2013 P Cr (PLP)

SALAHUDDIN PANHWAR, J.

Applicant Muhammad Boota seeks post-arrest bail in Crime No.5 of 2012, registered at PS FIA, CBC, Karachi under sections 409/420/467/471/489-F//109/34, P.P.C.

2. Relevant facts are that, on written complaint of Mazheruddin Abro DCSM and Ghulam Muhammad Sahito, Area Manager of UBL District Shaheed Benazirabad regarding embezzlement of bank funds to the tune of Rs.9.7 million at United Bank Limited Branch Moro; inquiry was conducted; during the inquiry it revealed as under:-- "Consequent upon Enquiry No.4/2011 of FIA CBC Karachi it has transpired that accused Muhammad Moosa Korai Universal Teller of UBL Moro Branch in connivance of Muhammad Boota Manager of Messrs Sitara Mehran Trucking Station having UBL Account No.371-0088-4, and others had planned to commit bank fraud. In pursuance thereof, on 6-6-2011 Muhammad Moosa Korai Universal Teller UBL Moro Branch had debited bank's sub-ledger Account No.6020-01-8 with NBP Moro by making two fake/flying entries of Rs.5.00 M and Rs. 4.7 M and credited in the Account No.371-0088-4 of Muhammad Boota, wherefrom the amount transferred to the Account No. 371-0038 of Mr. Abdul Ghaffar without his consent and knowledge. Subsequently, Muhammad Moosa Korai Universal Teller had transferred different amounts out of alleged Rs.97,00,000 into the accounts of various customers (mentioned in the above complaint) without their consent and through fraudulent manners. Accused Muhammad Moosa Korai had already received cash amounts and Cheques from the above customers which he pocketed in connivance of his other associates and had credits to the victimized customer's A/Cs from the account of Mr. Abdul Ghaffar. The criminal involvement of Abdul Sattar and Muhammad Essa of Messrs Sitara Mehran Trucking Station in the above scam has been found. Muhammad Essa had issued two Cheque Nos.175451 for Rs.5.00 M and 175452 for Rs.4.7 M pertaining to his Account No.18190 with NBP Moro Branch in favour of alleged Muhammad Boota. The cheques were given to UBL Moro towards the banks recovery but both the cheques were bounce by NBP due to insufficient funds. Subsequently, Abdul Sattar and Muhammad Essa had issued another Cheque No.29299227 dated 15-7-2011 for Rs.9.7 M of A/C No.1912-1 with UBL Shahpur Jahania Branch towards the recovery but this cheque was also bounced due to insufficient funds. Abdul Sattar and Muhmmad Essawere knowing well that no sufficient balance was available in their accounts to honour the cheque but they deliberately issued the cheques and thereby have facilitated the above crime. The above facts disclose the commission of offences punishable under sections 467/471/ 489-F/109/34, P.P.C. Hence registration of this case accordingly under the approval of competent authority against accused 1) Muhammad Moosa Korai Ex Universal Teller UBL Moro, 2) Muhammad Boota Manager of Messrs Sitara Mehran Trucking Station, 3) Abdul Sattar of Messrs Sitara Mehran Trucking Station, 4) Muhammad Essa of Messrs Sitara Mehran Trucking Station and others. Investigation has been taken up by the undersigned".

3. Counsel for the applicant has, inter alia, contended that applicant is not public servant, hence section 409 is not applicable to him; it is specifically mentioned in written complaint and inquiry that Muhammad Moosa in collusion with Shamsuddin Solangi debited bank funds by fake/flying entries to the account of applicant; subsequently, they transferred the said amount to the account of Abdul Ghaffar; that applicant is not beneficiary of amount in question; main allegation is levelled against Muhammad Moosa and Shamsuddin Solangi; both are bank employee but Shamsuddin Solangi has been let off by prosecution; it is alleged that amount was credited to the account of applicant and Abdul Ghaffar but Abdul Ghaffar is also let off by prosecution; it makes case of further inquiry; case depends upon documentary evidence which can be proved at the trial stage.

4. Conversely, Standing Counsel has argued that applicant is directly involved in this case; applicant has recorded confessional statement before the Magistrate, admitting his guilt in statement, same is voluntarily; offence falls within the prohibitory clause of subsection (i) of section 497, Cr.P.C.; other accused are absconders therefore there is apprehension that in case of bail, applicant will jump away.

5. Heard Mr. Khaleeq Ahmed, learned counsel for the applicant, Mr. Muhammad Qasim, learned Standing Counsel for the State and perused whole record.

6. We have gone through the material placed with the case and have considered arguments of counsel. As per record, it reveals that main allegation of forgery is against two bank employees Muhammad Moosa and Shamsuddin Solangi, as they credited amount by making false entries to the account of applicant, thereafter said amount was transferred to the account of Abdul Ghaffar. It is strange that out of four accused, two accused Shamsuddin and Abdul Ghaffar, who were specifically nominated in case, have been let off by the prosecution without any no justification; It is also transpired in inquiry report that whole amount was distributed by accused Muhammed Moosa from the account of Abdul Ghaffar. it will be conducive to reproduce relevant portion of the inquiry report:-- "On 6-6-2011 Muhammad Moosa Korai Universal Teller UBL Moro Branch had debited bank's sub-ledger Account No.6020-01 8 with NBP Moro, by making two fake/flying entries of Rs.5.00 M and Rs.4.7 M and credited in the Account No.371-0088-4 of Muhammad Boota, where from the amount transferred to the Account No.371-0038 of Mr. Abdul Ghaffar without his consent and knowledge. Subsequently, Muhammad Moosa Korai Universal Teller had transferred different amounts out of alleged Rs.97,00,000 into the accounts of various customers (mentioned in the above complaint) without their consent and through fraudulent manners. Accused Muhammad Moosa Korai had already received cash amounts and Cheques from the above customers which he pocketed in connivance of his other associates and had credits to the victimized customer's A/Cs. from the account of Mr. Abdul Ghaffar. The criminal involvement of Abdul Sattar and Muhammad Essa of Messrs Sitara Mehran Trucking Station in the above scam has been found".

7. As regards the contentions of Standing Counsel that applicant has voluntarily recorded his confessional statement before the Magistrate and has admitted his guilt, we have thoroughly examined the said statement; same is exculpatory statement, as per statement, applicant has not admitted his guilt on the contrary he has disclosed that how and under what circumstances he was cheated by accused Muhammad Moosa and his employers Abdul Sattar and Muhammad Essa, this fact is also in conformity with the enquiry report that applicant was only manager, account was in the name of Messrs Mehran Trucking Station, cheques were issued by Abdul Sattar employer of applicant. Admittedly applicant is not beneficiary in any manner in this case, two nominated accused are already let off by police, all these circumstances create doubt in the prosecution case, which can be considered at bail stage and extended to the applicant. The whole case depends upon documentary evidence, which is in possession of the prosecution and there is no likelihood of tampering with the prosecution case, according to precedent, authoritative proposition of law is that if accused is not beneficiary and case depends upon documentary evidence, which can be assessed in trial, prima facie, accused are entitled for bail. Reference can be made in the case of Saeed Ahmed v. The State (1996 SCMR 1132).

8. For the facts and circumstances discussed hereinabove, prima facie, the applicant's case falls within the ambit of further inquiry and he is entitled for post-arrest bail.

9. We have granted bail to the applicant today by our short order, subject to furnishing solvent surety in the sum of Rs.2 Million (Rupees Two Million) and PR Bond in the like amount to the satisfaction of the trial Court and these are the detailed reasons for the same. The observations and discussions made herein are tentative in nature and will not prejudice either party. MWA/M-78/K Bail granted.