the applicants/accused were party to the fraud and forgeries committed in respect of funds of K.E.S.C.
He stated that uptil now 63 vouchers were secured by the Investigating Agency and the scrutiny of many more vouchers was under process. In the circumstances the learned Deputy Attorney- General opposed the bail of all the abovenamed applicant/ accused.
8. I have carefully considered the arguments advanced by the learned counsel for the abovenamed three applicant/accused. I have also considered the submissions made by Syed Mammoon Hassan the learned Deputy Attorney-General. I have also gone through the impugned order.
9. It has transpired during the course of investigation that a well-organized gang of cheaters and forgers had indulged in misappropriation of millions of rupees by fraudulently preparing and using forged cash memos. And bills purported, to have been issued by the K.E.S.C. Users offices in connection with their urgent/emergent expenditures. These bogus bills were subsequently presented to the pricing section of accounts department for processing and clearance whereafter payments against these bogus bills were made by the accused/cashiers to the unknown persons.
10. This fraud which is a result of forgeries committed by various persons continued unabated from 1993 to 1998. The F.I.R. Of this incident was lodged by Mr. Kamal Afsar Managing Director K.E.S.0 on 1- 1-1999. The initial enquiries made by the high ups of K.E.S.0 showed that this fraud/embezzlement was committed by co-accused Abdul Rahim alias Amer, Nadeem and Shahid who were all the employees of K.E.S.C. A non-employee namely Arshad was also named as an accomplice of the above employees of K.E.S.C. But he was let-off during investigation. He is now witness for the prosecution. The perusal of the impugned order shows that the specimen signatures of the authorised signatories of various users departments of K.E.S.C. Remained in exclusive possession of the applicant/ accused Sultan Badshah who was posted as Office Superintendent at the relevant time. In this context the Investigating Officer has recorded 161, Cr.P.C. Statement of Syed Tauseeful Islam departmental head of accounts department who stated that specimen signatures are marked and required to be maintained by Office Superintendent Sultan Badshah .In the pricing section and it was his responsibility to tally and check the signatures appearing on each incoming reimbursement bill with the specimen signatures available on record before processing and forwarding such bills to other concerned officers. The applicant/accused Sultan Badshah who worked as Office Superintendent used to receive the incoming reimbursement bills, which were marked by him to a clerk working under his control for making debit/cash vouchers and after preparation of such vouchers, it was again marked back to him for his signature, whereafter it was referred to the accountant and then to the Assistant Chief Accountant for approval. The specimen signatures of the authorised signatories and receivers of Zonal Offices were supplied to the pricing section for comparison purposes and these maintained by the Office Superintendent applicant/accused Sultan Badshah in this case. The perusal of the impugned order further shows that this fact was even admitted by accused Sultan Badshah before the trial Court at the time his bail plea was being heard. The applicant/accused Sultan Badshah, however, stated before the trial Court that the specimen signatures of various user departmental signatories though in his possession could have been seen and verified by any other officer if needed since they were lying on his table. Since it was exclusively have responsibility of applicant/accused Sultan Badhshah to verify the signatures, and then forward such reimbursement bills to the other functionaries mentioned above, it was none of their business to again verify such reimbursement bills. The case of the applicant/accused Sultan Badshah is, thus, distinguishable from the rest of the accused. The applicant/ accused Amin Haroon, being the last officer to sign the reimbursement bills after they were verified by co-accused Sultan Badshah, and signed by accountant, I am of the considered opinion that his case necessitates further enquiry as contemplated under section 497(2), Cr.P.C.
Besides I have already granted bail to Azhar Siddiqui who was also Assistant Chief Accountant like the applicant/accused Amin Haroon. Azhar Siddiqui also signed vouchers pertaining to pricing section. Syed Mamnoon Hassan the learned Dy.A.-G. Had conceded to the grant of bail to Azhar Siddiqui for the reason that co-accused Azhar Siddiqui was the last officer in the hierarchy to sign the reimbursement vouchers, after the signatures of authorised signatories of users department were verified and signed by Office Superintendent, Accountant etc. As stated above. Syed Mamnoon Hassan the learned Dy.A.-G. Further stated that the applicant/accused may not have been vigilant enough while signing various reimbursement bills lastly received by him for his signature. In the circumstances the case of the applicant/accused B Amin Haroon is distinguishable from that of accused Sultan Badshah. Since I have already granted bail to Assistant Chief Accountant the co-accused Azhar Siddiqui, the applicant/accused Amin Haroon is also entitled to grant of bail keeping in view the principle of consistency laid by the Honourable Supreme Court in 1980 SCMR page 142. He is released on bail on furnishing surety in the sum of Rs,2,00,000 (Rupees Two lacs only) and P.R. Bond in the like amount to the satisfaction of trial Court.
11. As stated above the case of applicant/accused Sultan Badshah is distinguishable from that of applicant Amin Haroon. It was primary responsibility of accused Sultan Badshah to check and verify the signatures on reimbursement bills, with the specimen signatures under his control and then forward the vouchers prepared by a clerk under his control to the accountant for onward signature of Assistant Chief Accountant. Had the applicant/accused Sultan Badshah been vigilant, the vouchers would not been prepared, on the basis of signatures of various Users departments of K.E.S.C. Which were forged. In the circumstances the bail plea of applicant/ accused Sultan Badshah is rejected at this stage. He may if so advised move a fresh bail application before the trial Court after the investigation is completed and some material evidence is recorded by the trial Court.
12. As regards the head cashier the applicant/accused Ashiq Ali Bukhari his case is also distinguishable from that of applicant/accused Amin Haroon. The investigation conducted against the applicant/accused Ashiq Ali Bukhari showed that being a Head Cashier, it was his duty to obtain the signature and employee number of the person who received cash payment shown in the voucher presented by such person. It was undoubtedly his duty to take proper identification of the receiver of such amount in terms of his employee number and personnel number at the time of receipt of cash by such person. The case of the prosecution is that payments were made to unidentified persons since there are no employee and personnel numbers noted on these vouchers and payments were made by this accused without proper identification. Being a head cashier, the cash was under his control and he had dominion over it.
13. All these vouchers bear signature of the applicant/accused in token of payment cash to various persons. The absence of employee number and personnel number of receiver of cash on the basis of vouchers presented to the applicant/accused Ashiq Ali Bukhari prima facie showed his complicity in the commission of crime. In the circumstances the bail plea of the applicant/accused Ashiq Ali Bukhari is also rejected at this stage. He also may, if he is so advised move a fresh bail application before the trial Court after the investigation is complete and some material evidence is recorded by the trial Court.
14. The observations made hereinabove on the merits of the case are purely tentative and the trial Court will not be influenced by them in any manner whatsoever. The trial Court will consider the case purely upon independent evaluation/assessment of material, uninfluenced by whatever is stated above.
' With these observations all the above three bail applications are disposed of.