1985 P Cr (PLP)

‑‑‑S. 5(6)‑‑Penal Code (XLV‑ of 1860), S.467‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Criminal Procedure Code (V of 1898), Ss.497 & 540‑‑Bail‑‑Prosecution filing application under 5.540, Cr.P.C. for summoning two witnesses alongwith record, including alleged Bank guarantee which accused unauthorisedly issued‑‑Such application, held, amounted to an admission by prosecution, that on evidence, at present available on judicial file, there was no reasonable ground to believe that accused had committed any scheduled offence but there was sufficient ground for further enquiry‑‑Bail granted to accused in circumstances. Sanaullah Bajwa for Petitioner. Saeed‑uz‑Zafar, Special Prosecutor for the State: This is second application for grant of bail by accused Muhammad lqbal, the first one (B.A. 392 of 1984) having been dismissed by my order, dated 15‑12‑1984.

2. The facts of the case are that the accused‑petitioner while acting as Manager Eminabad Mor Branch of N.B.P., Gujranwala, issued a bank guarantee for a sum of Rs.2,24,000 in favour of WASA at the instance of Zeb & Co., who were contractors and had received a contract from WASA for execution of a work. The said guarantee was meant to ensure the due execution of the work of the said contract, failing which the said sum of the guarantee was to be paid to WASA by the said branch of the N. B. P. It is stated that the said contractor failed to execute the work and the bank guarantee was presented to the bank for encashment and the bank was constrained to pay Rs.1,59,000 to WASA on the basis of the said guarantee.

3. The charge against the petitioner is that he issued the bank guarantee without any authority whatsoever vesting in him to do so on behalf of N.B.P. and even without receiving any consideration or even any margin of money for the sum of the said guarantee. He did not enter it in the record of the bank either.

4. By this time statements of all the prosecution witnesses listed in the calendar of witnesses have, been recorded except that of the investigating officer who is not expected to give any evidence on the merits of the prosecution case. In respect of the actual allegation against the accused, the only witness who has appeared in evidence is Muhammad Saleem. The other witnesses are only of formal nature. The said Muhammad Saleem had stated in his statement that he had found that the accused had at the instance of Zeb and Co. issued a bank guarantee in favour of WASA in the sum of Rs.2,24,000 without taking or receiving any amount or any margin whatsoever from the said contractors and that he had no authority to issue this bank guarantee even on receiving an equivalent amount and that the bank had paid the sum of Rs.1,59,000 on the basis of this guarantee. It is, however, significant that instructions of the bank in regard to the absence of any power vesting in ,the accused Manager to issue a guarantee have not so far been brought on the record of this case although a schedule of powers of officer of N . B . P . exists and printed copy thereof had been produced before me for my perusal on 15‑12‑1984 as shown by my order of the said date. Thus, the best evidence in the matter has so far been withheld by the prosecution from the view of the Court in this case. Even the original guarantee which is the basis of the prosecution of the accused in this case has not been put evidence up to this time. To crown all the original cheque/credit voucher by virtue of which the sum of Ks.1,59,000 had to be paid to WASA by the bank has not been produced yet. The evidence on record does not, therefore, at this stage, appear to me to be sufficient to connect the accused‑petitioner conclusively, with the commission of any scheduled offence. The prohibition contained in subsection (6) of section 5 of Offences in Respect of Banks (Special Court) Ordinance, 1984, therefore, does not stand attracted to the case in hand to disentitle the petitioner to grant of concession of bail in this case.

5. In any way, the circumstance that the prosecution has filed an application under section 540, Cr.P.C. for summoning two witnesses alongwith record, including the said guarantee, amounts to an admission on the part of prosecution that on the evidence, at present available on the judicial file, there is no reasonable ground to believe that he has committed any scheduled offence but there is sufficient ground for further enquiry into his guilt. For the foregoing reasons, under subsection(2) of section 497, Cr.P.C. I allow the accused‑petitioner bail in the sum of Rs.5,00,000 (Rupees five lacs) with one surety in the like amount to the satisfaction of the Registrar of this Court. M.B.A. Bail granted.