2017 PLP 1957 (MLD)

ISHTIAQ IBRAHIM, J.

Petitioner Muhammad Bilal Anwar Shakir seeks his release on bail in case FIR No.123 dated 15.11.2016 under sections 409/419/420/468/471, P.P.C. read with 4, 8/23 FER Act, 1947 of Police Station, FIA/CBC, Peshawar.

2. Brief but necessary facts for disposal of this bail petition are Khalid Abdul Aziz, Head Banking Operations Bank of Khyber made a complaint stating that an amount of Rs. 20.00 million has been transferred fraudulently from the BOK Treasury to the United Bank Limited Gul Centre Branch Haiderabad in Account No.0112053601418136 of M/s. Shaheen Corporation through (RTGS) by email purportedly generated from ID of Ahmad Naveed, Manager Operation BOK, Charsadda Road Branch Peshawar. The holder of the above account namely Qamar Zaman on request transferred an amount of Rs.1.45 million, Rs.01 million and Rs.55 million to the account of Almas Jovindah Account No.0331000111056009 Faisal Bank Upper Mall Branch Lahore on 19.4.2016, 20.4.2016 and 21.4.2016, an amount of Rs.16.9 million through RTGS to account of Muhammad Aslam No.0023457913455403 HBL Bahria Town Lahore. Muhammad Aslam transferred Rs.01 million to account Muhammad Bilal Anwar Shakir (present petitioner) on 20.4.2016 and encashed Rs.02 million, Rs.08 million, Rs.01 million and Rs.4.7 million on 19.4.2016 to 22.4.2016. According to the findings of the inquiry, Almas Jovindah requested his friend Qamar Zaman to transfer the amount to his account and account of Muhammad Aslam. Muhammad Aslam on the request of his friend Muhammad Bilal Anwar Shakir handed over the aforementioned encashed amount of Rs. 15.7 million to the present petitioner who further handed over the same to his friend Muhammad Azeem. The findings were that Mr. Almas Jovindah along with the present petitioner Muhammad Bilal Anwar Shakir used account of their friend Qamar Zaman with the active connivance of BOK officials for the fraudulent transfer of amount of Rs.20 million to their account and received the said amount vide bank transfer (RTGS) cheques and cash. Hence the present FIR.

3. Perusal of record would show that Mr. Muhtasham Zaheer and Suhail Iqbal treasury Back Officer Karachi had received an e-mail from I.D. of Mr. Ahmad Naveed Manager Operation (ahmad.naveed@bok.com.pk) on 13.4.2016 with request to execute RTGS of Rs.20 million in favour of Messrs Shaheen Corporation having account No.0112053601418136 at UBL Gul Center Branch Hyderabad with a copy to Mr. Faiq Hussain and Shamshad Jamil, Treasury Back Office but no copy of email was sent to Branch Manager. The email was supported by scanned copy of account holder RTGS application for Rs.20 million signed by Mr. Ahmad Naveed PP No. 500 and Mr. Yasir Shahzad GBO PP No.1662 RTGS team at Treasury Division Karachi executed the transaction of Rs. 20 million to SBP and UBL on 13.4.2016. After the transfer of fund, the treasury back office received HO reconciliation sheets up to 14.5.2016 showing entry of Rs. 20 million as outstanding. Therefore the transfer through RTGS, cheque and money link was in violation of the Defined Procedure of Banking Laws and RTGS, therefore, fraud was committed.

4. During the inquiry, the only evidence collected by the prosecution is that Rs. one (01 million) was transferred from the account of co-accused Muhammad Aslam to the account of the petitioner. It would be seen at the trial whether the abovementioned transfer was for the reason that accused was privy to the offence or it was some bona fide transaction between the co-accused Muhammad Aslam and present petitioner. Record further depicts that there is statement of accused petitioner recorded under section 164, Cr.P.C. but it is not clear that whether the said statement under section 164, Cr.P.C. has been recorded as accused or as witness, if his statement would have been recorded as an accused, then the provisions of section 364, Cr.P.C. should also have been taken into consideration.

5. Admittedly petitioner is not a public servant, clerk or agent, applicability of section 409, P.P.C. would be seen at trial, while the rest of sections do not fall within the prohibitory clause of section 497, Cr.P.C. The case of prosecution rests on documentary evidence which is in the possession of the prosecution. Wisdom is derived from 1996 SCMR 1132 "Saeed Ahmad v. The State". So far as the reference of counsel for the respondent/bank to the statement of accused petitioner and co-accused recorded by police under section 161, Cr.P.C. is concerned, this court is of the opinion the same cannot be relied upon even at bail stage. Reliance in this regard is placed on 2013 SCMR 699 "Hakim Khan v. The State" and 2001 SCMR-14 "The State v. Syed Abdul Qayum. At the moment, in view of the facts and circumstances of the case, the case of petitioner needs further inquiry.

6. In view of what has been discussed above, the instant bail application is allowed and accused petitioners Muhammad Bilal Anwar Shakir is admitted to bail provided he furnishes bail bonds in the sum of Rs.01 Million (ten lacs) with two sureties each in the like to the satisfaction of Illaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.

7. Needless to mention that the above findings are only for the purpose of bail petition in hand and shall in no way influence the trial court during trial.

8. Above are the reasons for my short order even dated. WA/241/P Bail granted.