ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

CP No.D-2030 of 2007

For Katcha Peshi

4-1-2008

Mr. Kumail Ahmed Shirazi, Advocate for the Petitioner

Mr. Ainuddin Khan, ADPG, NAB

Mr. Rizwan Ahmed Siddiqui, DAG for Respondent No.3.

Brief facts of the case are that the incident in this case has taken place in January, 1995. The First Information Report was lodged at the office of the Deputy Director, FIA, CBC, Karachi, vide FIR No.40/1997, registered on 17-6-1997, on the complaint of Manzurul Haq, Executive Vice President, Banking Division, NDFC, M.O., Karachi, under Sections 409, 420, 468, 471 and 34 PPC read with Section 5(2) of PCA, 1947. The complainant has addressed a letter to the Deputy Director, FIA, CBC, Karachi, which is reproduced hereunder:-

"NDFC has approved a financial assistance of Rs.40.000 (m) in December 1994 in favour of M/s West Pakistan Tanks Terminal (Pvt.) Ltd as trade finance facility. This said facility was converted into Working Capital Fund for the purchase of Molasses to be exported abroad. The said facility was disbursed on January 24, 1995.

While reviewing the project files, it was observed that there had been numerous procedural/processing irregularities for which the investigation was carried out in consultation with legal counsel M/s Raza Kazim Associates. We are enclosing a copy of the Investigation Report and draft FIR alongwith all the annexures mentioned in the Investigation Report.

The Investigation Report conclusion that on the basis of available record all the accused persons namely M. B. Abbasi, Ex-Chairman, NDFC and the sponsors Sadaruddin Ganji and Hasham Sadaruddin Ganji of West Pakistan Tanks Terminal (Pvt.) Ltd as mentioned in the Investigation Report are responsible for wrongful loss to N.D.F.C.

In view of the above facts as mentioned in the report, you are requested to kindly register the criminal complaint against M. B. Abbasi, Ex-Chairman, NDFC, under Section 120-A PPC 409 PPC, 418 PPC and the sponsors Sadaruddin Ganji and Hasham Sadaruddin Ganji of West Pakistan Tanks Terminal (Pvt.) Ltd and others under Section 120-A PPC, 409 PPC, 420 PPC, 477 PPC & 5(2) PCA and other relevant laws and take necessary action in accordance with the law."

On the basis of aforesaid complaint, the above mentioned FIR was registered and interim charge-sheet was submitted in the Special Court (Offences in Banks), Karachi, vide interim charge-sheet No.43/97. In the charge-sheet Sadruddin Ghaji and absconders Hashim Sadruddin Ganji and M. B. Abbasi, Ex-Chairman, NDFC, were shown as accused. Final charge-sheet was submitted on 31-8-2001 vide No.76/2001 and the same set of persons were shown as accused.

Mr. Kumail Ahmed Shirazi, learned Counsel for the Petitioner, has submitted that present Petitioner, Sajjad Ahmed, was shown as a witness at serial No.2 in the case and his statement under Section 161 Cr.P.C. was also recorded by the Investigating Officer. Subsequently, accused Sadaruddin Ganji was granted bail by a Division Bench of this Court on the ground of his old-age and illness, while remaining accused persons are still at large and could not be apprehended. Thereafter, the Chairman, NAB, by exercising powers under Section 16(a) of the NAB Ordinance, 1999, applied to the Special Court (Offences in Banks), Karachi, for transfer of this case to NAB Court and it was numbered as Reference No.27 of 2003. In this Reference the present Petitioner was shown as accused at serial No.4 and the accusations made against him are mentioned in paragraph 4 subparagraphs (b) and (c) thereof, which are reproduced hereunder:-

"b. As regard the purchase of molasses by accused No.1 against the facility of Rs.40 million, it has been ascertained from the record provided by NDFC and representative of accused that during the month of January, 1995, accused No.1 & 2 got prepared pay orders of heavy amounts in favour of various Sugar Mills for purchase and transportation of said molasses and its subsequent storage in tanks. The record provided by the representative of accused party further indicates that during the period of 1^st October, 1994 to 20^th September, 1995, accused had purchased 2,95,000/- metric tons molasses from different sugar mills. The said molasses were pledged against the financial facility obtained from NDFC. Accused Sajjad Ahmed (No.4) and Muhammad Saleem Dawood (No.5) being Muqaddam and Technical Supervisor of M/s West Pakistan Tank Terminal Kamari Karachi respectively were the custodian of the pledged goods. Accused No.4 of M/s Taibah Associates and accused No.5 with the connivance of each other and with ulterior motives kept on shifting the molasses from tank without intimation/permission of the Bank and accused No.4 and 5 ultimately shifted it to tank No.13 which had storage capacity of about 8,800 metric tons. Accused No.4 (the bank's Muqaddam) submitted the misleading stock reports showing the quantity of molasses as 20,000 metric tons in the under sized tank capacity of 8,800 metric tons approximately. He also misled the bank officers. This was also proved through the surveyor report submitted to NDFC.

c. According to report of surveyor in the storage tanker one hole was sealed/welded whereas the other hole on the top of the tank was connected with small tank in such a way that from the naked eyes the tank looks filled with molasses although it was not so. This shows that from the first day accused No.1 approached NDFC with malafide intention. They removed the stocks without permission and sold it. As per agreement, it was mandatory for accused No.4 to get permission from bank for changing the tanks, but he deliberately did not do so and with the connivance of accused No.1 & 2 (the borrowers) changed the molasses from one tank to another. Resultantly, 20,000 metric tons molasses pledged in favour of NDFC was illegally/fraudulently removed from the tanks by accused No.1,2,4 & 5 and thereby caused loss of Rs.40.000 million to NDFC. The accused No.1 & 4 furnished false/fabricated stocks report to NDFC."

For four years the NAB authorities did not make any progress and Petitioner Sajjad Ahmed continued to be a witness in the case. Thereafter, on 18-5-2007 a supplementary reference under Section 18(g) read with Section 24(b) of NAB Ordinance, 1999, was filed by the Acting Chairman, NAB, in which for the first time Petitioner, Sajjad Ahmed was made accused in the case. In pursuance of this Reference, accused Sajjad Ahmed was arrested on 7-9-2007 while all other accused persons except Sadaruddin Ganji are absconding.

Mr. Kumail Ahmed Shirazi, learned Counsel for the Petitioner, has argued at length and read out certain technical reports as well as statement recorded under Section 161 Cr.P.C. of the Petitioner. Perusal of the accusations mentioned in the Reference in paragraph 4 subparagraphs (b) and (c) as well as the technical reports require evidence and cross-examination by the Petitioner to establish bonafides of the Petitioner. Mr. Ainuddin Khan, learned ADPG, NAB, has opposed the grant of bail to the Petitioner at this stage of the case and submits that he has placed sufficient material on record to connect the Petitioner with the commission of the offence.

We are not giving any finding in respect of the accusations made against the Petitioner as same will prejudice the case of either of the parties at the trial. We are of the opinion that in this case the prosecution may be given an opportunity to examine material witnesses, namely, Manzurul Haq and Zahid Ilyas Abbasi, in order to bring their case on the record of the trial. This is a very old case in which incident has taken place in 1995 and FIR was registered after a delay of two years i.e. in 1997 and all accused except Sadaruddin Ganji, who is on bail, are absconding and only present Petitioner is in custody. We will, therefore, direct the trial Court to examine both the above named witnesses within one month positively fro the receipt of this order by bifurcating the case of absconding accused. The Petitioner will be at liberty to repeat his bail application after evidence of the two above-named witnesses is recorded, if so advised.

With the above direction, this Petition is disposed of with no order as to costs.

Judge