2012 PLP 537 (MLD)

SALMAN HAMID, J.

The embryo of the present bail application goes back to Inquiry No.1 of 2010 which gave rise to the filing of first information report under section 154 Criminal Procedure Code 1898 bearing No.20 of 2011 at Police Station FIA, Crime Circle, Karachi, under sections 409, 417, 420, 468, 471, 109 and 34 of the Pakistan Penal Code 1860. Shahid Perwez, son of Abdul Latif, (the applicant) moved the very first bail application before the Special Court (Offences in Banks) Sindh, Karachi, (Trial Court) in Case No.33 of 2011, which bail application was dismissed by the Trial Court on 21-4-2011. Bail Application No.504 of 2011 was, thereafter, moved before this Court by the applicant, which too was dismissed in terms of Order dated 28-4-2011. During the course of Bail Application No.504 of 2011 before this Court, a copy of the Challan was produced, on which basis, it seems that second bail application was moved by the applicant before the Trial Court, purportedly on new and fresh grounds which were not the subject-matter of the first bail application before the Trial Court. However, yet again, second bail application was dismissed by the Trial Court on 4-6-2011. The applicant again, after dismissal of second bail application by the Trial Court, filed Bail Application No.709 of 2011 before this Court. This too was dismissed by this Court on 11-7-2011. It would be seen that the present Bail Application No.813 of 2011 is the fifth one in a row, if two bail applications before the Trial Court and the two bail applications before this Court are counted in; and third if only two previous bail applications moved by the applicant before this Court are taken in to account.

2. The urging for making the instant Bail Application before this Court was that while dismissing Bail Application No.504 of 2011, it was observed, "Had it been a case of a single transaction, the applicants could have been entitled to the benefit of Shamraiz Khan's as well as Tariq Bashir's case (supra); it is a case where it is alleged that there [are] dozens and hundreds of such transactions. Investigating Officer present in court showed us Account Statement of one account in each branch being operated in the names of wife/relatives of employee in branch which account was being used for servicing of hundreds of such loan applications." Therefore the main thrust of the learned counsel for the applicant was that since (according to him) the interim charge sheet mentions the applicant connected, at best, with only a couple of Auto Finances; the liability whereof comes to Rs.2,073,497, which amount the applicant is ready and willing to deposit, the benefit of Shamraiz Khan's case (2000 SCMR 157) be extended to him. In support of his contentions, besides the case of Shamraiz Khan, the learned counsel for the applicant also relied upon the following cases:-- (1) Jameel A. Durrani v. The State (PLD 2003 Karachi 393) (2) Muhammad Akram Nadeem v. The State (2008 YLR 735 Karachi) (3) Gulzar Hussain Shah v. Ghulam Murtaza and others (PLD 1970 SC 335) (4) Khurram Shuja v. The State (PLD 2004 Karachi 315) (5) M. Kokab Shahabuddin Ahmed v. The State 2008 YLR 816 (6) Imran-ul-Haq v. The State (2007 MLD 1477 Lahore) (7) Tariq Hashmi v. The State 2010 YLR 563 (8) Shafique Ahmed v. The State (2004 PCr.LJ 846 Karachi) (9) Muhammad Saeed Mehdi v. The State (2002 SCMR 282) (10) Zulfiqar Ali v. The State (2008 YLR 2229 Karachi)

3. In addition to these reported precedents, unreported cases were also relied upon by the learned counsel for the applicant which were Minhon Khan Chandio v. The NAB (C.P. No.1058 of 2011), Abdul Karim v. The State (Bail Application 1059 of 2004), Muhammad Faisal and others v. The State (Bail Application No.1338 of 2010), Muhammad Tariq Ikram v. The State (Bail Application No.678 of 2009), Muhammad Rashid Unnar Huzoor Bux, Shaikh v. The State (C.Ps. Nos.476-K of 2008 and 123-K of 2009), Amir Siddiqui v. The State (Bail Application No. 851 of 2011)

4. Bail Application was resisted by the learned counsel for the complainant. It was asserted that there are a series of fake Auto Finance with documentary evidence, showing the names of the persons whose names were used without their knowledge and the finances were sanctioned. Basing on this, it was contended that applicant's assertion that only a couple of cases could be, at best, associated with him was nothing but a mirage. It was also vehemently argued that the benefit of Shamraiz Khan's case cannot be extended inasmuch as that during the course of Bail Application No.504 of 2011 and going through the interim challan therein, the argument raised herein was brought-up which was not appreciated by this Court and the Bail Application was dismissed. It was also asserted that the applicant after dismissal of the Bail Application No.504 of 2011, approached the Trial Court once again and getting no relief therefrom, filed Bail Application No.709 of 2011, before this Court but to no avail, in none of which the benefit of Shamraiz Khan's case was claimed. It was pointed out that in paragraph 6 of the present Bail Application (under the head of Facts) it is categorically mentioned that the applicant counsel attempted to argue on merits (yet again) and also on the ground of Shamraiz Khan's case but he was allegedly shun down by this Court explicitly shows noting but futile exercise and levelling of uncalled for allegations. Fortifying, it was implored that the face of the present Bail Application, save paragraph 6, mentioned above, is exactly the same as that of Bail Application No.709 of 2011 and therefore it is evident that ground of Shamraiz Khan was not raised at all. Learned counsel for the complainant relied upon the case of the State v. Zubair and others (PLD 1986 SC 173) to contend that second or the subsequent bail application to the same Court would lie only on a fresh ground which did not exist at the time when the first application was made. This was not the case here. Erudite Deputy Attorney General supported the arguments of learned counsel for the complainant with addition that the second Bail Application (709 of 2011) was dismissed by a Division Bench of this Court with direction to the Trial Court to conclude the trial within three months which period till date has not expired and that no new ground was available and/or the ground of Shamraiz's case for preferring the present Bail Application.

5. We have heard the arguments of the learned counsel; gone through the record and the case-law cited. Order dated 11-7-2011, passed in Bail Application 709 of 2011, moved by the applicant before this Bail Application would evidently show that in paragraph 14 it was observed that, "The scope of entertaining the subsequent or second bail application has already been dealt with by the Hon'ble Supreme Court of Pakistan in the case, of the State v. Zubair and others (PLD 1986 SC 173) and perceiving as much in paragraph 15 of the Order under point it was held that, "Following the dicta laid down by the Hon'ble Supreme Court of Pakistan in the above referred judgment [Zubair's case], we do not find any merit in the present bail application and the same is accordingly dismissed as no fresh or new ground was brought to our notice during the arguments by the learned counsel for the applicant except reference to documents filed by him along with the bail application." These reflections, show that no new ground was raised. It further shows that even if the benefit of Shamraiz Khan's was asserted for the first time in Bail Application No.709 of 2011 (as alleged by the applicant), such was not considered and/or appreciated by the Division Bench of this Court, keeping in view the dicta laid down by the apex court in Zubair's case, wherein it was held that. "It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent bail application. We may also point out, with respect to the learned Judge, who dealt with the second bail application that the mere fact that the learned Judge who had rejected the first bail application of the respondents with the observation that as far as the remaining petitioners (the respondents herein) are concerned no case had been made out for their release on bail does not mean that the application had not been disposed of on merits. It must be assumed that he had considered all the pleas or grounds raised by the applicant's counsel before him and that the same had not found favour with him. It may be pointed out, with great respect, that the notion that each contention raised before the Court in a bail application must be dealt with separately or repelled by recording elaborate reasoning, is totally misconceived. We are of the view that in the present case the learned Judge who dealt with the second bail had, in fact, embarked on a review of the order of the learned Judge who had earlier dismissed the first bail application".

6. Apart from the above, the learned counsel for the applicant primarily based his arguments and/or preferred present Bail Application, seemingly because of the observations made by this Court in Order dated 28-4-2011, passed in Bail Application No.504 of 2011, that had there been a solitary transaction, with which the applicant was associated and payment was possible, the benefit of Shamraiz Khan's case could have been extended. We are astonished to note rather shocked that the applicant has had the audacity in building up the present Bail application on the foundation that after dismissal of his Bail Application No.504 of 2011 and dismissal of second bail application by the Trial Court on 4-6-2011 and thereafter dismissal of Bail Application No.709 of 2011 by this Court, in neither of which apparently the benefit of Shamraiz Khan's case was raised, through the present Bail Application such benefit is attempted to be availed. Leaving this aspect of the matter aside, it would be clear from the interim charge sheet that there were 3,782 Auto Finances, out of which Rs.57 million are still outstanding/in default pertaining to 383 vehicles. This irresistibly manifest that the record of such Auto Finances is yet to be collected/gathered which by itself shows that the case of the applicant regarding Auto Finance is not solitary or limited to a couple of cases as attempted to be portrayed by the applicant's counsel. Even if it is taken to be true at this stage of time, again in the words of the report it is clear that the record of the vehicles is yet to be collected/received and that under such circumstances the liability of the applicant is yet to be determined. Therefore it cannot be said (as was attempted by the learned counsel for the applicant), that the liability of the applicant is only to the extent of Rs.2,073,497 or at best to the extent of Rs.5.1 million. On this score as well the benefit of Shamraiz Khan's case is not available to the applicant. It may also be noted that the amount to which the applicant counsel has made reference is that of accounts in default but the case is of fraud and cheating and number of such accounts runs into thousands and not just few.

7. As to the various reported and unreported precedents cited by the learned counsel for the applicant, suffice it to observe that in all such cases, either the benefit of Shamraiz Khan's case was extended when the courts came to the conclusion that the liability was determinable and could be paid off and/or the courts came to the conclusion that despite dismissal of the cases on merits, earlier in time, a bail application was moved with altogether on fresh grounds for bail which were not present and/or available at the time of dismissal of earlier bail applications and that such grounds had come to light after further progress into the inquiry/investigation/submission of challans. It may be noted that the applicant in the present case, according to his own showings, acquired the knowledge and/or the contents of interim challan gave him a fresh ground when his liability became determinable and thereafter he moved in the first instance second bail application before the Trial Court (without raising fresh grounds) and after dismissal moved second Bail Application No.709 of 2011 before this Court bearing in both of which the ground as raised and/or were allegedly available after submission of interim challan had not been raised.

8. For what has been observed hereinabove, no ground fresh or otherwise or even the ground of Shamraiz Khan's case was available to the applicant and therefore this Bail Application was dismissed by us in the morning, reasons whereof are these.

9. It goes without saying that the observations made herein-above are only for the purposes of disposal of this Bail Application and/or tentative and should not prejudice in any manner the trial of the case. H.B.T./S-102/K Bail refused.