2017 P Cr (PLP)

ABDUL RASOOL MEMON, J.

Bail has been sought on behalf of applicants/accused Muhammad Farid Alam, Muhammad Iqbal and Tariq Adam, who are involved in Case Crime No.27 of 2015 lodged with Police Station FIA Corporate Crime Circle, Karachi under sections 409, 109, 34, P.P.C. read with section 5(2), P.C.A. 1947.

2. The prosecution story, as per interim charge sheet, is that on a source report of Inspector Ali Murad of FIA, CCC, an inquiry was conducted wherein, it revealed that from M/s. Amtex Limited, the Employees Old-age Benefit Institute (EOBI) had purchased on 16.08.2010,11,700,090/- shares at the rate of Rs.19.3716 per share and on 27.08.2010 purchased 5,650,000/- shares at the rate of Rs.19.51 per share total shares 17,350,000/- i.e. for a total purchase price of PKR 337,659,914/-. Later the market value of every share so purchased rapidly came down to Rs.1.99 per scrip (share) on 29.9.2011 whereas, at the time of enquiry, with upward rise, it reached at PKR 2.73 per share, thus, causing a loss of Rs.290 million to EOBI. Consequently, FIR was registered and the crime was investigated wherein, it was found that Zafar Iqbal Gondal, the Chairman and Kanwar Khursheed Wahid, the Director General, Investment of EOBI, in violation of the Employees Old-age Benefits (Investment) Rules, 1979 got the funds of institution invested in a less reputed company namely M/s. Amtex Company, with ulterior motives for illegal gain in collusion with different companies including AKD Securities Limited of which the applicants are the Directors responsible for the transaction as co-accused. They were arrested and the bail application moved on their behalf before Special Judge (Central-II), Karachi stood dismissed on 19.01.2016. Now, the applicants/accused have invoked the jurisdiction of this Court seeking the same relief.

3. I have heard learned counsel Mr. Shahab Sarki for applicant No.1, Mr. Arshad Tayyab Ali for applicants Nos. 2 and 3 and Mr. Salman Talibuddin learned Additional Attorney General of Pakistan, Mr. Nisar Ahmed Tarar learned Special Prosecutor FIA and Mr. Shabbir Ahmed Awan for EOBI, both adopted the submissions of the former.

4. The contentions of learned counsel for applicants are that the offence, as alleged, took place in the month of August, 2010, whereas; the FIR was lodged in the month of December, 2015 with a delay of five years without any plausible and cogent reasons; that the FIR was lodged on the basis of assumptions and presumptions that the M/s. AKD Securities Limited manipulated and prepared false reports relating to Initial Public Offering, listing and underwriting of M/s. Amtex Limited, which in fact, was duly done with the approval of Karachi Stock Exchange and the Security and Exchange Commission of Pakistan (SECP); that the AKD limited simply booked statutory commission along with other underwriters in accord with relevant rules and regulations and that the transaction of purchase of M/s Amtex shares by EOBI management took place through M/s. Foundation Securities Limited and not by AKD limited. Learned counsel placed reliance on cases of Muhammad Boota v. State (2013 PCr.LJ 318), Farkhand Iqbal v. State (2014 PCr.LJ 1223), Ramesh Udeshi v. State (2001 MLD 944), Hussain Haqani v. State (2000 PCr.LJ 161), Ijaz Akhtar v. State (1978 SCMR 64), Saeed Ahmed v. State (1996 SCMR 1132) And Adamjee Insurance Company Ltd. v. Federal Investigation Agency (FIA) (2004 CLD 246).

5. On the other hand, learned Addl: Attorney General of Pakistan while opposing the bail plea of applicants/accused, submitted that the EOBI authorities, such as the Chairman, Director General (Investment) and others while purchasing the shares of M/s Amtex Limited Co. being in collusion with Directors of AKD Securities Ltd, which includes the applicants, violated rule 3(f) of the EOBI (Investment) Rules, 1979. Referring to the said rule, learned Addl: Attorney General pointed out that the same stipulates the conditions for investment in shares in ordinary or preference shares of any such authority or corporation or such of company listed on any Security Commission of Pakistan which has at its credit of earning record of not less than 20% per annum an earning per share and that too for Two Accounting years immediately preceding the year in which the investment is made and that the Co. M/s. Amtex Ltd. lacked in this. To reinforce his submissions further learned Add: Attorney General submitted that the AKD securities limited, according to the relevant prospectus prepared and issued by it, was/is not only mandated to act as the Book Runner and Lead Manager to the issue, it is also one of the Underwriters through whom the trading took place, hence by violating this mandate and relevant rules such as in purchase of shares in question of M/s Amtex Limited Co: was responsible for causing a colossal loss to the EOBI and in this the role and responsibility of the applicants being Directors of AKD Security Limited cannot be excluded. He placed reliance on case of PIA v. Khalid Waheed (1981 SCMR 573). In support, learned Additional Attorney General submitted that applicants, as such, being responsible have rightly been arraigned along with the main accused responsible for the alleged offence falling under section 5(2) of P.C.A., 1947 read with sections 409, 109, 34, P.P.C. to be investigated and triable under the Anti-Corruption Laws. Besides, learned Addl: A.G expressed that AKD Securities Limited while issuing the prospectus not only wrongly stated therein the material facts to the effect that there were/are no legal proceedings pending against the company (M/s. Amtex Limited) and/or the company had/has not initiated any legal proceedings against any party or person, it also made in the prospectus a wrong statement that there were/are no dues (Local or Foreign Currency) on the company or its Directors; although according to him, not only there was/is litigation pending as instituted by the company so also the company happened to be defaulter of Banking Loan. In this regard, learned Additional A.G. referred to a list of cases showing Spl: Customs. Appeal No.162/2001 (M/s. Amtex Limited v. The Customs Excise and Sales Appellate Tribunal) and Spl. Sales and Tax Appeal No.162/2001 (M/s. Amtex Limited v. the Customs Excise and Sales Appellate Tribunal) statedly pending before this Court as well, learned Additional A.G. referred to a letter No.SAM/Corp/16/UI dated 11.01.2016 of Bank of Panjab showing the Company (M/s. Amtex) as loan defaulters on 30.06.2008. Learned Addl: A.G. also referred to statement in the prospectus which showed that the shares allotted to investors, other than the sponsors, would not be saleable for a period of six months from the date of public subscription which as mentioned in the prospectus, as stressed by him, read that it would be open on March 24, 2010 and would close on March 25, 2010; whereas, the learned Additional A.G. submitted that the sales of shares to EOBI, as is evident from the record, took place on 16.08.2010 and 27.08.2010 in violation of what was mentioned in the prospectus, thus, according to him, the main accused and the applicants being Directors of M/s. AKD Limited could not be excluded from criminal liability for acting in collusion with each others. Leaned counsel appeared for State Special Prosecutor FIA and Mr. Shabbir Ahmed Awan for EOBI, adopted the arguments of learned Addl: A.G. In support of his contention, he has placed reliance on the cases of Imtiaz Ahmed v. State (PLD 1997 SC 545), Asif Ayub v. State (2010 SCMR 1735), Abdul Aziz Memon v. State (PLD 2013 SC 594), Murad Usmani v. State (2011, MLD 1202) and Muhammad Hanif S. Kalia v. State (2009 PCr.LJ 1192).

6. I have given due attention to above submissions made before me. I have also, during the course of submission so made in this case, seen the record as referred. There is no denial to the transaction of purchase of M/s. Amtex Ltd. shares by EOBI and the colossal loss of Rs.290 million to the EOBI, on account of decrease in value of the share from Rs.19.50 to Rs.2.73 per share involved in the purchase. Also, there is no denial to the status of the applicants being Directors of AKD Security Ltd, the preparation of the Research Report and issuance of prospectus by AKD Ltd. The submissions of learned D.A.G. with reference to the relevant documents placed before me as find place in the preceding para have also not been controverted. Tentatively stated the record also does not negate the views expressed by learned Addl: Attorney General. Learned Addl: Attorney General viewed in his submission that the criminal involvement of applicants/accused came on surface during the course of inquiry preceding the FIR, hence the question raised about the delay became per se redundant. Be that as it may, the effect of lodgement of FIR with delay or otherwise is to be seen at the trial. In this regard, reliance is placed on the case of Qurban Ali v. State (PLD 2014 Sindh 538). Admittedly, the investigation is still in progress. The offence falling under section 409, P.P.C. as alleged against the applicants/accused is punishable for life imprisonment. I have gone through the case law cited by learned counsel for the applicants and the same do not appear to be of assistance to the applicants/accused. Therefore considering, what has been stated hereinbefore at this stage, I do not feel incline to accept bail plea and release the applicants/accused. This application is accordingly dismissed. ZC/M-93/Sindh Bail refused.