2016 PLP 1225 (MLD)

SARDAR MUHAMMAD SARFRAZ DOGAR, J.

By virtue of this petition under Section 498, Cr.P.C., Fazal Haque and Fazal Rehman petitioners seek pre-arrest bail in case FIR No.12/2015, dated 23.1.2015, under Sections 420, 467, 471 and 34, P.P.C., registered at Police Station FIA, Lahore.

2. As per FIR lodged on 23.1.2015 by Muhammad Kamran Khurshid OG-1 (S.A.M.D.) Bank of Punjab, Lahore, it is alleged that petitioners being Directors along with their co-accused Akbar Hameed Khan Manager Finance of Messrs Zamindar Flour Mills Ltd. obtained different loan facilities from the Bank of Punjab since 2006 and subsequently defaulted and extended various finance facilities despite being defaulters and finally entered into a settlement agreement on 25.5.2012 with the Bank of Punjab for their outstanding loan of Rs.85,208 Million. The petitioners along with their co-accused Akbar Hameed prepared a fake bank guarantee worth Rs.100 Millions of Allied Bank Ltd. with the active connivance of Jahanzeb Agha, Muhammad Nadeem Pervaiz and submitted the same to the Bank of Punjab for discounting to obtain/adjust their outstanding loan. Mysteriously, the verification of genuineness of the bank guarantee was received to Bank of Punjab with the connivance of official of Bank of Punjab and Allied Bank Ltd. and others. The Allied Bank Ltd. Karachi has confirmed to the Bank of Punjab that the alleged bank guarantee was a fake document, hence, instant case was registered.

3. Heard. Record perused.

4. Although the petitioners are nominated in the FIR being beneficiaries of fake bank guarantee but the fact remains that whether they have prepared and used it. The complainant bank has lodged a C.O.S. No.161 of 2009 for recovery of Rs.68,671,000/- against the petitioners. The petitioners have also filed a C.O.S. No.121 of 2010 against the complainant Bank for rendition of account and recovery, etc. Thereafter, a settled agreement was executed between the parties. It is noticed that in clause 3 of Term and Conditions of Settlement Agreement between the parties dated 25.5.2012 it was agreed that upon receipt of 5% of settlement amount down payment and after arranging consent decree from Court, letter to be written to SBP (ECIB Section) informing them about restructuring of liabilities and clearance from default status. This will enable the party to arrange funds from other Bank and to pay off The Bank of Punjab. Following the settlement agreement the petitioners have paid a sum of Rs.4,035,000/- to the complainant bank through Cheque No.0315308 dated 30.4.2012 and has also withdrawn their C.O.S. No.121 of 2010 vide order dated 31.5.2012. The bank has obtained a compromise decree on the basis of settlement agreement and has filed an execution petition before this Court in C.O.S. No.161 of 2009, which is pending adjudication. The impugned bank guarantee was verified by Allied Bank Ltd. vide letter dated 11.11.2013. Failure to comply the settlement agreement between the parties on the part of Bank constrained the petitioners to file an execution petition, which was dismissed, resultantly, the petitioners filed EFA No.1153/2015 before a Division Bench of this Court alleging that following the terms and conditions of settlement agreement the petitioners have deposited 5% of settled amount as down payment and as a consequence whereof the respondent/bank had to write a letter to the State Bank of Pakistan about reconstructing of liabilities and clearance from default status, which according to the learned counsel for the petitioners has not been done by the respondent/bank and due to this lapse committed by the Bank. The execution proceedings were stayed by a Division Bench of this Court vide order dated 08.7.2015.

5. There is nothing on record to establish that the petitioners have caused any loss to the bank. The prosecution has also failed to point out that why the bank guarantee was required to the bank. Prima facie, it appears that the bank upon failure to comply with the terms and conditions of settlement agreement lodged this case against the petitioners just to effect the recovery as initially Allied Bank Ltd. has verified the bank guarantee but later on denied the same but no investigation is conducted against the officials of Allied Bank Ltd. in this regard. Even otherwise, there is no occasion to defraud the bank as the bank guarantee was issued in favour of the petitioners on 25.9.2013 which is to be expired on 25.8.2014. Before the expiry of said bank guarantee, the complainant bank did not proceed against the actual culprits and it was the first time when the complaint was filed on 11.10.2014 and that was after the expiry of the bank guarantee. This clearly reflects that there is no mala fide on the part of the petitioners rather it was a negligent attitude of the bank itself, which clearly manifests the mala fides of the bank to entangle the petitioners through the registration of this criminal case to cause pressure for the recovery of the remaining amount which is subject matter of the execution petition. Guidance is sought from the judgment of Hon'ble Supreme Court of Pakistan in case titled Ch.Abdul Malik v. The State (PLD 1968 Supreme Court 349). Furthermore, the investigation in this case has not properly been conducted with respect to obtain the bank guarantee. The Investigating Agency failed to thrash out the matter regarding alleged forged documents so as to determine the authenticity of the same. The police record is also silent with regard to sending the signatures of bank officer to Forensic Science Agency for comparison, which makes the case doubtful. The liability, if any, on the part of the petitioners would be determined during the trial after recording prosecution evidence.

6. In the backdrop of such a long litigation, prima facie, it appears that the dispute between the parties is of civil nature regarding which litigation is pending adjudication before this Court. The prosecution has failed to place on record any kind of material with regard to the alleged preparation of fake bank guarantee by the petitioners. Prima facie, there is nothing on record to establish that the petitioners have any concern with the commission of alleged crime. The petitioners have joined the investigation.

7. It is settled law that if accused has a good case for post arrest bail, the plea of the complainant to send him behind the bars for few days by dismissing his application for pre-arrest bail was held to be ludicrous. Reliance is made upon Muhammad Aslam v.The State 2000 YLR 1341) and Nazar Muhammad and 2 others v. The State (2012 PCr.LJ 430). Pre-arrest bail is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motive. Guidance is sought from Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 Supreme Court 427).

8. For the above reasons, this petition is accepted and ad interim pre-arrest bail already granted to the petitioners is confirmed subject to their furnishing fresh bail bonds in the sum of Rs.1,00,000/- each with one surety each in the like amount to the satisfaction of learned trial Court.

9. It is, however, clarified that the observation made hereinabove are tentative in nature, and strictly confined to the disposal of this bail petition. HBT/F-35/L Bail confirmed.