2017 PLP 408 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned post-arrest bail application, applicant Abdul Qasim has impugned the order dated 20.05.2016, passed by the Court of learned Special Judge Central-I, Karachi, whereby his earlier bail application was declined.

2. Relevant facts spelt out from FIR are that M/s. Ali Four Brothers, through its proprietor Noor Bashir managed fake exports documents in collusion, connivance and abetment of TDAP Officers and others misappropriated and embezzled an amount of Rs.14,521,824/- by availing 25% freight subsidy through fraudulent means under the Trade policy, and thereby caused wrongful loss to the government exchequer and committed offences punishable under sections 409/ 420/468/471/109, P.P.C., read with section 5(2) PCA-II, 1947.

3. Learned counsel for applicant contended that applicant is innocent and has been involved falsely by the Investigating Officer with ulterior motives; that name of the applicant is neither mentioned in FIR nor a specific role have been assigned to him: that in final challan, there are allegations of receiving his share from embezzled amount to the extent of Rs.19,50,000/- for which applicant is ready to furnish a solvent surety before the Court. Learned counsel further emphasized that per final charge sheet, applicant opened an account in the name of his real cousin namely Noor Bashir as proprietor of the firm for which no tangible evidence has been produced by the prosecution. Learned counsel further emphasized that learned trial Court in absence of documentary proof, has wrongly assumed that applicant is a Managing Director of the company M/s Ali Four Brothers; that learned trial has ignored that officials have malafidely involved the applicant after causing extreme torture and obtaining his signatures on various papers, whereas the entire record collected by the prosecution does not reflect his name in trail of money nor in the list of beneficiaries of the allegedly misappropriated amount nor he has any direct concern with the affairs of M/s. Ali Four Brothers, while names TDAP Officials and private persons are mentioned in FIR. Learned counsel further contended that learned trial Court has also failed to appreciate the inordinate delay caused in the lodgment of FIR, which itself is highly doubtful.

4. While controverting the above submission, learned Standing counsel with the assistance of Investigating Officer Shahzad Warsi, has contended that after lodgment of FIR, during investigation applicant was found to be the beneficiary of misappropriated amount; that specimen signatures of applicant were obtained before learned Judicial Magistrate-I, Karachi-South, which have been found similar per report submitted by Examiner of Questioned Documents, FIA Headquarter, Islamabad; that account No.56182-4 was opened on 10.12.2005 in the name of Proprietor Noor Bashir with National Bank of Pakistan, Main Branch, I.I. Chundrigar, Karachi and pay order was deposited/credited in said account; that applicant may be directed to deposit a surety in the sum of Rs.19,50,000/= in cash.

5. Heard arguments advanced by learned counsel for the parties and perused the material available on record, which emanates that there are allegations of misappropriation of amount of Rs.14,521,824/- by Noor Bashir Proprietor of M/s Ali Four Brothers claiming 25% freight subsidiary by managing false documents and said amount was deposited in the account of firm. Admittedly, FIR was lodged on 25.10.2013 and subsequently interim challan was also filed on 11.11.2013, but name of applicant was neither mentioned in FIR nor shown in the array of accused in interim Challan. However, final charge sheet was submitted on 31.12.2014 whereby name of applicant has been mentioned along with other accused persons. Perusal of record reflects that main allegation of embezzlement of subject amount has been leveled against Noor Bashir, Farhan Junejo, Ex-Director, Ministry of Commerce, Faisal Siddique Khan, Mian Mohammad Tariq and Syed Muhammad Hussain. It is further averred that applicant has been allegedly assigned role of opening of fake account in the name of Proprietor Noor Bashir and he was further found to be the beneficiary of misappropriated amount by receiving his share worth Rs.19,50,000/- through fraudulent means by falsification of documents and said amount was transferred into account of present applicant from the account of accused Noor Bashir. Conversely, applicant has denied the allegations of the signatures made by him in the name of Propitiator Noor Bashir, thus transfer of Rs.19,50,000/- in the account of applicant could not be presumed to be the share of misappropriated amount in absence of any tangible evidence supported with solid grounds. The plea agitated by learned Standing Counsel that specimen signatures of applicant obtained during investigation have been found to be similar by Examiner of Questioned Documents, FIA Headquarter, Islamabad, thus to ascertain its authenticity, recording of evidence of prosecution witnesses and examination of relevant documents are essential through the learned trial Court, hence above allegations requires further consideration. It is well settled that while dealing with the question of granting or refusing the bail, Court has only to look into the material available on record to prima facie determine the involvement of accused in the commission of offence or otherwise. It is significant to mention that the honourable Supreme Court in plethora of cases has observed to consider the minimum aspect of the sentence at the bail stage. In the case of Syed Lakhat-e-Hasnain v. The State (2010 SCMR 855), the honourable Supreme Court has observed that the question of granting or refusing bail depends upon particular circumstances of each case. The discretion of grant or refuse of bail under section 497 must be exercised on judicial principle. Bail is always under the discretion of the Court and this discretion is necessarily be exercised upon the facts and circumstances of the offence and the overall attending circumstances, which promoted it to Court to grant or refuse a bail in non-bailable offence.

6. Prosecution has already collected the relevant material which reflects that applicant is not previous convict and final charge sheet has been submitted before the learned trial Court, thus applicant is no more required further for investigation and his further detention will not serve any useful purpose. There is no apprehension of tampering with prosecution evidence as all PWs are officials and the relevant record is in the safe custody of prosecution. The offence under section 409, P.P.C. is punishable for imprisonment for life or imprisonment of other description for 10 years and fine; offences under sections 420 and 468, P.P.C. are punishable up to seven years and fine; offence under section 471, P.P.C. is punishable as per forgery of such document; offence under section 109 P.P.C. is punishable with the same punishment as far as offence abated and offence under section 5(2) of Act-II, 1947 is punishable for 7 years and fine. In view of the peculiar fact and circumstances of instant case, there is no possibility of being awarded of maximum quantum of the sentence to applicant when apparently no direct involvement of applicant is established except the matching or similarity of signatures of applicant to the signatures of main accused Noor Bashir, thus to scan the authenticity of such allegations recording of evidence of prosecution witnesses through learned trial Court is essential.

7. Considering the above facts and circumstances, applicant has succeeded to make out a case for grant of bail on the ground of further inquiry as contemplated in section 497(2), Cr.P.C. Consequently, applicant is admitted to post arrest bail upon furnishing a solvent surety in the sum of Rs.19,50,000/= with PR bond in the like amount to the satisfaction of the learned trial Court. Simultaneously, applicant shall also deposit his original passport in learned trial Court and shall not leave the country without prior permission of the Court.

8. The observations made supra are tentative in nature and learned trial Court shall decide the case strictly on merits. WA/A-158/Sindh Bail granted.