1. ' MUHAMMAD ROSHAN ESSANI, J.---A reference has been made against the applicant alongwith 13 other accused persons under the National Accountability Bureau Ordinance, 1999.
2. ' The reference was originally made to Accountability Court No,2 Attock Fort but the Hon'ble Supreme Court has directed the Chairman, N.A.B to file the reference before an Accountability Court at Karachi, as stated by Mr. Abdul Hafeez Lakho, learned counsel for the applicant. The Special Persecutors have not denied the above statement.
3. ' Mr. Abdul Hafeez Lakho, learned counsel for the applicant has submitted that, in the reference made by Chairman, N. A. B, there is not a single word against the applicant and except surmises and conjectures, there is no evidence in possession of prosecution against the applicant. He has submitted that merely because the Employees Old-Age Benefits Institution is alleged to have been caused loss of huge amount of over Rs,1,618,842,672 (One billion six hunded eighteen million eight hundred forty two thousand six hundred seventy two) and there are high sounding allegations, the liberty of the applicant should not be curtailed. He has contended that in the absence of any prima facie case against the applicant, the accused/applicant should not be kept in detention and should not be deprived of his liberty.
4. ' The learned Special Persecutors were asked to show as to what was the prosecution case against the applicant. They have contended that, it is specifically stated in the Reference No, 16 of 2002, in the case State v. S. Barakatullah and others that it was brought to the notice of N.A.B that Sheikh Barkatullah, Ex-Chairman, E.O,B,I, in connivance with Muhammad Tahir Siddiqi, General Manager (Finance) of Prudential Commercial Bank Limited and other co-accused in connivance with each other and by dishonest, fraudulent and deceitful means, deprived EOBI of F.I.Bs. Of the face value of Rupees 1040 Million, deriving benefits of more than a Billion of Rupees and causing loss to the E.O.B.I.
5. Of Rs,1,618,842,672 (Rupees one billion six hundred eighteen million eight hundred forty-two thousand six hundred seventy two). The matter was referred to F.I.A. For investigation and only three of the accused persons have been arrested while remaining accused persons have gone underground or have left the country. They have further pointed out that the prosecution case is contained in paras. 5 and 6 of the reference which read as follows:--
5. That the investigation carried out so far has revealed that during the period from June, 1999 onwards Sheikh Barkatullah, in complicity and connivance with Muhammad Tahir Siddiqui and other co-accused, who acted as their henchmen, managed to obtain physical possession of FIBs of the face value of Rupees 1040 Million, owned and held by E.O.B.I., without any security and transfer of funds, under a purported Repurchase option arrangement entered into between E.O. B.I.
6. And three companies namely, Pakistan Industrial and Commercial Leasing Company Limited (PICL), Prudential Discount and Guarantee House Limited (PDGH) and Prudential Securities Limited (PSL). They use these three companies only as instruments for illegally acquiring/selling the FIBs and getting the sale proceeds siphoned into another company by the name of Republic Securities Limited (RSL) which company is controlled/owned by Muhammad Tahir Siddiqui. Having illegally sold the FIBs the accused persons then created fake Repo deal between E.O.B.I. And RSL on 3-2- 2000 for the same FIBs, worth Rupees 600 Million and between E.O.B.I. And Interworld Securities Limited (IWSL) on 3-2-2000 for the same FIBS worth Rupees 440 Million. These purported Repo deals were entered E.O.B.I. With RSL and IWSL without receiving back the FIBs from PICL, PDGH and PSL and without any security. To further cover up the illegal sale of the FIBs, the accused persons staged a drama of terminating the purported Repo deals with RSL and IWSL and created yet another fake security based Repo deal with the Bank of Ceylon (BOC) on 26-9-2000 again without receiving back the FIBs from RSL and IWSL. The purported security obtained from the Bank of Ceylon was a post dated pay order of the amount of Rupees 1040 Million issued by BOC. This pay order as well as correspondence with Bank of Ceylon is reportedly forged/fake.
6. That the misappropriated amount was then funnelled into various companies controlled and owned by Muhammad Tahir Siddiqui besides being converted to the use of the accused persons, their associates, relatives and other persons. They have thus prima facie caused a loss to the E.O.B.I. Of Rs, 1,618,842,672 (One billion six hundred eighteen million eight hundred forty two thousand six hundred seventy two) approximately.
7. ' When asked to explain the specific role assigned to the present applicant in respect of the alleged loss to E.O.B.I., the learned Special Persecutors stated that the applicant Syed Samir Rauf, master minded the entire scheme for causing huge losses to E.O.B.I. In complicity and collaboration with Sheikh Barkatullah, Ex-Chairman, E.O.B.I. And other accused persons. They submitted that applicant floated various companies and fabricated various fake documents in furtherance of the conspiracy, just to siphon off huge amounts from the funds of E.O.B.I. And the said companies were used as a channel for the purpose. The learned Special Prosecutors have submitted that the applicant was Chief Executive of M/s. Prudential Securities (Pvt.) Ltd. (PSL) and subsequently, he floated another company namely M/s. Republic Securities (Pvt.) Ltd., (RSL) and became the Chief Executive thereof. They have further pointed out that in bail application it is stated that the applicant joined, `RSL' on 1-3-2000 but P.W. Muhammad Yousuf, has stated'that the applicant issued a cheque in the sum of Rs,155 Million in favour of Union Bank on 13-1-2000 and that on 14-2- 2000, the Board of Directors of '11SL' authorized the applicant/accused Samir Rauf to sign all cheques on behalf of 'RSL'. They have submitted that, it shows that the `RSL' was floated, controlled and managed by the present applicant and similar was the case with `PSL'. They have further stated that on 11-11-1999 the applicant issued cheques of Rs, 90 Million on behalf of 'RSL'. They have further submitted that post-dated pay orders were issued by Prudential Bank on 29-12-1999 and FIBs worth Rs, 1040 Million were transferred to Prudential Commercial Bank Limited without proper securities and subsequently the said FIBs were sold to Bank of Ceylon.
8. ' The learned Special Prosecutors have made reference to various documents which form part of the Annexure to the reference, to show that various fake documents were prepared by the applicant and the other accused persons. They have further submitted that the offence committed by the applicant comes within the purview of white collar crime and the offences committed by the applicant and other co-accused persons are directed against society at large and tend to make the entire nation and the country poorer. They have submitted that such offences are to be treated at entirely different plane. They have maintained that the Hon'ble Supreme Court has laid down guiding principles in this behalf in the case of Imtiaz Ahmed v. The State, PLD 1997 SC 545 para. 7 of the above judgment reads as follows:--
7. I may observe that a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail. Similarly, a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail. In the former cases, the practice to allow bail in cases not falling under prohibitory clause of section 497, Cr.P.C. In the absence of an exceptional circumstance may followed, but in the latter category, the Court should be strict in exercise of discretion of bail. In my view, the above category of the offender belongs to a distinct class and they qualify to be treated falling within an exceptional circumstances of the nature warranting refusal of bail even where maximum sentence is less than 10 years' R.I. For the offence involved provided the Court is satisfied that prima facie, there is material on record to connect the accused concerned with the commission of the offence involved.
9. ' The \Courts should not be oblivious of the fact that at present Pakistan is confronted with many serious problems/difficulties of national and international magnitude, which cannot be resolved unless the whole Pakistani nation as a united entity makes efforts. The desire to amass wealth by illegal means has penetrated in all walks of life. The people commit offences detrimental to the society and the country for money. Some of the holders of the public office commit or facilitate commission of offences for monetary consideration. In the above scenario the Courts approach should be reformat-oriented with the desire to suppress the above mischieves. To achieve the above objective, it is imperative that the Courts should apply strictly the laws which are designed and intended to eradicate the above national evils but at the same time, they are duty bound to ensure that the above approach should not result in miscarriage of justice. It should not be overlooked that Article 9 of our Constitution, which relates to a fundamental right, guarantees life and liberty of every person. Life, inter alia, includes the right to have access to a fair and independent judicial forum for redress. A balance is to be struck between national and individual interest/right.
10. ' They have contended that after a thorough investigation, the prosecution has been able to collect overwhelming evidence against the accused persons including the present applicant and in the light of dictum laid down by the Hon'ble Supreme Court in the judgment cited above, the applicant is not entitled to be released on bail.
11. ' Mr. Abdul Hafeez Lakho, learned counsel for the applicant in reply to the above contentions has submitted that, no doubt the applicant was associated with PSL and RSL and, in performance of his duties as Chief Executive of the above Companies, has signed various documents and has entered into various transactions but none of them amounts to commission of any offence.
12. We have carefully considered the contentions raised by the learned advocates for the parties. It requires no emphasis that the tentative assessment is to be made for the purpose of deciding a bail application and no in-depth appreciation or appraisal of evidence is warranted at this stage.
13. Even otherwise, we would refrain from making any such observation which may cause prejudice to the case of any of the parties at the trial. On a tentative assessment we find that, the learned Special Prosecutors have established that there are sufficient circumstances which require consideration by the trial Court after recording of evidence. They have rightly pointed out that in para. 3 of the bail application it is stated that the applicant worked as Chief Executive of the Company PSL and thereafter joined another Company RSL on 1-3-2000 but he has issued cheques in the sum of Rs,155 Million on behalf of RSL on 13-1-2000 in favour of Union Bank and on 14-2-2000 Board of Directors of RSL authorised the applicant to sign all cheques on behalf of. RSL. They have pointed out, several other documents contending that they were fake and forged documents.
14. ' We are, of the considered opinion that the dictum laid down by the Hon'ble Supreme Court in the case of Imtiaz Ahmed (supra) is fully attracted to the facts and circumstances of the present case and consequently, we are of the opinion that, the applicant is not entitled to be released on bail at this stage. The bail application stands dismissed accordingly.