ORDER SHEET
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Date Order with signature of Judge
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FOR KATCHA PESHI
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DATE OF HEARING 14.12.2007
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Mr. Nisar Ahmed Tarar Advocate for the Petitioner.
Mr. Ainuddin Khan ADPGA NAB.
YASMIN ABBASEY, J: By this order I intend to dispose off two bail applications moved by petitioner Muhammad Altaf Madraswala in references filed by NAB under No.23/2006 and 01/2007.
Main charge in reference No.23/2006 against the Petitioner is that of:-
1) Withdrawal of Rs.5,996,696/- from different accounts by debiting the same on the pretext of providing credit worthiness reports to the Foreign correspondents on behalf of customers engaged in imports through the branch.
2) Taking advantage of his official position in Saudi Pak Commercial Bank, he established a business of stamp vendor through his frontman Muhammad Arshad for supplying adhesive stamps to the bank.
3) The accused under the garb of obtaining credit worthiness reports from the actual authorized representatives appointed by the Saudi Pak Commercial Bank Limited (ICIL), diverted the business of securing credit worthiness reports to the benami company formed by him in the name and style of M/s International Credit Information (ICI). This benami company was enlisted at the bank without the authorization of management of the Saudi Pak Commercial Bank as another alternate company to issue credit worthiness report on behalf of them.
4) That applicant used to hand over papers containing calculations in his own handwriting for making debit/credit vouchers towards the charges of credit worthiness reports to his subordinate staffs and thereafter he used to arrange pay order in the name of his benami company M/s International Credit Information (ICI).
5) It is alleged that Petitioner used to receive those pay orders from staff of Saudi Pak Commercial Bank for their delivery to the concerned ICI Company but instead of that he used to deposit the same in his own fictitious company with the same name of M/s International Credit Information and thereafter used to transfer the amount in his own personal account No.06262-1515 in PICIC Commercial Bank Limited, Clifton Branch, Karachi and thereafter withdrew the same for his own use.
In the second reference filed on 29.09.2006 under No.01/2007, it is stated that during the period from 01.07.1994 to 30.06.1997 rate of Foreign Bill Stamp charges as per Notification was at 0.3% and from 01.07.1997 onwards, it was reduced to 0.2% Saudi Pak Commercial Bank adopted two methods to debit the Foreign Bill Stamp charges from the account of customers. It is alleged that accused after selecting some of the accounts, debited excess Foreign Bill Stamp charges from their accounts. While doing so he selected and carried out transactions only in those accounts which were either defaulters of the Bank or those having huge business transactions with the Bank. The said charges were credited in those account either through direct transfer entries or through pay orders. For this purpose he used to pass on calculated sheets to his subordinate staff of the bank for making of vouchers or filled in vouchers in his own handwriting, for the recovery of Foreign Bill Stamp charges. The charges being debited to the bank accounts of the customers were given counter credit in the account of Muhammad Arshad, which subsequently was being utilized by the petitioner for his personal gains.
According to petitioner these references were malafidely and falsely made against him. It is stated that because of malpractice adopted by the bank, he was terminated from service therefore, he had filed a suit bearing No.946/2005 against the Bank for compensations and damages and as counter blast Bank has submitted an application to NAB Authorities. Petitioner had filed C.P. No.296/2006 before this Court but after filing of both the references they were disposed off as infructuous.
It is sated by the Petitioner that after filing references the raiding party had entered in house by jumping inside at night they attacked on petitioner, he received injury on his thigh and was hospitalized in J.P.M.C. Learned counsel for the petitioner at the first instance had pressed the very injury received during arrest for grant of his bail.
Referring to the medical reports he argued that because of defective MRI machine at Ziauddin Hospital, North Nazimabad, Karachi his MRI test could not be conducted and just for this test petitioner is waiting from 05.06.2007 till this date. So, for having proper medical treatment he requested for grant of bail, but on 29.05.2007 it was "reported that patient need no more surgical treatment, his fixator shall be removed after fracture healing. He needs to take care of pin tracks with daily cleaning with pyodine solution. Control pain, Diabetes and continued physiotherapy for knee mobilization, that all can be done at home or Jail hospital". On the basis of this report of medical officer, learned counsel for NAB has objected for grant of bail that the petitioner being properly treated at jail hospital and his condition is improving day-by-day. The treatment which he, required, can be provided to him at jail hospital. On the basis of this report and as bail application was pressed only on medical ground, by short order we had dismissed the application, but while going through the whole file for the purpose of recording reasons, it appears that beside medical ground certain other factors also need consideration for the disposal of this application.
From the record it appears that although allegation of misappropriation of amount of different account holders of Saudi Pak Commercial Bank has been alleged against this petitioner and the figures of withdrawal of amount with cheque numbers are shown in the reference, but when learned counsel for the NAB was asked to corroborate the same with the evidence collected by them, for the misappropriation committed by the Petitioner, he was unable to give any specific names of account holders or numbers of account, amount of which has been misappropriated. A vague statement in this regard with the total calculation of the amount misappropriated has been made. Learned counsel for the NAB has referred certain statements of prosecution witnesses, placed on record by him alongwith counter affidavit of respondent's investigation officer.
Ghulam Ali Khan, who is Senior Vice President, Audit and Implementation Division, Saudi Pak Commercial Bank, has deposed that during investigation it was found that a fictitious company M/s ICI is being run by their Bank employee namely Altaf Madraswala. During investigation it is found that he has misappropriated an amount of Rs.5,996,696/- by debiting the same from the various account holders of the bank and credited into the account of fictitious company M/s ICI. He has given the detailed of such payments and account holders.
A perusal of this statement show that the alleged misappropriation started from 13.04.2002 and the last statement is of 31.3.2004. Whereas present reference has been filed on 22.09.2006. No reason has been assigned by learned counsel for NAB that if the amount of the companies, detail of which has been given by him, in statement of Ghulam Ali Khan, was misappropriated why not a single complaint was filed by any of the company to Saudi Pak Commercial Bank for the said misappropriation. And why only on filing of suit, complainant bank or NAB came in motion after lapse of about 04 years.
All the prosecution witnesses had tried to shift the burden on petitioner but no definite or direct evidence at this stage has been brought on record by NAB Authorities to make out a case for rejction of bail. However, statement of Muhammad Arshad petitioner's partner in business has been referred as star witness by NAB Authorities. He in his 161 Cr.P.C statement alleged that since 1997 petitioner Altaf Madrasawala offered him for joint business of stamp vendor. On his acceptance petitioner opened a current account No.011025445801 in the name of Muhammad Arshad in Saudi Pak Commercial Bank.
It is stated that Petitioner kept the bank cheque book duly signed by PW Muhammad Arshad of above account in his custody and every time he used this account as if Muhammad Arshad is not beneficiary of single penny of the business. According to him Petitioner used to pay him cash for arranging required stamps from City Courts. He further deposed that the entire business of ICI and stamp vendor was done by petitioner at his own private office established in Bungalow No.21/23, Block-4, Clifton, Karachi.
According to learned counsel for NAB, bank has started enquiry in the matter in December, 2004 and in this regard petitioner advised PW Muhammad Arshad to meet Zafar Zaman EVP of Saudi Pak Commercial Bank. According to PW he replies the queries of Zafar Zaman as per guideline given by Altaf Madrasawala. By giving such statement PW Muhammad Arshad has tried to save himself and had put all responsibilities of the function of ICI and business of stamp vending run through him on the shoulder of petitioner. This 161 Cr.P.C. statement of PW Muhammad Arshad, which appears to have been taken as confessional statement at this stage cannot be taken against applicant. Such statement is always of exculpatory nature, which being inadmissible cannot be used as good piece of evidence against the Petitioner at this stage.
So far as the charge made in reference No.01/2007 is concerned no specific wrong deduction has been shown by any of the witness from their accounts. Statement of all prosecution witnesses are vague in nature, hence any assessment, on them at this stage will be dangerous as at bail stage court is not supposed to evaluate the evidence. It has merely to consider as to whether the material on record makes out any case of bail or not.
Prosecution's case either in form of challan or reference is nothing, but an opinion of investigating agency and is entirely an irrelevant consideration for the purpose of forming an opinion on bail application.
Even otherwise for the purpose of bail, law can not be stretched in favour of prosecution. If any benefit of doubt arises, it must go to accused.
Under these circumstances, although on medical ground petitioner has not been able to make out a good ground for grant of bail, but on merits he has sufficient material in his favour. Coupled with fact that the presiding officer of trial Court on 12.09.2007 had made statement that matter is fixed for framing of charge but due to non-availability of court room or chamber he is unable to proceed with the matter and adjourned it to a next date. What happened thereafter, is not on record.
In view of the above discussion we are of the view that short order announced on 11.12.2007 needs to be rectified, hence the same is hereby set-aside and the petitioner is allowed to be enlarged on bail subject to furnishing surety in the sum of Rs.500,000/- in each reference and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.
Karachi,
Dated: J U D G E
MEHMOOD ALAM RIZVI J: With utmost respect I am not agree with the above order as we had already dismissed above petitions vide order dated 11.12.2007 in open court and the short order was also signed and thereafter again hearing of the above matter is amounting to review of earlier order.
Karachi,
Dated: J U D G E