2007 P Cr (PLP)

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for his release on bail .in Reference No.35 of 2005, titled as State v. Shahid Hassan Awan etc, pending before the learned Judge Accountability Court No.3 Lahore.

2. The brief allegation against .the petitioner as contained in para. No.9 (e) of the Reference is as under:

"(e) The accused Zakaullah Khan Sherwani frontman of accused No.1 was responsible for maintaining different bank accounts. Accused No.5 received approximately Rs.95 million directly into his accounts from the account of accused No.1 and entire amount so received in his accounts was withdrawn and misappropriated. The details are as under:

(i) He received approximately Rs.42 million directly in his account from the accounts of Shahid Hassan Awan accused and all the money was embezzled by the accused person. (ii) From the account in First Standard Chartered Bank Gulberg. Lahore fixed deposit certificates worth Rs.30 million were purchased and encashed. (iii) He opened account in UBL, Liberty Market Lahore with transfer balance of Rs.23 million from the account of accused No.1. Further, an amount of Rs.7,50,000 was received by accused from the saving account of accused No.1. He also received Rs.5 million in this account from the father of accused No. l and entire amount was withdrawn in two days. (iv) The accused as Benamidar of .accused No. 1 purchased two Kanals Plot No.116 Block "A" Phase-II Scheme II in Ravian Cooperative Housing Society Lahore. He sold this property before his arrest and- misappropriated the sale price. (v) The accused purchased Property No.668/1 Block "Z" Phase-III DHA Lahore that was disposed of and its proceeds were misappropriated. (vi) On 2-9-2003 accused withdrew Rs.3.5 million from Standard Chartered Bank Lahore in violation of the orders of the Honourable Lahore High Court Lahore whereupon his warrants of arrest were issued. "

3. The learned counsel for the petitioner contends that there is no likelihood of the conclusion of the trial in the near .future as the prosecution has cited 910 witnesses which the NAB Authorities intend to produce to prove the case; that out of 910 witnesses only statements of four witnesses have been recorded so far in six months; that the petitioner was not the Director and the allegation against him is that Shahid Hassan Awan, Chief Executive of the Company had transferred some amount in the account of: the petitioner which was subsequently withdrawn; that the said transaction does not fall within the affair of the company and the principal accused Shahid Hassan Awan had already raised plea bargain at the initial stage and voluntarily accepted the whole liability, who also intended to return the entire amount.

4. On the other hand, the learned Prosecutor on behalf of the NAB opposes this petition on the ground that the petitioner remained present when the witnesses had gone to deposit the amount along with Shahid Hassan Awan; that he had also filed C.M. in the Lahore High Court, Lahore for withdrawal of the amount and also got withdrawn the amount in violation of the orders passed by the company:

5. We have heard the learned counsel for the parties and also perused the record with due care and caution.

6. It is admitted fact that the petitioner was not Director of the Company. It is also admitted fact that so far the NAB Authorities have not collected any direct evidence against the petitioner that he had instigated anybody for depositing the amount or any person at his instance had deposited the amount in the company. It is also not denied that the amount of 95 millions which was deposited in the account of the petitioner was transferred from the account of Shahid Hassan Awan Chief Executive. It is claimed that he was employee of the said company and Chief Executive had transferred the said amount, who subsequently withdrew the said amount and he being employee of the company was not in a position to refuse the transfer of the amount and withdrawal of the same by the Chief Executive of the Company. For the time being there is nothing on the record to controvert the assertion of the petitioner. It seems that the petitioner has been roped in the present case merely on surmises and conjectures, who cannot be detained in jail for an indefinite period when there is no likelihood of conclusion of the trial in the near future as the. prosecution has cited 910 P. Ws. in the calendar of witnesses and only four P.Ws. have been recorded so far. On the other hand the case to the extent of the petitioner has become one of further inquiry.

7. For the foregoing discussion, this petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs. one million with two sureties each in the like amount to the satisfaction of D.R. (J) of this Court. H.B.T./Z-50/L Bail granted.