2004 Y L R 254
[Karachi]
Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ
ABD-E-ALI NAFAR---Applicant
Versus
THE STATE---Respondent
Criminal Bail Applications Nos.567 and 548 of 2003, decided, on 18th June, 2003.
Criminal Procedure Code (V of 1898)---
----Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 420/468/471/34---Offences in
Respect of Banks (Special Courts) Ordinance (IX of 1984), S.5(7) --- Bail, grant of---
Trial Court had refused bail to accused on complete misreading of the material on
record---Judicial Officers were expected to apply their minds with greater care and
circumspection in the matters involving liberties of citizens---Accused were admitted
to bail in the amount of Rupees one million each with P.R. bond in the like amount, as
suggested -by counsel for the accused, to the satisfaction of the Trial Court---Such
order was not passed because the subject of S.5(7) of the Offences in Respect of Banks
(Special Courts) Ordinance, 1984, appeared to secure the interest of the Bank and as
long as security for recovery of the amount allegedly misappropriated was available
there was no need to put further burden on the accused in violation of S. 498, Cr. P. C.
Muhammad Saleem Thepdawala for Applicant (in Criminal Bail Application No.567
of 2003).
S. Muhammad Nehal Hashmi for Applicant (in Criminal Bail Application No.548 of
2003).
Khurshid A. Hashmi, Deputy Attorney-General for the State.
Date of hearing: 18th June, 2003.
ORDER
Both these bail applications arise from Case No. 126 of 2002 pending before the
Special Courts (Offences in Banks), Karachi, wherein bail applications moved by the
applicants were dismissed by the learned trial Court. It appears that both the applicants
were arrested in November, 2002 and applied for bail before the trial Court, but their
applications were rejected. Thereafter they moved this Court which dismissed the bail
applications, but directed that fresh applications could be made before the trial Court
after recording of some evidence. Apparently, some evidence was duly recorded, but
when the applicants applied for bail, their applications were dismissed by the
impugned order dated 23-4-2003.
Without going into details it may be observed that while making a tentative assessment
of the evidence the learned trial Court has categorically held that the witnesses
examined have prima facie proved and supported the prosecution case in the following
words:--
" after tentative assessment of the statements of P.Ws. complaint S. Naqi Raza,
the Chief Manager, P.W. 1 Irfan Raza, Fax Operator, P.W. Chief Cashier Shakir
of complainant Bank Al-Habib, I.I. Chundrigar Road, Karachi, P.W. Zulfiqar
and Muhammad Nasim of SITE Branch of Bank Al-Habib and P.W. Sajid Ali of
Bank Al-Habib Cloth Market Branch, Karachi, that they have prima facie
proved and supported the prosecution case."
Mr. Muhammad Saleem Thepdawala, learned counsel for the applicant in Bail
Application No.567 of 2003, referred to the statement of P.W. 3 Syed Naqi Raza,
Senior Chief Manager of the Bank, who, inter alia, stated that the auditors were unable
to find the IBCA's referred to in the F.I.R. to be forged and were not able to find any
criminal act on the part of the accused persons. He further stated that on the basis of
the auditors' report the management had decided to withdraw the case against the
accused persons. Learned counsel further referred to the deposition of Mirza Zahid
Baig, Senior Manager Branch Audits, who stated in cross-examination that he did not
find any fault or irregularity in the alleged transactions on the part of the officials of
the bank i.e., the applicants.
For the foregoing reasons we are constrained to record that the order dismissing bail
application is premised upon a complete misreading of the material on record and we
expect Judicial Officers to apply their mind with greater care and circumspection in the
matters where liberties of citizens are involved. For the foregoing reasons we would
admit the applicants to bail in the amount of Rs.1.00 million (Rupees one million) each
with P.R. bond in the like amount, as suggested by both Mr. Muhammad Saleem
Thepdawala and Mr. S. Muhammad Nehal Hashmi, to the satisfaction of the trial
Court. We are doing so because the subject of section 5(7) of the Ordinance appears to
secure the interest of the bank and as long as security for recovery of the amount
allegedly misappropriated is available there is no need to put further burden on the
applicants in violation of section 498. Cr.P.C.
N.H.Q./A-477/K Bail allowed.
