2002 P Cr (PLP)

Precisely, the allegations are that the applicant/accused and one Pesi R. Amaria are Directors of Messrs Standard Store (Pvt.) Ltd. The said Private Limited Company was managed and controlled through these Directors/Sponsors, whereas co-accused Abdul Hameed was appointed as a Manager in the said company. All of them have been found involved in collusively causing illegal and colossal loss of an amount of Rs.3,82,87,290 to the public exchequer by deceitful manner through acts of forgery of Import and Transport permits and evasion of vend fees and the fees/cess charged on Transport permits for disposal of heavy quantity of P.M.F.L. Other six official-accused are also alleged to have indulged in the abuse of their authority and wilfully failed to exercise their authority to prevent rendition of such undue benefit rather facilitated in embezzlement in between years 1997 to 1999. It is further alleged that the record shows Mrs. Nilofar Abadan and S.R. Poonegar to be the Directors of said Private Limited Company, but, they do not seem to have actively participated in the scam. Contentions of learned counsel for the applicant are that there is no material available with the prosecution to indicate that applicant has derived any illegal benefit and/or involved in the alleged scam. Learned counsel expressed that the scam relates to Province of Sindh in Karachi of which Mr. S.R. Poonegar is Director and he may be primarily involved in the scam but the reference mala fide discloses that he is not actively involved and has not been joined as an accused person. In support of his contentions learned counsel has referred to various documents placed on record by the applicant to show that the scam relates to December, 1997 to 1999 and Mr. S.R. Poonegar became Director of Karachi operation in September, 1997 and in case, co-accused Abdul Hameed, Manager of Company has committed any forgery and fabrication causing loss to Government exchequer the applicant cannot be held responsible for the same but the said Manager and Mr. S.R. Poonegar who happened to be former Chief Secretary to Government of Balochistan may be held responsible. He added that Mr. S.R. Poonegar had in fact purchased Messrs Standard Store (Pvt.) Ltd. by way of an agreement, dated 20th September, 2000 and before that he was defacto Incharge/Owner of the Company and may be responsible for the alleged wrongful acts, if any; but, Mr. Poonegar has been absolved of the liability with mala fides and instead the applicant has been booked in the scam by the concerned authorities. He orally submitted that in view of documents in support of his contentions, as above, this bail application may be converted into miscellaneous application under section 561-A, Cr.P.C. and proceedings, so far applicant is concerned, be quashed. He placed reliance on case-law reported in 1988 SCMR 1223, 1995 SCMR 1249, PLD 1995 SC 34, 2000 SCMR 122 and unreported cases in Bail Applications Nos. 1228 of 2001 and 1363 of 2001 of this Court. Learned Additional Deputy Prosecutor-General, NAB, has vehemently opposed this application. His contention is that the applicant is one of the Controlling Director of the Company which fact has been admitted by him in his application, therefore, it cannot be said rather is inconceivable that he is not involved in embezzlement of vend fees/assessment fees and other charges and it also cannot be said that he has not derived any illegal benefit causing colossal loss to public exchequer, in the scam. He has submitted that Mr. S.R. Poonegar is neither a prosecution witness nor the documents produced by the applicant can be considered at this stage. He placed reliance on an unreported case in Criminal- Bail Application No. 1386 of 2001 of this Court and submitted that case-law referred to by learned counsel for the applicant is in distinguishable circumstances and is not relevant to the case of applicant. Learned Additional Deputy Prosecutor-General also opposed the oral request of learned counsel for the applicant to quash the proceedings in the available circumstances of the case. We have given our anxious consideration to the arguments of both the learned counsel, with their assistance, we have examined the material available before us and also, we have gone through the case-law cited by learned counsel for the applicant. The applicant has admitted in his application that during the year 1996, he acquired controlling shares in the Standard Store (Pvt.) Ltd. Company. He has also not denied that he was not a Director of the Company during the period of time when scam took place, therefore, it cannot be determined at this stage that he did not benefit from the embezzled amount of money of which the Government has been deprived of on account of the wrongful acts alleged in the reference. Normally, in cases of bail before arrest, mala fides on the part of the prosecution/complainant is to be established. In our view no mala fides have been established as against the applicant. The applicant in the affidavit furnished in support of this application has also disclosed that trial Court has issued non-bailable warrants, therefore, he could not approach trial Court. Section 31-A of the NAB Ordinance, 1999, inter alia, provides that whoever avoids service of any process issued by any Court shall be guilty of an offence punishable with imprisonment extending to three years. The applicant ought to have, therefore, surrendered himself before the trial Court in which, patently, it seems he has failed. The question whether there is no sufficient evidence to hold applicant guilty shall be seen at the trial. The case-law cited by learned counsel for the applicant is also of no assistance to the case of applicant, the same being in distinguishable circumstances. The applicant in view of above discussion does not seem to be entitled to .the pre-arrest bail. Consequently, we dismissed this application. The request of learned counsel for the applicant for quashment of proceedings also cannot be considered at this stage, in the circumstances of the case. N.H.Q./A-314/K Pre-arrest bail refused.