2012 PLP 1691 (SCMR)

AMIR HANI MUSLIM, J.

Through these petitions, petitioner has impugned the orders of the learned High Court of Sindh passed in Criminal Bail Applications Nos.1171 of 2011 and 1308 of 2011, by which it has granted the bail applications of Muhammad Murad Ali Usmani, respondent in Criminal Petition No.11-K of 2012 and Syed Hassan Haider Zaidi, respondent in Criminal Petition No.15-K of 2012. By this common order we intend to dispose of both the aforesaid criminal petitions.

2. It is contended by the learned counsel for the petitioner/complainant that the High Court of Sindh has wrongly granted bail to the respondents in the aforesaid two petitions, overlooking the fact that both of them had approached the learned High Court twice for grant of bail and their bail applications were dismissed. The respondents, however, were granted bail for the third time in the proceedings in deviation of the earlier view formed by the High Court against the respondents.

3. He next contended that respondents are officers in Bank Al-Falah and by device used to sanction Auto Loans in fictitious names and thereafter they use to pocket the loan amount. According to him on his complaint the FIA after inquiry investigated the matter and submitted challan against the respondents. The respondents were assigned specific role by the FIA in the challan. He next contended that respondents have been granted bail, overlooking the material collected by the investigating authority. It was also contended by the learned counsel for the petitioner/complainant that the FIA has surfaced fraud of crores of rupees against the respondents.

4. As against this, Mr. Rasheed A. Razvi, learned counsel for respondent No.2 in Criminal Petition No.15-K of 2012 has contended that the respondent was arrested and after investigation he was remanded to judicial custody. No recovery has been effected from him. According to him initially respondent No.2 was cited as witness in the F.I.R., but subsequently in supplementary challan, he was joined as an accused. He further contended that the job description of the respondent was confined to the management of the Bank and preparation of the loan papers was not part of his duty. According to him he was one of the Members of the Loan Committee. He submits that no recovery has been made from the respondent nor any direct incriminating evidence has been collected by the investigating authority, which could establish that he misappropriated the loan amount sanctioned by him as Member of Loan Committee.

5. The learned D.A.-G. supported the impugned orders of the learned High Court. We have also heard the Investigating Officer, who was present in Court with police papers.

6. In the first place, it is an established law that if a witness is transposed as accused in a criminal proceedings, a case of further inquiry is made out. The respondent Syed Hassan Haider Rizvi initially was neither nominated in the F.I.R. nor his name has appeared as accused in the first challan submitted by the FIA. In further investigation he was transposed as accused. This by itself was a sufficient ground to grant bail to him as in such like situation, a case of further inquiry is made out. Additionally, the repeating of bail application on the ground of fresh supplementary challan is permissible, as further material is collected in the supplementary challan, which might lead the Court to form a different opinion than the one formed earlier.

7. The Investigating Officer has conceded that he could not collect direct evidence either against Syed Hassan Haider Rizvi or Muhammad Murad Ali Usmani to establish that they were beneficiaries of the amount, which was paid towards loan.

8. The learned High Court of Sindh after examining the material has granted the bail in its discretion and the case of the petitioner does not attracts the provisions of section 497(5), Cr.P.C. for cancellation of bail. If an order of the nature is passed in exercise of discretion, this Court will not intervene unless it is shown that gross injustice has been done. We, after examining the material, are of the view that in both the matters, a case of further inquiry was made out and the learned High Court was competent to grant bail.

9. For the aforesaid reasons, these petitions are dismissed and leave refused. MWA/M-48/SC Petitions dismissed.