1. ' This bail application has been moved on behalf of the applicant/accused Younus Habib, who is facing trial for the offences punishable under section 420/409/467, P.P.C. Read with section 109, P.P.C. In the Special Court (Offences in Banks) Sindh, Karachi, on the basis of F.I.R. No,176 of 1997, dated 16-5-1994. The brief facts of the case, requisite for the purpose of disposal of this bail application, as disclosed in the bail order of the learned trial Court, dated 11.4-1998, are as under:- "The accused was Chief Operating Officer, Mehran Bank Limited during the period 23=2-1994 to 30=3-1994, During this period he issued four request letters and fraudulently confirmed US $ 640,00Q, 760,000, 618,000 and 722,000 as ready sale without actually providing US Dollar cover/balance with Habib American Bank, New York. Thus, on the basis of above bogus transactions, dishonestly induced the Deposit Account Department, State Bank of Pakistan, Karachi, to deliver Pak Rupees proceeds amounting to 19,500,000, 2,31,75,200 1,88,30,460 and Rs,2,20,21,000 totalling to Rs,8,35,05,460 and thereby cheated and caused wrongful loss to S.B.P. And wrongful gain to himself."
2. ' Bail application moved on behalf of the applicant/accused before the trial Court was dismissed vide order, dated 11-4-1998 on both the grounds raised before it i,e, statutory delay of one year in conclusion of the trial and the contention that the evidence and material in possession of the prosecution did not prima facie connect the accused with the commission of offence punishable with death or imprisonment for life or imprisonment for 10 years so as to disentitle him from seeking bail in view of the embargo contained in section 497, Cr.P.C. Feeling aggrieved and dissatisfied with the order of the learned trial Court, the applicant/accused has preferred the present bail application.
3. ' We have heard the arguments of Mr. Abdul Mujeeb Pirzada, learned counsel for the applicant/accused and Mr. Syed Tariq Ali, learned Standing Counsel for the State and have also perused the material on record.
4. ' The allegation against the applicant/accused is that he was Chief Operating Officer, Mehran Bank Limited, during the period from 23-2-1994 to 30-3-1994 and he by means of 4 bogus, dishonest and fraudulent transanctions got transferred/delivered Pak Rupees amounting to Rs,19,500,000, 2,31,75,200, 1,88,30,460 and 2,20,21,000 totalling to Rs,8,35,05,460 from the Deposit Account Department of the State Bank of Pakistan, in favour of Habib Bank, New York, without providing US Dollars cover by depositing in Habib American Bank, New York'US $ 2.74 million equivalent to the amount of Rs,8,35,05,460 in favour of the State Bank of Pakistan with the Federal Bank, New York, which resulted in loss of Rs,8,35,05,460 to State Bank of Pakistan and wrongful and illegal gain to the applicant/accused. From perusal of the material on record, specially the charge-sheet, it is clearly established that the applicant/accused neither withdrew the aforesaid amount from Mehran Bank nor transferred to any other account nor utilized and misappropriated the same, with the result that the culpability of the accused regarding the commission of offence of criminal breach of trust by a banker as defined in section 409, P,P,C., requires further enquiry Mr. Abdul Mujeed Pirzada, learned defence counsel submitted that the evidence and material in possession of the prosecution was also hopelessly insufficient even to make out the commission of offences punishable under sections 420 and 467, P,P,C, In this connection he submitted that the prosecution has not been able to establish that the applicant/accused was acting with guilty mind or has criminal intention to misappropriate or to convert for his own use the aforesaid amount in dispute when he got the same transferred from the State Bank of Pakistan and deposited it in Mehran Bank, inasmuch as presence of guilty mind or intention was a necessary condition for constitution of a criminal act/offence. Relating to the offence under section 467, P.P.C. Mr. Abdul Mujeeb Pirzada submitted that the prosecution has not brought on record any document purported to have been forged by the applidant/accused with the intention of making or transferring any valuable security, or to receive or deliver any money, movable property or valuable security. Mr. Abdul Mujeeb Pirzada further submitted that the absence of guilty mind or intention is very much clear from the fact that the first transfer had taken place on 23-2-1994 and the last transfer had taken place on 3-3-1994 but till 24-3-1994, when the applicant/accused was arrested, he had neither withdrawn the aforesaid amount from Mehran Bank nor had got the same transferred to any other account with the intention to misappropriate or put the same for his own use. Mr. Syed Tariq Ali, learned Standing Counsel, was unable to controvert the above factual position but submitted that the applicant/accused prima facie stood connected with the offences with which he has been charged, inasmuch as he by misinformation and false statement regarding depositing of US Dollars on behalf of the State Bank of Pakistan with Federal Reserve Bank, New York, induced the concerned officer of the State Bank of Pakistan to transfer the aforesaid huge sum of money to Mehran Bank and such mala fide and dishonest action without any doubt prima facie established the commission of the aforesaid pffences by the accused/applicant.
5. ' We have considered the arguments advanced by the learned defence counsel and the learned counsel for the State and have also perused the material on record and the relevant provisions of the law. There is no denial of the fact that the amount of Rs,8,35,05,460 was got transferred from the State Bank of Pakistan to Mehran Bank Limited on the statement/claim made by the applicant/accused of providing cover/depositing US Dollars equivalent to the above amount in favour of State Bank of Pakistan in the Federal Reserve Bank, New York but the same was neither taken out and physically possessed by the applicant/accused or by anybody else on his behalf nor the same was transferred to any other account so as to give an indication or suggestion that the applicant/accused intended to misappropriate the same or to use the same personally. It has also been conceded during the course of arguments that the US Dollars equivalent to aforesaid Pakistani Rupees were duly deposited/credited in favour of State Bank of Pakistan with Federal Reserve Bank, This fact completely negates the prosecution's claim that the applicant/accused had intended to usurp or misappropriate the aforesaid amount of State Bank of Pakistan by fraudulently and dishonestly getting it transferred without providing any cover security in terms of the US Dollars, The factum of deposit of the US Dollars for securing or covering the aforesaid Pakistani amount in Federal Reserve Bank in favour of the State Bank of Pakistan also negates the prosecution's allegations against the applicant/accused of having forged the documents and having used the same to dishonestly induce the Deposit Account Department of the State Bank of Pakistan to part with the aforesaid huge amount. An apprehension was raised by Mr. Syed Tariq Ali, learned Standing Counsel regarding possibility of absconsion of accused/applicant with a view to avoid from being tried for the aforesaid offence. In our view, such apprehension is absolutely baseless and without any substance in view of the fact that the accused/applicant though having been convicted by the Special Court (Offenses in Bank) Sindh, Karachi in two cases bearing Nos.23 of 1994 and 29 of 1994 was released on parole for a period of 15 days vide letter, dated 2-5-1998, issued by the Prime Minister Secretariat, Islamabad and the said period of parole was further extended from time to time. On 20-7-1998 when bail application was argued, the accused/applicant was present in Court on parole.
6. Upon the above discussions we are satisfied that the evidence and material in possession of the prosecution does not prima facie connect the applicant/accused with the aforesaid offences and there is no reasonable ground to believe him to be guilty of an offence punishable with death, imprisonment for life or imprisonment for 10 years. The case requires further enquiry with a view to prima facie connect the accused/applicant with an offence punishable with death, imprisonment for life or 10 years so as to bring his case within the prohibition contained under section 497, Cr.P.C.
7. So as to disentitle the applicant from being released on bail.
8. ' By a short order for reasons to be recorded later, we had granted bail to the applicant/accused in the sum of Rs,10,00,000 (Rupees ten lac only) with P.R. Bonds in the like amount to the satisfaction of the trial Court. These are the reasons for the said order.