ASIF SAEED KHAN KHOSA, J.--Through this petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan 1972. Accountability Bureau which is presently pending before the learned Judge, Accountability Court No,IV, Lahore and has also sought a declaration that the petitioner's detention in connection with the said Reference is without lawful authority and of no legal effect. At the outset the learned counsel for the petitioner has submitted that the present petition may be treated as a petition for bail for the petitioner in the said. Reference.
2. The petitioner was arrested in connection with the above mentioned Reference on 3-7-2002.
After the petitioner's arrest in connection with the allegations contained in the said Reference physical remand of the petitioner was granted by the learned Judge, Accountability Court from time to time and finally a formal Reference was filed by the National Accountability Bureau against the petitioner. And his co-accused on 9-10-2002. According to the said Reference the prosecution is relying upon 53 witnesses so as to prove its allegations against the petitioner and his co- accused. We have been informed that so far no formal charge has been framed by the learned trial Court against the petitioner or his co-accused and, therefore, a trial on the basis of the said Reference is yet to commence. The allegations levelled against the petitioner and his co-accused in the said Reference are as follows: "(1) That Messrs Khyber Tractors (Pvt.) Ltd. (K.T.L) was established under Companies Ordinance, 1984 on 13-4-1991 with ten shareholders. Authorized capital of the company was Rs,35 million divided into 3,50,000 ordinary shares of Rs,100 each.. The object of the Company as mentioned in memorandum of association was to set up an industrial enterprise to carry out the business of manufacturing and assembling of tractors, tractor parts and all other functions related to this object. Accused Khalid Sharif was its active Director and accused Mansoor Alam Khan and Hammad Khalid were Chief Executive and Business Development Manager respectively. Accused Asif Sharif was Chief Executive of Messrs K.T.L. And resigned in 1991 but he continued to draw pay and other benefits as Director and was actively dealing with the affairs of the Company.
(2) That in June, 1996, Awami Tractor Scheme Phase-II (ATS-II) was launched. Government of Pakistan decided that the importers would raise their own funds through banking and non-banking sectors, Same concessions of exemption of excise duty and sales tax, etc. Were allowed to importers under ATS-II as were given to A.D.B.P. Under ATS-I, provided that letters of credit L.C. For import of tractors were established in banks before 30th June, 1996. L.Cs. Opened after 30th June, 1996 were subject to 18% sales tax. Government allowed certain firms including Messrs.' K.T.L. To important tractors of various brands from Poland.
(3) That on receipt of information that accused indulged in corruption and corrupt practices in not supplying tractors to prospective buyers, an investigation was authorized and L.O. NAB has submitted his final report.
(4) That investigation report shows. That Messrs K.T.L. Advertised booking of Ursus-2812 tractors in national dailies at the price of Rs,2,30,000 per tractor with deposit of Rs,70,000 as advance and the remaining amount Rs,1,60,000 was to be paid at the time of delivery. General public was attracted because of comparatively low prices of tractors and people started depositing bank drafts of Rs,70,000 in the name of Messrs K.T.L. Some people also made cash payments.
(5) That more than 1430 people booked tractors with Messrs K.T.L. And an amount of Rs,27,51,582 was deposited in branches of National Bank of Pakistan, Muslim Commercial Bank, Indus Bank Ltd., Egerton Road Branch, Lahore and Prudential Commercial Bank, Lahore. In all 753 tractors were imported from Poland, 563 tractors were delivered and 10 tractors were sold out/exported to Bangladesh and 180 tractors were stranded at Karachi Port Trust. (180 tractors have now been auctioned by Customs Authorities).
(6) That more than 740 applicants who booked the tractors with Messrs K.T.L., Lahore were neither given any tractor nor the amounts deposited by them were returned to them. More than 80 people had deposited Rs,2,30,000 each or more but none of them received any tractor or refund of the deposited amount. Messrs K.T.L. Had to pay Rs,84 million to these applicants who are running from pillar to post for last six years for the recovery of their amounts..
(7) That amount of Rs,84 million has been converted by the accused under cover of the title of Messrs Khyber Tractors for their own use and during investigation. They failed to justify the use of public money. Criminal, dishonest and fraudulent intent of the accused in conversion of the amount of general public for their own use can be gathered from following instances:
(a) Accused received consignment of 60 tractors in December, 1996 against L.C. No,0372-040-015 of National Bank of Pakistan, Model Town Branch, Lahore. Accused dishonestly and fraudulently sold 49 tractors of the said lot in the open market. Ten tractors were exported to Bangladesh and its sale amount was not credited in Cash Finance Account C.F-II, N.B.P. Model Town Branch, Lahore,, 49 tractors were not delivered to the people who had paid full amount to the Company.
(b) Cash finance limit of Rs,20 million was obtained by Messrs K.T.L. From National Bank of Pakistan, Model Town Branch, Lahore prior to the Launching of Awami Tractor Scheme, Phase-II, The cash finance limit of Rs,20 million was sanctioned by National Bank of Pakistan on 27-7-1992. Limit was renewed after every year on the payment of mark-up. As on 20-6-1996, there was overdraft of Rs,81,55,579 in A/C No,CF-II of N.B.P., Model Town Branch, Lahore. An amount of Rs,1,54,20,515 received from customers against booking of tractors, were deposited in this account during 20-6- 1996 to 22-8-1996 causing credit balance of Rs,72,64,936. During the aforesaid period. Rs,74,33,067 were withdrawn from the account. An amount of Rs,32,85,795 were spent for opening of L.C. And the remaining amount, i,e, Rs,32,91,757 (excluding Rs,85,515 of each margin released by bank) was spent to clear previous liabilities. The overdraft of the company on 2-8-1996 was Rs,1,68,131 causing an overall decrease in overdraft to the tune of Rs,79,87,448. In this way, an amount of Rs,1,12,79,205 (Rs,79,87,448 + Rs,32,91,757) was misused and spent on clearing the previous liabilities.
(c) The project Khyber Tractors was financed by Industrial Development Bank of Pakistan, Davis Road Branch, Lahore. I.D.B.P. Sanctioned a loan of Rs,16.8 million for the project on 29-6-1991. I.D.B.P.
Disbursed Rs,15.316 million to Messrs K.T.L., Lahore. Loan had to be repaid in 16 equal installments of Rs,13,41,602.62. Accused got adjusted Rs,26,38,126 into the account of I.D.B.P. During financial year 1996-97 from the deposits of general public. An amount of Rs,21,34,063 was also paid on 26-6-1996 to Industrial Development Bank of Pakistan to clear previous liabilities from the deposits of the customers.
(d) Accused have declared loss to the Company in the Income Tax Returns submitted to Income Tax Department for the year 1996-97 but it is astonishing to note that during the period from 20-6- 1996 to 30-11-1998, an amount of Rs,1,74,24,019 of public was spent on administrative expenses.
(e) Amount of Rs,15,22,397 from the public money was spent on the purchase of vehicles, air- conditioners and other office equipment.
(f) Accused Asif Sharif established a trading firm in the name of Sirgroh Holding. An amount of Rs,69,68,399 was fraudulently advanced from the account of Messrs K.T.L., Lahore (deposits of general public) to Sirgroh Holding from 20-6-1996 to 30-11-1998, in violation of provisions of Companies Ordinance, 1984. Sirgroh Holding is still operating though with different name of KentaxSirgroh (Pvt.) Ltd., Lahore and accused Hammad Khalid son of Khalid Sharif is Chief Executive of the company.
(g) Accused Asif Sharif converted and misused Rs,39,51,307 of the general public for his own luxuries and purchased a Mercedes Car as well as paid rent of his residential House No,68-C, Model Town, Lahore, out of this amount.
(8) That Messrs K.T.L., Lahore was established on 13-4-1991 and accused Asif Sharif was appointed as Chief Executive. As per record of Securities Exchange Commission of Pakistan, he resigned from the post of Chief Executive on 30-12-1991 and his name never appeared in the list of Directors afterwards, but the Income Tax Record shows that accused Asif Sharif had been drawing pay and other benefits as Director alongwith accused Khalid Sharif and Mansoor Alam Khan. Accused Asif Sharif participated in all meetings pertaining to launching of Awami Tractors Scheme and signed agreements in this regard as representative of Messrs K.T.L., Lahore. Employees of the Company have also stated that accused Asif Sharif may not be a Director on paper but he was definitely controlling the affairs of the company. Accused Khalid Sharif was appointed Director of the Company since its inception and remained so till 1999. All the accounts of Khyber Tractors in different banks were opened under his signatures. He signed Letters of Credit opening application forms relating to Awami Tractors Scheme, Phase-II. Accused Mansoor Alam Khan was appointed Chief Executive of the Company after the resignation of accused Asif Sharif and he is still the Chief Executive of the Company. Accused Hammad Khalid was employed as Business Development Manager, Messrs K.T.L., in 1995 but he was practically incharge of financial matters of the company and all the financial transactions used to take place after his approval. Almost all the cheques drawn from the banks during the years 1996 to 1998 bear the signatures of accused Hammad Khalid.
(9) That accused in connivance and collaboration with each other cheated the members of the public at large scale of an amount of Rs,84 million and committed criminal breach of trust and thus by corrupt, dishonest and illegal means obtained for themselves pecuniary advantage.
Accused thereby committed the offence of corruption and corrupt practices as defined under section 9(a), punishable under section 10 of NAB Ordinance, 1999 and Schedule thereto.
3. In support of the- present petition the learned counsel for the petitioner has argued that the petitioner was neither a Director nor a share holder of Messrs Khyber Tractors (Pvt.) Ltd. (hereinafter to be referred to as KTL) and. Thus, he had nothing to do with the affairs of the said Company as by virtue of the provisions of section 196 of the Companies Ordinance. 1984 a Company is run and controlled by its Directors. He has also argued that the petitioner was merely a Business Development Manager and an authorized signatory for the purpose of issuing cheques for the company and, thus, the petitioner cannot be tried under the National Accountability Ordinance.
1999 as he was not covered by the definition of "person" contained in section 5(o) of the said Ordinance. The learned counsel for the petitioner has placed reliant in this regard upon the case of Mst.Fehmida Begum v. Federation of Pakistan through Secretary, Federal Secretariat, Islamabad and 6 others (PLD 2000 Lahore 602). It has also been argued that the allegations levelled against the petitioner are vague and the same do not constitute any offence under section 9 of the National Accountability Bureau Ordinance, 1999. He has further maintained that the petitioner has already spent more than five months in jail in connection with this case and his trial has not even commenced as yet. It has lastly been contended that the petitioner had nothing to do with the handling of finances of KTL and the prosecution is not possessed of any evidence to establish that any amount of money was 'transferred by the said Company in favour of the petitioner or in favour of any Company or Partnership Firm owned or controlled by the petitioner. It has, thus, been prayed that the petitioner may be admitted to bail till the conclusion of his trial before the learned Trial Court. This petition has vehemently been opposed by the learned Deputy Prosecutor-General of the National Accountability Bureau who has referred to various pieces of evidence available with the prosecution to establish as to how a huge amount of money received by KTL from the general public had been siphoned off to various other Companies or Partnership Firms and how the petitioner played a key role in the whole affair. He has, therefore, maintained that prima facie sufficient grounds exist to believe in the petitioner's involvement in the alleged offence and, thus, he is not entitled to be admitted to bail.
4. We have heard the learned counsel for the parties at some length and have gone through the record of investigation of this case with their assistance.
5. It may be mentioned at the outset that the investigation of this case against the petitioner and his co-accused had been taken up by the National Accountability Bureau upon an initiative of this Court when the allegations against the petitioner and his co-accused had been highlighted before this Court in the case of Muhammad Yousuf and others v. Government of Pakistan and others (2001 CLC 1544) and the said allegations pertained to misappropriation of a huge amount of money deposited with KTL by numerous innocent citizens for purchase of tractors. It is not disputed that at least 740 of such persons have so far failed to receive any tractor and most of the amount deposited by such persons remains unaccounted for. It may be true that the petitioner was neither a Director nor a shareholder of the above mentioned Company but at the same time it is equally true that the petitioner was not only a son of a principal Director of the said Company but he was also the Business Development Manager of that Company and an authorized signatory for the purpose of issuing cheques on behalf of the said Company. It is not denied before us that the petitioner, alongwith his co-authorized signatory of the Company namely Irshad, had all along been issuing cheques on behalf of the said Company and had, thus, been handling the said Company's cash. The Investigating Officer of this case had collected material to show that the petitioner was the Business Development Manager of the said Company since 1995, he was practically incharge of the financial matters of the Company and all the financial transactions used to take place after his approval. Almost all the cheques drawn from different banks during the period 1996-98 bear the petitioner's signatures. The learned Deputy Prosecutor-General has taken us through various documents available on the record of investigation to show as to how the finances of KTL had been siphoned off to Sirgroh Holding and then to Kentax Sirgroh (Pvt.) Ltd. Of which the present petitioner is the Chief Executive. In view of availability of such material and keeping in view such de facto control of the petitioner over the finances of KTL we are prima facie of the view that the petitioner can well be termed as a "person" for the purpose of the provisions of section 5(o) of the National Accountability Bureau Ordinance, 1999 and can, thus, be tried for the allegations levelled by the prosecution. In the account book of KTL maintained for the year 1996-97 Sirgroh has been described as an "associated undertaking" of KTL and transfer of funds belonging to KTL in favour of Sirgroh and then in favour of Sirgroh Holding and ultimately in favour of Kentax Sirgroh (Pvt.) Ltd. (of which the petitioner is the Chief Executive) is prima facie borne out from the record of investigation. Apparently millions of Rupees belonging to KTL had ended up in the coffers of Kentax Sirgroh (Pvt.) Ltd. Of which the petitioner is the Chief Executive and it has not been shown before us even tentatively as to from which other source the petitioner had generated that amount of money for the said business concern of his. If the above mentioned facts are ultimately conclusively proved before the learned trial Court then this exercise of transfer of KTL's funds for the use of the petitioner and his co-accused would be established as an ingenious device or a wicked stratagem for achieving conversion of assets and siphoning off of funds of KTL and the petitioner may then deserve his credit (or discredit) in that regard for being a key player in the whole affair or for at least being privy to the same. We have consciously refrained from referring to different pieces of evidence relied upon by the learned Deputy Prosecutor-General in this regard lest it may prejudice the learned trial Court but we have surely felt satisfied that the prosecution is possessed of sufficient material at this stage to prima facie connect the petitioner with the alleged misappropriation. In that backdrop we have not found the delay in holding the petitioner's trial to be unconscionable or to be sufficient by itself for admitting the petitioner to bail at such a stage. It may also be added here that a co-accused of the petitioner namely Mansoor Alam Khan is still a fugitive from law and the petitioner's release on bail at this stage may adversely affect the prosecution's efforts to prosecute those who have already been arrested in this case so far.
6. For what has been discussed above prima facie reasonable grounds do exist to believe in the petitioner's involvement in the alleged offence and, thus, his custody in connection with this case can neither be termed as illegal or improper for the purposes of maintaining a petition in the nature of habeas corpus nor such custody can be declared to be without lawful authority and of no legal effect for the purposes of maintaining a writ of certiorari under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. This petition is, therefore, dismissed with no order as to costs.