1. ' Brief facts of the matter are that complainant Muhammad Dawood, General Manager, Personnel and Services, H.B.F.C., Karachi on 5-5-1999 lodged F.I.R. Bearing No,4 of 199 with Police Station F.I.A., S.B.C., Karachi, for offences under section 409, P.P.C. Read with section 5(2), P.C.A., 1947, alleging therein that the applicant/accused Hussain Haqani, while acting as Chairman/Managing Director, House Building Finance Corporation in September, 1996, made an investment of Rs,10 million without competency with ulterior motive in Asset Investment Bank, which did not have a sound position in the financial market. The amount was released on his personal order for one year at the rate of 15% per annum. The official note indicates that the case was put up under the directions of the applicant/accused and the amount of Rs,5 million proposed in the office note was raised to Rs,10 million with his own handwriting. The entire amount i,e, principal and interest was required to be returned by the Bank in September, 1997, but the said bank has repaid Rs,6.1 million only to date.
2. Whereas the remaining amount is still outstanding despite hectic efforts. The applicant/accused with collaboration of the management of the Asset Investment Bank by corrupt, dishonest and illegal means and in abuse of position as holder of public office, fraudulently misappropriated the Government amount under his control, thereby causing financial loss to the Government to the tune of more than Rs,6 million.
3. ' That F.I.A. Arrested the applicant/accused. Bail application on behalf of the applicant/accused moved before the learned Senior Special Judge (Central) II, Karachi did not favour with him vide order, dated 5-6-1999. Hence the present application.
4. ' Mr. Farooq H. Naek, learned counsel for the applicant/accused contended that the evidence so far collected by the prosecution is of documentary nature, which is already in possession of the prosecution, as such there is no likelihood of tampering with the prosecution evidence. He further, contended that the three cases for offences punishable under section 409 read with section 5(2), Prevention of Corruption Act, 1947, were registered against the applicant/accused whereas two cases have outcome from the F.I.R. No,3. The applicant/accused has been granted bail by the Honourable Lahore High Court, Rawalpindi Bench, vide order, dated 8-7-1999. That the applicant/accused is a prominent journalist and has been criticizing the Government of the day.
5. Moreover, the applicant/accused is also President, United Democratic Front. That the applicant/accused has been involved in false case, for exposing in the press the present regime's wrong doings. That the present case has been registered falsely against the applicant/accused to achieve the mala fide, ulterior motives and to harass and intimidate the journalists which is systematic persecution of the press. He contended that the F.I.R. Has been lodged after delay of 3 years. That from the contents of F.I.R. And material on record no case of criminal misappropriation can be made out and nowhere it is alleged that at any stage the applicant/accused gained any monetary benefit by misusing position. That the applicant/accused is in judicial custody since May, 1999 and is no more required by the F.I.A. For any investigation purpose. Mr. Farooq H. Naek, learned counsel for the applicant/accused, cited the following case-law:--
(1) 1978 SCM R 64, (2) 1983 SCM R 551, (3) 1995 M LD 1829, (4) 1996 MLD 1132, (5) 1997 PCr.LJ 1988 and
(6) 1998 M LD 202.
6. ' Mr. S. Mamnoon Hassan, learned Dy.A.-G., appearing on behalf of the State, vehemently opposed the grant of bail to the applicant/accused and submitted that the amount so deposited by the applicant/accused in the Asset Investment Bank was in totally defiance of the orders of the Federal Government. The Federal Government in their Circulars, dated 13-3-1991 and 15-6-1994 desired that the amount is to be deposited in the nationalised banks and that the financial position of the Asset Investment Bank was not so sound at the time of deposit of the amount. Even then the applicant/accused deposited the amount in the above bank. That the applicant/accused has misused his official position and is not entitled for concession of bail.
7. ' It will be pertinent to refer to the case-law and circulars cited by the learned counsel for the parties as follows:--
(1) Ijaz Akhtar v. The State 1978 SCM R 64.
8. ' In this case their Lordships held that fact of amount allegedly embezzled by accused being large, by itself, is no ground for refusing bail.
(2) 1983 SCM R 551 Hayat Muhammad v. The State, Muhammad Mumtaz v,. The State and Bashir Ahmad v. The State.
9. ' The facts of this case are that the appellant and the four other persons were employees of the office of the Dy.I.-G., Lahore, were tried by the Special Judge, Anti-Corruption, Lahore, for having allegedly committed an offence under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947. The three appellants and Abdur Rauf, co-accused, were convicted by the learned trial Judge. The appellants preferred the appeal before the learned High Court which was also dismissed. The appellants thereafter filed criminal appeals before the Honourable Supreme Court. Their Lordships have held that no direct evidence of conspiracy or collusion between accused persons in committing offence was available and view of Courts below about existence of such conspiracy found to be based merely on conjectures. Mens rea was completely lacking in the case. Accused cannot, in circumstances of case, be said to be guilty of an offence under section
409. Conviction and sentences were set aside.
(3) Saeed Ahmad v. The State 1996 SCM R 1132.
10. ' The dictum laid down by their Lordship is that case against accused entirely depended upon documentary evidence which was in possession of the prosecution and there was no possibility of tampering with the same. The accused was admitted to bail.
(4) Abid Rashid v. The State 1995 M LD 1829.
11. ' In this case it has been held that involvement of Government property or National interest in a case is no ground by itself for refusal of bail, as no such prohibition exists in subsection (1) of section 497, Cr.P.C.
(5) Pervaiz Ali Shaikh and another v. The State 1997 PCr.LJ 1988.
12. ' In this case it has been observed that the entire evidence collected by the the prosecution is based on documentary evidence which was in possession of the prosecution and there is no possibility of any tampering with the prosecution evidence.
(6) Abdul Jalil Khan v. State 1998 M LD 202.
13. ' The rule laid down in this authority is that the evidence against accused consisted of official record which having been taken into possession by the raiding party, there was no possibility of the same being tampered with by him. Bail was granted to the accused.
14. ' I have gone through the material placed with the case. I have also minutely considered the arguments advanced by the learned counsel for the parties. The case of the prosecution is that the applicant/accused while acting as Chairman, H.B.F.C., ordered the investment of Rs,10 million at the rate of 15% per annum with the Asset Investment Bank and for such investment agreement was drawn between the H.B.F.G. And the Asset Investment Bank. It is not denied by the prosecution that the Asset Investment Bank repaid the Rs,6.1 million and nowhere it is alleged by the prosecution that the applicant/accused misappropriated the Government money and gained monetary benefits from it. The circulars issued by the Federal Government Finance Division, requiring the autonomous bodies to deposit the amount in the nationalized banks and not in any private banks, in my humble opinion, cannot override the rule laid down by the superior Courts of the Country. The contention of Mr. S. Mamnoon Hasan, learned Dy.A.-G., is that the applicant/accused deposited the amount in Asset Investment Bank which is a violation of the circulars of the Federal Government, restraining the autonomous bodies from depositing the amount in a private bank, at the moment is not tenable because the H.B.F.C. Is a statutory body having its own rules of business, defining powers to be exercised by the various officials, the Chairman and board itself.
15. ' This issue would be considered and decided by the trial Court, after the evidence is recorded, necessary documents are exhibited, P.Ws. Are to be cross-examined by the defence then thereafter, the trial Court would be in a position to draw any inference. Mr. S. Mamnoon Hasan, Dy.A.-G. After consulting with the Investigating Officer stated in the Court that the interim charge- sheet has been filed before the Court having jurisdiction and the applicant/accused is no more required for further investigation.
16. Advisedly I refrain to dilate upon the aspect of the case as to whether the offence is likely to fall under section 409, P.P.C., or not because the evidence is yet to be recorded by the trial Court and any observation if made herein, may prejudice the case of the either party.
17. ' The entire case is based on documentary evidence which has already been collected by the prosecution, as such in my humble opinion there is no likelihood of tampering with the prosecution evidence at all. The wealth of the case-law cited by the learned counsel for the applicant/accused is relevant and helpful to the case of the applicant/accused which I respectfully follow. The applicant/accused is in custody since May, 1999 and in two other cases which are also of same nature, has been granted bail by the learned Lahore High Court at Rawalpindi Bench.
18. ' For the facts, circumstances and case-laws and circulars discussed, hereinabove, I am of the considered opinion that prima facie the case of the applicant/accused require further inquiry and he is entitled to be released on bail.
19. ' Consequently, I allow the application. The applicant/accused be released on furnishing solvent surety in sum of Rs,5,00,000 to the satisfaction of the Nazir of this Court.
20. ' On 19-7-1999 after hearing the learned counsel for the parties the application was allowed by short order.
21. ' Above are the reasons for the same.