WAHID BUX BROHL J.---Applicant Khurram Shuja has been booked for an offence punishable under sections 408/420/468/471/ 109/34, P.P.C.
2. The case of prosecution is based on the F.I.R. Lodged by S.-I. Rifatullah Khan of F.I.A. CCC Karachi which incorporates an application of Messrs Universal Textile Sarlau Capital DE 280.000 Marseille, France. The text whereof runs:--- ...... ... That the applicant is Proprietor of the Textile International of having its office 710 Business Centre, Mumtaz Hussain Road, Karachi, and also Attornery/Agent of Messrs Universal Textile, 201 Avenue Des Aygalades, 3015 Marseille, France.
2. That Messrs Universal Textiles is carrying a business of Textile goods and entered a purchase contract having No,2/78802/UT/02, dated 14-3-2002 with Messrs World Trading Inct. Through its Managing Director/Chief Executive namely Muhammad Qasim son of not known having its office at CC-151, Defence View, Phase III, Karachi. Phone No,7731003 and 320-5034855.
3. That subsequently a L/C No,21DDCO20104 dated 5-4-2002 was opened in the Bolan Bank Ltd.
Through Credit du Nord. Paris-France alongwith third party documents acceptable as per arrangement.
4. That on 5th April, 2002 the very same day Messrs Image Textile lodged shipment documents of 3.40 foot Container amounting to Euro 81,000.00 through Bolan Bank Limited.
5. That the Messrs Bolan Bank Ltd. Sent a letter No,BBNI/PQK/Exzp/2002 on 11-6-2002 to the EPB for the verification of export certificate having origin No,PK/DE/1/03/005512 for Quota 2002 under category No,09.
6. That Export Promotion Bureau vide its reply dated 15-6-2002 informed clearly to Bolan Bank Ltd.
That Export Licence is forged one and instructed Bolan Bank Ltd. Not to make any payment against such payment. -
7. That in spite of the letter of the Export Promotion Bureau to Bolan Bank with mala fide intention negotiated the document which later on proved forged and this dishonestly, cheating breach of trust committed by the Bolan Bank Ltd. With the collusion of bank instead of following the instruction of Export Promotion Bureau without properly scrutinizing the fake Bill of Lading from Shipping Company negotiated forged documents and claim and also paid Euro 60,750.00 which were subsequently deducted from the importer as per term of L/C., as such with the preplan committed forgery, dishonestly, cheating breach of trust as such liable to be punished under sections 406, 409, 420 and 109/34, P.P.C. And are liable to be punished according to law.
8. That application has executed General Power of Attorney in favour of Abdul Wahid Bandukda son of Haji Ghani, Prop. Textile International having its office at 701. Business Centre, Mumtaz Hussian Road, Karachi, who is unauthorized to conduct and pursue the cases of the applicant at Karachi (Pakistan).
9. That in view of the aforesaid facts and circumstances it is, therefore, requested to lodge FIR.
Against the aforesaid culprits according to law
3. After usual inquiry the applicant was arrested and challaned in the Court.
4. We have heard Mr. Habibur Rahman, learned counsel for applicant and Mr. Khursheed Hashmi, learned D.A.-G.
5. Main contention advanced in support of the bail plea was that the alleged incident does not involve a banking transaction as such the banking Court has no jurisdiction to try the case.
Secondly, the case is of civil nature and the applicant being Manager of the Bank relied on the documents and released 70% of the LC amount but it was not the business of the applicant to enter into verification about the genuineness of the documents and, therefore, his guilt would require further inquiry. Additionally, he argued that the offence does not fall within the prohibitory clause of section 497, Cr.P.C. Learned D.A.-G. Submitted that the offence was committed in connection with the business of the Bank, hence it was a scheduled offence, and the jurisdiction of Special Court was not open to question. He argued that the connivance of applicant is conspicuous from the documents and the statements of witnesses, hence the bail plea cannot be sustained.
6. At the outset it may be mentioned that as per evidence collected during inquiry applicant Khurram Shuja, in capacity of the Manager of Bolan Bank and the exporter Jamshed Ahmed Khan (since absconding) collusively opened a fake account and the LC amount was paid after receiving forged and fake export documents consisting of Bill of Lading etc. Without verifying the documents of export and the particulars of the person, who opened the account. It has also come to surface that the absconding accused Jamshed did not even export the goods and resorted to use of fake and forged documents.
7. Prima facie, it does not appeal to mind that a Manager would open an account introduced by himself without taking steps towards identity of the person and about the particulars of his National Identity Card. The statements of P.Ws. Abdullah Roomi and Moazzam indicate that the applicant knowingly participated in the alleged forgery by way of opening fake account and accepting forged export documents. On the face of it, release of 75% of money on self- introduced opening form is yet to be accounted for by the accused/applicant. Besides, the offence squarely involves banking business and is a scheduled offence, reference may be made to A.
Habib Ahmed v. M.K.G. Scott Charistian PLD 1992 SC 353.
8. The learned trial Court has rightly refrained from entering into deeper appreciation of the evidence in view of the authorities cited by him. On tentative assessment of evidence the bail plea does not merit consideration and is accordingly rejected. However, as already mentioned, the applicant volunteered to deposit the amount involved in the matter within the meaning of Shamraiz Khan's case 2000 SCM R 157 whereupon the following order was passed on 19-8-2003:-- "Mr. Habibur Rahman, learned counsel for applicant and Mr. Khursheed Hashmi, learned D.A.-G. For State have completed their arguments.
For the reasons to be recorded separately the bail plea on merits is rejected. However, learned counsel for applicant, keeping in view the rule laid down in Shamraiz Khan's case 2000 SCM R 157, submitted in the alternative that the applicant would be ready to deposit the amount in question viz. Rs,36,75,375 with the Nazir of this Court within certain timeframe ranging between 7 to 15 days.
Accordingly, instead of dismissing the bail application it is directed that the applicant be released on bail on depositing a sum of Rs,36,75.375 and furnishing surety in the same amount to the satisfaction of the Nazir of this Court within a period of 10 days from today. The amount so deposited will be disbursed in accordance with the order to be passed by the trial Court at the conclusion of the trial. In the meantime the amount. If deposited, should be invested in a profit bearing scheme and the trial Court should also pass an order in respect of disbursement of the profits accrued thereon alongwith the principal amount. The Bail Application stands disposed of in the above terms." These are the reasons for the aforesaid order.