Marriage Case

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Bail Application No.571 of 2009

Date Order with signature of Judge

Applicants Muhammad Hanif S. Kalia and two others through Dr. Muhammad Farogh Naseem and Mr Shaukat Hayat, advocate.

The State through Mr. Shahab Sarki, learned Standing Counsel.

…..

MUHAMMED KARIM KHAN AGHA, J., By this order we intend to dispose of criminal bail application No.571/2009, arising out of FIR No.76/2008, lodged on 15.11.2008 at about 15.10 hours, (the “FIR”), under Sections 5,8 and 22/23 of Foreign Exchange Regulation Act, 1947 (“FERA, 1947”) read with Sections 7, 8 and 20 of Prevention of Electronic Crime Ordinance, 2007 (“PECO, 2007”) and Sections 420,467, 471,477-A/34, PPC at FIA, Crime Circle, Karachi.

2. The applicants applied for bail in Special Court (Offences in Banks), Sindh at Karachi, (the “Special Court”) in Sessions Case No.56 of 2008, who declined bail to all the applicants vide its order dated 21.4.2009 (“Impugned Order”). Hence this application for bail.

3. The brief facts of the prosecution case, as disclosed in the FIR, are as follows:-

“Consequent upon enquiry No.118/2008 of FIA, Crime Circle, Karachi, initiated on a complaint of State Bank of Pakistan against illegal foreign exchange operators it has transpired that the Directors, Partners and Franchisees of M/s Khanani & Kalia International, being licensed Exchange Company, besides their authorized exchange business, have also been indulging in the huge illegal transfer of money to the tune of billions of rupees, in collusion with different banks, exchange companies, money changers, businessmen and private parties.

The enquiry has further revealed that in order to conduct this illegal business of foreign exchange racketeering, the Partners/Directors of M/s Khanani and Kalia International, besides their official websites for transactions i.e. www.remitton.com and www.kkionline.com also created fraudulently with criminal intention replica website www.clickpk.net without the knowledge of State Bank of Pakistan to effect illegal transfers of money from and into Pakistan in a clandestine manner. This illegal exchange system worked side by side, with their legal/declared system, being controlled from their Head Office network situated at 110-1105, Saima Trade Tower, I.I. Chundrigar Road, Karachi, throughout Pakistan in collusion with their Franchisees as well as a number of other offices all over Pakistan. For the purpose, a very huge computer system having sophisticated heavy duty machines was installed at the premises of this Head Office having a network of numerous client stations inside and outside Pakistan having direct automated access through internet codes and passwords. In order to facilitate the business of illegal exchange, the accused persons used the services of M/s Al-Zarooni Exchange, UAE, having Atif Polani and Javed Qasim as the focal persons to facilitate and execute all such transactions in UAE.

As per modus operandi discovered during the course of enquiry, a large number of Exchange Companies/firms and agents outside Pakistan used to receive the amounts from Overseas Pakistanis on behalf of accused persons, for remitting the same to Pakistan but instead of transferring these amounts to Pakistan through the authorized Banks duly declared to State Bank of Pakistan, they either used to retain the same abroad, or used to transfer them to any of the foreign currency accounts/benami accounts in Pakistan opened and operated in collusion with the other persons/employees, secretly and illegally to conceal these remittances. These remittances were illegally held in these foreign currency accounts and were never sold/declared to State Bank of Pakistan, while the equivalent amounts payable against these remittances were disbursed in Pak. rupees to the relatives/recipients of such overseas Pakistanis from their “own” resources in Pakistan. Thus the accused person and their franchisees/agents deprived Govt. of Pakistan of foreign exchange to the tune of billions of dollars in past few years.

In order to further misuse this foreign exchange retained in these foreign currency accounts, the accused persons, with common objectives and criminal intentions, in collusion with the concerned bank officers and others, manipulated the transfer back of this foreign exchange to different foreign companies, individuals and exporters as “Hawala transfers” on behest of a large number of businessmen, to meet the under invoiced amounts required to be paid illegally to such foreign exporters in connection with their “misdeclared” imports, to evade import duties and taxes. Besides, huge Hawala transfers were made to different banks, construction companies and institutions abroad illegally, after taking substantial commissions being illegal gains. Thus this huge foreign exchange which should have been earned to Pakistan was reversed back to other countries causing loss of billons of dollars to Pakistan in terms of foreign exchange to facilitate those who had earned money in Pakistan through illegal means.

The enquiry has further revealed that the above accused persons, for the purpose of illegal transfer of money, had active connivance of some Directors/Partners of other exchange companies and money changers and they used to “facilitate, assist and accommodate” each other on “give and take” of illegal foreign exchange as per market requirements.

The accused Directors/Partners of M/s Khanani and Kalia International (Pvt) Limited, in complexity with others contravened the provisions of sections 5,8 and 22 of Foreign Exchange Regulation Act, 1947 and thereby caused huge loss of foreign exchange to the tune of billons of rupees to Govt. of Pakistan and committed the offences of fraud/forgery through computer/internet punishable under Section 23 of Foreign Exchange Regulation Act, 1947, read with section 7,8 and 20 of the Prevention of Electronic Crime Ordinance, 2007 and under section 420,467,471,477-A/34, PPC. Hence this case is registered under the orders of the competent authority.”

4. During the course of trial, interim charge sheet bearing No.117/2008 was submitted on 04.12.2008, supplementary charge sheet bearing No.5/2009 was submitted on 06.01.2009 and the final charge sheet bearing No.23/2009 was filed on 06.3.2009. All the applicants were arrested on 08.11.2008 and since then they have been in judicial custody.

5. In a nutshell, the case against the applicants, who were Directors/Partners/Shareholders in M/s Khanani and Kalia International (Pvt) Limited (“KKI”), is that they had setup an illegal parallel website, which enabled them to illegally and secretly engage in unreported forex and Hawala Trading. By this mechanism of the applicants there was no physical transfer of any forex from Pakistan and that as a result of this illegal forex/Hawala Trading the applicants had breached and/or violated the rules and regulations of the State Bank of Pakistan (“SBP”), the terms of their license and also other laws such as FERA 1947 , PECO 1997 and PPC which had the result of depriving the national exchequer of huge amounts of forex which it would have earned in the shape of commission had the transactions been carried out through regular SBP channels.

6. The learned counsel for the applicants admit that the applicants were an authorized licensee of the SBP to carry out foreign exchange business but that they were doing so strictly in accordance with the terms and conditions of their license. He did not dispute that there may have been in existence a parallel website which was carrying out illegal/unauthorized business of foreign exchange but such parallel website had nothing to do with the applicants.

7. During the arguments, learned counsel for the applicants contended that this case has been fabricated and foisted upon the applicants by the FIA in order to make the applicants scapegoats for the poor economic conditions prevailing in the country. He pointed out that under Section 23 FERA, 1947, the maximum sentence is two years and fine or both and under Section 7 PECO, 2007, the maximum sentence is seven years. According to him, the FIA had malafidedly filed this case in the Special Court only to enable them to have the benefit of a maximum sentence of ten years which would make it more difficult for the applicants to be granted bail as the case would now fall into the non bailable category under the proviso to section 497 (2) Cr. P.C.

8. Learned counsel for the applicants emphasized that the Offences in respect of Banks (Special Courts), Ordinance 1984 (“Ordinance, 1984”), which dealt with offenses in respect of banks only, was not applicable and the Special Court had no jurisdiction to hear this case under Ordinance, 1984 as the applicants were Directors/partners/shareholders of an Exchange Company and the alleged offenses came under the purview of FERA, 1947 and PECO, 2007. He also argued that under Section 2(d) of Ordinance, 1984 the offences, with which the applicants are charged, in the FIR, had not been mentioned as scheduled offences and, therefore, the Special Court had no jurisdiction to take cognizance of the offences. He further contended that under Ordinance, 1984 the investigation had to be initiated on a complaint but in this case no such complaint existed and the FIA had malefidely acted on their own initiative. In support of his contentions he has relied on the case of MUHAMMAD HASHIM v. PRESIDING OFFICER, SPECIAL BANKING COURT (2006 P.CR.L.J. 1886) and the case of A. HABIB AHMED v. M.K.G. SCOTT CHRISTIAN (PLD 1992 SC 353).

9. Learned counsel for the applicants vehemently denied the allegation that the applicants had opened the benami accounts and contended that there was no evidence to connect the applicants with the alleged offence. The so-called benami accounts had been opened by other people, who had no connection with the applicants. He further submitted that none of the alleged benami account holders listed in the charge sheet mentioned the names of the applicants and that the applicants had no concern with the companies, which are mentioned in the final charge sheet. Such documents may have mentioned Altaf Khanani, however, the applicants had nothing to do with him in any business dealings which he may have conducted in respect of this case. They cannot be held responsible for his actions simply because he is related to them.

10. Learned counsel for the applicants also submitted that according to the challan the applicants are involved in the offences of this case only in terms of colluding with the bank officials in the alleged scam and as such at best could be seen as playing a minor role. He drew the Court’s attention to the fact that the so-called major players like the bankers had already been granted bail by this Court and as such under the rule of consistency the applicants were also entitled to the grant of bail. This is more so, since the role of the applicants, according to the challan, is lesser than the bankers. In this respect he has relied on the following case law:-

(i) SHUJAT HUSSAIN v. STATE (1995 SCMR 1249);

(ii) ABDUL AZIZ KHAN NIAZI v. STATE (PLD 2003 SC 668);

(iii) MUHAMMAD DAUD v. STATE 92008 SCMR 173);

11. Learned counsel for the applicants referred to Sections 420,467, 471,477-A/34, PPC and submitted that none of these sections were attracted to the alleged actions of the applicants. He drew the Court’s attention to the fact that this case involves a white collar crime and huge documentary evidence is required, thus, it is a fit case for further enquiry within the meaning of Section 497(2), Cr.P.C. and as such the applicants are entitled to the concession of bail. He further submitted that where the applicants have been charged under more than one offence then for the purposes of bail the charges having lesser sentence should be considered. He has relied on the following case law in support of his above contentions:-

(i) MUHAMMAD SAEED MEHDI v. STATE (2002 SCMR 282);

(ii) ABDUL MAJID v. JUDGE, SPECIAL COURT (OFFENCES IN BANKS) (1986 P.CR. L. J. 890);

(iii) SAEED AHMED v. STATE (1996 SCMR 1132);

(iv) AMIR AHMED HASHMI v. STATE (PLD 2004 Karachi 617);

(v) MUZAMMIL NIAZI v. STATE (PLD 2003 Karachi 526);

12. With regard to the Impugned Order, he submitted that the applicants had only been denied bail because the bankers had at that stage already been denied bail by the Special Court, however, since the bankers had now been granted bail by this Hon’ble Court this hurdle had now been overcome.

13. Learned counsel for the applicants submitted that bail could not be withheld as punishment and that the benefit of doubt was to go to the applicants and cited the general principle of bail, all of which applied to the applicants in this case. He placed reliance on the following authorities in this respect:-

(i) MANZOOR v. STATE (PLD 1972 SC 81);

(ii) AMIR v. STATE (PLD 1972 SC 277);

(iii) MOHD. HANIF v. STATE (1978 SCMR 69);

(iv) MUHAMMAD ASLAM v. STATE (1992 MLD 880);

14. He further submitted that statements of the applicants recorded under Section 161, Cr.P.C. have no evidentiary value, that they had been recorded after coercion and that there were material contradictions not only in the Section 161, Cr.P.C. statements but also in the challan and the charge sheet. He placed reliance on the following authorities:-

(i) ASIF JAMEEL v. STATE (2003 MLD 676(c));

(ii) SALIM JAVED DURRANI v. STATE (PLJ 2005 Peshawar 7(ii));

(iii) NUSRATULLAH v. STATE (1995 MLD 1635(b));

(iv) RUKHSAR AHMAD v. STATE (2005 P.CR.L.J.988(a));

(v) MUHAMMAD FAROOQ AFRIDI v. STATE (2003 YLR 2700(d)):

(vi) MUHAMMAD BASHIR GURAYA v. RAJA MUHAMMAD IRSHAD (2005 YLR 1220(b));

(vii) SAJJAD HUSSAIN v. STATE (PLD 1996 Lahore 286(a));

(viii) KHALIL AHMAD v. STATE (2003 P.CR.L.J. 1754):

(ix) MUHAMMAD RIAZ MUNNA v. STATE (1993 SCMR 1321);

(x) MAZULLAH v. ABDUR REHMAN (1997 SCMR 1836);

(xi) SUBA KHAN v. MUHAMMAD AJMAL (2006 SCMR 66(c)):

(xii) MUHAMMAD KHAN v. STATE (PLJ 2001 CR.CASES (QUETTA) 978(i);

(xiii) MAUJAN JATOI v. STATE (2001 YLR 2849); and

(xiv) MIR HASSAN v. STATE (PLD 2006 Karachi 472)

15. According to him, the documents relied upon by the Prosecution had also been acquired as a result of an illegal seizure and as such they were liable to be excluded from consideration in the instant bail application. He placed reliance on the following authorities:-

(i) COLLECTOR OF SALES TAX AND CENTRAL EXCISE v. MEGA TECH (PVT.) LTD. (2005 SCMR 1166);

(ii) COLLECTOR OF SALES TAX AND CENTRAL EXCISE v. MEGA TECH (PVT.) LTD. (2005 PTD 1933);

16. He submitted that the Prosecution had failed to make out a prima facie case against the applicants as they had not been able to connect them to any of the offences, any of the transactions and the parallel website www.clickpk.net which allegedly was the hub for carrying out the illegal transactions.

17. For all the above reasons learned counsel for the applicants submitted that the applicants were entitled to be enlarged on bail.

18. On the other hand, learned Standing Counsel submitted that based on the FIR, challan, statements recorded under Section 161 Cr.P.C. and other documentary evidence on the Special Courts record, there was a strong case against the applicants in their capacity as directors/partners of KKI.

19. According to the learned Standing Counsel, the applicants had a website authorized by the SBP for carrying out their business as licensed money changers. By using this website all the applicants’ transactions were disclosed to the SBP and SBP was able to collect information of these forex transactions and regulate its foreign exchange position by keeping a watch over inflow and outflow of forex both into and out of Pakistan. According to the learned Standing Counsel, KKI, which was run by the applicants as Directors/Partners, created a parallel website known as www.clickpk.net which was not authorized by the SBP. This was an illegal website through which hundreds of illegal transactions took place about which the SBP had no knowledge. Learned Standing Counsel submitted that in effect KKI was using the illegal Hawala system, which was bypassing the SBP regulations and were causing colossal losses to SBP and the national exchequer in terms of forex.

20. In a nutshell, learned Standing Counsel submitted that there was sufficient evidence to show that www.clickpk.net had been established by the applicants and that benami accounts belonging to others had been established by the applicants and operated by others through the applicants and that there was evidence gathered showing that there was a nexus between the www.clickpk.net and the applicants. In particular he pointed to the relationship between KKI and Kalsoft a sister company of KKI which had been used to purchase the sophisticated equipment needed to carry out the parallel website

21. In support of his contentions, learned Standing Counsel took the Court through various portions of 161, Cr.P.C. statements which confirmed that the benami accounts had been opened in the names of employees of KKI without there knowledge and had been operated by the applicants without there knowledge. That www.clickpk.net had been set up by and was controlled by the applicants for the specific purpose of running an illegal banking system in parallel with there authorized website. In particular, he pointed out the statements recorded under Section 161, Cr.P.C. which showed that the applicants had purchased the computer equipments (software) to enable them to run a parallel website and pinpointed the role of Amir Zakaria, who was an employee of KKI, who had opened and had operated many of the benami accounts. He further submitted that the documents on record show the link with the applicants to Messrs Polani Enterprises and Messrs Global Village Exchange through their shared directorships and relatives which were companies involved in the scam.

22. In respect of under invoicing, learned Standing Counsel, in particular, referred to transactions in respect of M/s Camozzi, and ran the court through various documents connecting the under invoicing to both KKI and M/s Al-Zarooni Exchange, UAE, which, according to him, was sister company of KKI, which was operating in Dubai, UAE and was the hub of the Dubai end of the Hawala operation. According to him other documents disclosed that there were six similar separate sets of transactions concerning such under invoicing involving different companies. Again the net result of such transactions was the loss of precious forex to Pakistan.

23. With regard to the jurisdiction of Ordinance, 1984, learned Standing Counsel submitted that this was covered by preamble to the Ordinance and that all the sections applied by the prosecution are already given in the first schedule of Ordinance, 1984 and that the Special Court had jurisdiction in this matter. He further contended that the rule of consistency does not apply in this case as the case of the applicants is on different footings to that of the others, who had already been granted bail by this Court in this case. In those cases, he submitted the bankers had played a minor role whereas the applicants were the main beneficiaries of the scam.

24. Learned Standing Counsel further contended that bail is not a matter of right and that the applicants cannot rely on the technical ground that the offences, with which the applicants are charged, do not fall under Ordinance, 1984 because they had not been listed as scheduled offences in the FIR. He also stated that this case was a heinous crime and the applicants are not entitled to the concession of bail. He has placed reliance on the following case law in support of his submissions:-

(i) HAQ NAWAZ MALIK v. STATE (2002 P.CR.L.J. 739);

(ii) PROVINCE OF PUNJAB v. MUQARAB ALI (2008 SCMR 572);

(iii) MUHAMMAD HAYAT v. STATE (1999 P.CR.L.J. 1352);

(iv) TUBBASAM AHMED QURESHI v. STATE (2000 P.CR.L.J. 105);

(v) KHALID HUSSAIN v. KALA KHAN (2004 P.CR.L.J. 1080);

(vi) MUHAMMAD AZIZ v. KAMAL KHAN (2001 SCMR 1727);

25. We have carefully reviewed the documents on record and considered both the written and oral arguments of learned counsel as well as the authorities cited by them.

26. We would like to deal with each of the issues one by one as follows:-

COMPLAINT:

27. We find no merit in the contention of the applicants’ advocate that the inquiry has not been initiated on a complaint made by the SBP. By letter dated 11.7.2008, the Governor, SBP wrote to the Advisor to the Prime Minister on Interior & narcotics Controls, to take action against illegal foreign exchange operators. The contents of the said letter are reproduced herein below:-

“Dear Malik Sahib,

Subject: Action against Illegal Foreign Exchange Operators

I would like to draw your attention to an issue of critical importance especially backdrop of current crisis in exchange markets. Given complications and recent press the exchange markets, SBP has taken a number of steps including measures to unauthorized and illegal flight of capital. However, with the tightening of our rules and regulations governing banks and exchange companies, it is being apprehended that desirous of undertaking foreign exchange transactions which are otherwise not permitted may resort to unauthorized and illegal operators.

With a view to stop these illegal operators, I request you to kindly advise the related agencies to initiate a special law-enforcement action campaign against the illegal foreign exchange operators in Pakistan. I and my staff from the Exchange Policy Department very happy to provide any assistance in the matter. (italics added)

With best regards,

Yours sincerely

Sd/-

Mr. Rehman A. Malik Dr. Shamshad Akhtar

Advisor to the Prime Minister

On Interior and Narcotics Controls

Government of Pakistan

Islamabad.”

28. This letter is a general authorization made by the SBP to the Ministry of Interior (“MoI”) to carry out inquiry against any foreign exchange operator in Pakistan as, more particularly, mentioned in the last paragraph of the aforesaid letter. Thus, as the FIA falls under the control of MoI we are of the view that the inquiry has been initiated by the FIA against the applicants in accordance with law.

JURISDICTION:

29. Ordinance IX of 1984 in its preamble states as under:-

“WHEREAS it is expedient to provide for speedy trial of certain offences committed in respect of banks and for matters connected therewith or incidental thereto”. (italics added)

30. Under Section 2(a) of Ordinance, 1984, it is true that KKI, of which the applicants were Partners/Directors, does not fall within the definition of Bank for the purposes of Ordinance of 1984. KKI is a licensed Exchange Company

31. Ordinance 1984 , however, in its preamble makes it clear that Ordinance, 1984 should cover offences committed in respect of banks and for matters connected therewith or incidental thereto (italics added). The documents, on record, reveal that a large part of the allegedly illegal transactions involved the illegal and fraudulent opening and operation of various bank accounts in Banks covered by the definition of Section 2(a) with various bank managers of such banks having also been charged for their involvement in the same case. In our view, therefore, the matter is directly connected to offences committed in respect of Banks.

32. Furthermore, based on the ejusdem generis rule, it can be said that the transactions or documentation used in the commission of the alleged offences are matters which are connected with or incidental to offences committed in respect of Banks and, therefore, also fall within the purview of Ordinance 1984.

33. The cases relied upon by the applicants counsel are distinguishable on the basis that in none of those cases was the business of the accused in anyway involved in the business of banking, the bank was simply used to facilitate its transaction. In this case, however, the applicants’ license(s) as an Exchange Company is closely connected with the whole banking system through its dealings with forex. The applicants could not even engage in such business without a license from the SBP which is the main regulator of the banking system in Pakistan.

34. In this respect we would refer to KKI’s own webpage which in part states as under:-

“To evolve a documented economy, in 2003, State Bank of Pakistan converted money changers throughout the country into exchange companies. Under the rules and regulations stated by SBP, all the exchange companies have been granted permission to make home remittance transactions, making of traveler’s cheques, issuing demand drafts besides the core business of currency exchange catering the customers at national and international levels. KKI sincerely embraced the decision and holds the privilege to stand among the early birds to get the exchange company license by SBP.(italics added)

……………………………………………………………………

Keeping in front, the importance of economic stability for the country, KKI has and will always work for the betterment of the country with respect to its services and innovative marketing techniques. We affirm that we will Inshallah, play a major role in increasing the nations foreign exchange reserves to a massive volume in the coming days through our efforts and will play an effective role in combating against money laundering along with our central bank. As always, KKI will be a step ahead in taking every necessary step to make rules, regulations and policies, which may leave no stone unturned to safe guard against money laundering and all money related crimes. KKI also believes that the world has changed so much that the traditional way of doing business will not help individuals or even the nations way longer towards the way to progress and prosperity. KKI believes that the use of IT in its business will introduce new horizons of working for the company, will improve its efficiency and in return the customers will get best possible services, IT based transaction facilities ensuring their maximum security, benefits and best returns.”(italics added)

35. In order, however, for the offences to be tried under Ordinance, 1984 another hurdle must be crossed i.e. that the offence must be a scheduled offence as set out in Section 2(d) of Ordinance, 1984.

36. Under Section 2(d) of Ordinance, 1984, scheduled offences are specified in the First Schedule and are alleged to have been committed in respect of or in connection with the business of the bank. The following sections in the FIR namely 420,467,471, 477-A, PPC, are all scheduled offences under the first schedule and as such we find that the above Offenses so charged are all triable under Ordinance, 1984.

37. With regard to the offenses themselves, we find little merit in the applicants’ contention that the actions carried out by the applicants/accused do not come within the purview of these sections. The Sections 420,467, 471,477-A/34, PPC, cover cheating, forgery, falsification of accounts and acts done by several persons, and the documents on record indicate that the actions of the applicants if proven would amount to at least some of the offences so charged. Even then the appropriate forum to agitate the non applicability of these sections is before the trial court and not at the stage of bail.

38. With respect to the question of any loss which the banks may have suffered we do not agree that the banks suffered no loss. The whole banking system of Pakistan (as regulated by the SBP) of which the banks form part suffered a loss on account of the applicant’s actions not only financially but also in terms of reputation and standing. The entire banking system, which in the wider sense in our view includes all such entities governed or supervised by the SBP including Money Exchanges through the actions of the applicants was manipulated and may have been subject to loss.

DOCUMENTS (including S.161 statements)

39. It has been vehemently argued by learned counsel for the applicants that the entire case of the prosecution is based on documents, which have no evidentiary value, have been obtained through coercion and are unreliable being contradictory and suspicious in many instances in terms of dates and signatures. The applicants claim that some of these documents have been pre-prepared by the FIA with the alleged maker being coerced into signing the same.

40. Furthermore, according to the learned counsel for the applicants since all the documents have been illegally acquired through an illegal search and seizure process in breach of the relevant legal procedures they must be excluded from the trial. In this event, there will be no case against the applicants and, therefore, the applicants are entitled to bail.

41. In addition to the earlier authorities cited on this point learned counsel for the applicants has placed reliance on the unreported order passed by this Court in Special Criminal Bail Applications Nos.50 to 52 of 2004 titled as MEHBOOB KUKASWADIA v. STATE, whereby he alleged that at the time of bail the question of the legality of the search and seizure can be considered.

42. In our view the above referred unreported case is distinguishable on the ground that there was an illegal search of a person as opposed to a premise and the alleged illegal search was not the primary reason for the granting of bail in that case. Furthermore, in that case no mention was made of excluding any of the evidence recovered on account of the illegal search of the person.

43. If we were to exclude all the documents, as prayed by the applicants, this may lead to the collapse of virtually the entire prosecution case prior to the trial. Since this is a white collar crime it is not unusual that most of the evidence is of a documentary nature. In our view, for a High Court to rule upon the admissibility of documents prior to the trial would amount to usurping the right of the trial Court to try the case under the appropriate laws of procedure and evidence as laid down in Cr.P.C. and the Qanoon-e-Shahadat Order, 1984.

44. In our view, the question of dealing with the admissibility, legality, proof of documents should, at the first instance, be determined by the trial Court, especially, in cases of a white collar crime, which are largely based on documents which may need to be proved through witnesses.

45. Furthermore, during a bail application the court is only entitled to make a brief review of the case file in order to determine whether a prima facie case has been made out not to look into such details as the admissibility of documents, the manner of there seizure etc which are all matters which are to be properly adjudicated upon by the trial Court at first instance. Reliance is placed on the case of FATIMA v. ABDUL MAJID (2004 YLR 400) which reads at page 404 as follows:-

“It would be seen that in matters concerning bail the pristine principle to be followed by Courts is that the exercise to be carried out by the Court is a preliminary one and is restricted to a tentative sifting of the evidence on the record as opposed to an elaborate sifting of the same. In this regard reference can be made to Khalid Javed Gillan v. The State PLD 1978 SC 256 and Saeed Akbar v. Gul Akbar 1996 SCMR 931. Such principle as laid down by the Honourable Supreme Court is a salutary one which would leave the detailed appreciation of evidence to the trial Court so as not to embarrass the trial of the accused at the bail granting stage.

46. As such, we do not consider it appropriate to delve into the question of admissibility/exclusion/proof of documents at this premature stage of the trial and for the purposes of this bail application we will treat the documents on face value.

47. Learned counsel for the applicants has cited the following authorities on the point of proof of documents through modern devices. Once again we consider that the appropriate forum, at first instance, for such arguments to be made is before the trial court at the time when the Prosecution seeks to admit the document into evidence.

(i) SIRAJUDDIN v. G.M. KHAN (1990 CLC 331);

(ii) GHULAM ALI v. HASHUM (1986 CLC 1165);

(iii) HAKIM ALI BHATTI v. ABDUL HAKIM (1986 CLC 1784).

RULE OF CONSISTENCY:

48. It is true that some of the accused in this case have already been granted bail and on this basis the applicants claim to be entitled to bail on the ground of rule of consistency. Each case, however, will turn on its own particular facts and circumstances.

49. In our view, the case of the applicants is distinguishable from the other accused, who have already been granted bail by this Court in this case. This is because, in our view, a tentative review of the documents on record, indicate that the applicants were the masterminds behind the scam and that the bank managers/employees, who have been granted bail, were only minor figures/scapegoats. The role and level of participation between the applicants and the bank managers/employees, who had been granted bail, therefore, stands on an entirely different footing. As such the rule of consistency is not applicable based on the facts and circumstances of this case.

REASONABLE GROUNDS/FURTHER INQUIRY:

50. As we have held that Ordinance 1984 is applicable the offenses become non bailable for which the requirements of the proviso of S.497 (2) need to be satisfied in order for the applicants to be granted bail.

51. Section 5(6) of Ordinance, 1984 reads as under:-

“5. Procedure of a Special Court. (1) ………..………………..

(2) ………………………………………………………………...

(3) ………………………………………………………………...

(4) ………………………………………………………………...

(5) ………………………………………………………………...

(6) An accused person shall not be released on bail by a Special Court, or by any other court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence, nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released.” (italics added)

52. The proviso to Section 497(2), Cr.P.C. reads as under:-

“497. When bail may be taken in cases of non-bailable offence. (1) ……………………………………………………….

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him a bond without sureties for his appearance as hereinafter provided.” (italics added)

53. In the case of GHULAM HUSSAIN v. STATE (1990 P.Cr.L.J. 577), although not in respect of a bail application, prima facie case was defined as under:-

“Prima facie case which has not been defined anywhere means a case where charge against the accused is not groundless and there was a ground to proceed against him.”

54. In essence, in order for bail to be denied, the prosecution needs to establish reasonable grounds/prima facie that the accused has committed the offense and that it is not a case of further inquiry.

55. In the case of SIKANDAR A. KARIM v. STATE (1995 SCMR 387), which was concerned with the grant of bail, under the proviso to Section 497(2) Cr.P.C. reasonable ground was defined as follows:-

“Reasonable ground is an expression which connotes that the grounds be such as would appeal to a reasonable man for connecting the accused with the crime with which he is charged, “grounds” being a word of higher import than “suspicion”. However strong a suspicion may be, it would not take the place of reasonable grounds. Grounds will have to be tested by reason for there acceptance or rejection .The reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the court, as it may possess or is expecting to possess as demonstrating evidence available in the case both direct and circumstantial . If such grounds exist tending to connect the accused with the crime, bail should be refused, without the need to go into a deeper appreciation of the merits of those grounds and the evidence on which they are rested, which functions are to be assumed at the trial stage. However, if it is found that the charge is groundless, that is, to say unsupported by any evidence or instead of the grounds being reasonable, their absurdity stands exposed on a plain view, or the charge on its face value is reduced to a minor one which is not punishable with death or transportation for life, as for example where it is a case of accidental and unintended death caused by simple hurt, the limitation on the Courts’ discretion is in favour of the grant of bail.” (italics added)

56. In the case of TARIQ BASHIR v. STATE (PLD 1995 SC 34) the reasonable grounds are defined at page 41 as under:-

“8. The case-law on the subject of bail is very much clear that the bail order must be carefully balanced and weighed in scale of justice and requirement of relevant law. Reasonable grounds mean grounds which appeal to a reasonable and prudent man.”

57. It was also held by the Hon’ble Supreme Court in the above case as under:-

“7. As regards the first category of offences (punishable with death, or imprisonment for life, or with ten years’ imprisonment) the provisions of section 497(1) are not punitive in nature. There is no concept of punishment before judgment in the criminal law of the land. The question of grant of bail is to be determined judiciously having regard to the facts and circumstances of each case. Where the prosecution satisfies the Court, that there are reasonable grounds to believe that the accused has committed the crime falling in the first category the Court must refuse bail…….”

58. As regards further inquiry, there is no hard and fast rule on this matter and each case will turn on its own particular facts. Reliance is placed on GHULAM ABBAS v. STATE (2005 P.Cr.L.J. 244 relevant at 247) as follows:-

“Section 497(2), Cr.P.C. provides that if it appears to the Court at any stage that there are no reasonable grounds for believing that accused committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, such accused shall be released on bail. Now what will continue as sufficient grounds for further inquiry would depend upon peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Every hypothetical question which can be imagined would not make it a case of further inquiry simply for the reason that it can be answered by the trial Court subsequently, after evaluation of evidence. The condition laid down in clause (2) of section 497, Cr.P.C. is that there are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charge.” (italics added)

59. Further, the mere possibility of further inquiry exists in nearly all bail related cases. Reliance is placed on PARVEEN AKHTAR v. STATE (SCMR 2002 1886 relevant at 1888) as follows:-

“We have heard learned counsel for the parties and have also gone through the record, which has been made available for our inspection by learned Assistant Advocate-General. It may be noted that as per the statement of P.W-Amir who received injuries during the incident, it was Shehzad who had fired upon Asghar Hayat Constable. Besides, in the F.I.R. Shehzad was named as an accused and responsible for commission of the offence. Undoubtedly, in such-like cases, it is said that accused has made out a case of further inquiry. In view of the law laid down by this Court in the case of Asmatullah Khan v Bazi Khan and another (PLD 1988 SC 621) merely for such reason accused would not be entitled for grant of bail because mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one under section 497(2), Cr.P.C . After having gone through the statement of P.W. Amir and taking into consideration the material on record, we are of the opinion that respondent No.2 was not entitled for grant of bail on the ground of further inquiry because there is overwhelming evidence against him to prima facie connect him with the commission of crime. Therefore, learned High Court while granting bail to respondent No.2 had not exercised its jurisdiction properly keeping in view the principle laid down by this Court in the case of Asmatullah Khan (ibid).” (italics added)

60. On the point of further inquiry the relevant portion from the case of HAZURDAD v. SAJID KHAN (1998 P.Cr.L.J. 633) reads as under:-

“7. it is now well-settled that a case would only fall, within the scope of further inquiry, under section 497, Cr.P.C. if the Court reaches a conclusion that on the material before it there are no reasonable grounds for believing that the accused is guilty of a non-bailable offence punishable with death, imprisonment for life or 10 years. In other words, in the absence of a finding to this effect there would be no occasion to hold that the case is that of further inquiry.”

61. Again on the point of further inquiry the relevant portion from the case of ABDULLAH SHAH v. STATE (2002 P.CR.L.J. 1387) reads as under:-

“I may observe here that every hypothetical question which may creep into the mind and which could be resolved only after recording the evidence and during the trial would not make the case that of further inquiry. The case of further inquiry would only be made out when the data collected by the prosecution is not sufficient to provide reasonable grounds for believing that a prima facie case existed against the petitioner.”

62. In our view, based on the above definition of reasonable grounds/prima facie case, through a tentative review of the various S.161 statements and other documents, relied upon, the prosecution has been able to establish a nexus between the applicants and www.clickpk.net, which was the illegal website, which was allegedly used in order to carry out this forex scam and has thus made out a prima facie case against the applicants.

63. This nexus can in particular be seen through the alleged close inter relations/connections between the directors/shareholders and family of KKI and Kalsoft which was the company allegedly used to purchase the equipment used to create the website which enabled the illegal parallel banking system to be carried out allegedly side by side in the same office as the legal business of money changers. In this respect corroboration was provided by the Section 161 statements and it was significant that a large part of the evidence had been seized after it had allegedly been moved (presumably to hide it) from KKI’s head office to the vaults of another sister company of KKI named Kalia Security Vault Corporation. In our view this is not a case of further inquiry which as indicated above could be stretched to apply to nearly all bail cases under the proviso to Section 497(2) Cr.P.C. The allegations against the applicants based on the documents on the Special Courts file are certainly not groundless.

64. In particular, the relationship between the applicants in KKI and Kalsoft, as alleged by the State, in terms of family relations, directorships and shareholdings are especially revealing, as indicated in the table, provided by the State, which is setout below:-

Names & Relation of “Directors” between M/s Khanani & Kalia International (Pvt.) Limited (KKI), accused company and its Sister Concern M/s Kalsoft (Pvt.) Limited (Kalsoft), who prepared and installed legal Website “Remitton” and its Replica i.e. illegal Website “Clickpk”, side by side in same Server Room/Office of KKI in Saima Trade Tower, I.I. Chundrigar Road, Karachi.

M/s Khanani & Kalia International (Pvt.) Limited (Accused Company):

S #	Name of Director	Designation	Relation with Applicant/Accused
1.	Muhammad Hanif S. Kalia	Director & Chairman	Self and Brother of applicant/accused Abdul Munaf Kalia
2.	Abdul Munaf Kalia	Director & Chief Executive	Self and Brother of applicant/accused Muhammad Hanif S. Kalia
3.	Muhammad Javed Khanani	Director	Self
4.	Muhammad Iqbal Kasbati	Director Finance	Absconder

M/s Kalsoft (Pvt.) Limited:

S #	Name of Director	Designation	Relation with Applicant/Accused
1.	Khurram Hanif S. Kalia	Director & Chief Executive	Son of accused Muhammad Hanif S. Kalia and Nephew of accused Abdul Munaf Khan
2.	Owais S. Kalia	Director	Brother of accused Muhammad Hanif S. Kalia and Abdul Munaf
3.	Sikandar S. Kalia	Director	-do-

Names and Relation of Share Holders between accused Company M/s Khanani & Kalia International (Pvt.) Limited (KKI) and its Sister Concern M/s Kalsoft (Pvt.) Limited (Kalsoft), who prepared and installed legal Website “Remitton” and its Replica i.e. illegal Website “Clickpk” side by side in same Server Room/Office of KKI in Saima Trade Tower, I.I. Chundrigar Road, Karachi.

S #	Name of Share Holder	Relation with Applicant/Accused	No. of Shares in “KKI”	No. of Shares in “Kalsoft”
1.	M. Hanif S. Kalia	Self & Brother of Applicant Abdul Munaf Kalia	162,500	65,000
2.	Muhammad Owais S. Kalia	Brother of applicant M. Hanif S. Kalia & Abdul Munaf Kalia	100,000	65,000
3.	Khurram Hanif Kalia	Son of applicant M. Hanif S. Kalia	87,500	73,500
4.	Mrs. Mumtaz Hanif S. Kalia	Wife of applicant M. Hanif S. Kalia	156,250	36,000
5.	Muhammad Sikandar S. Kalia	Brother of applicant M. Hanif S. Kalia and Abdul Munaf Kalia	100,000	65,000
6.	Mrs. Fouzia Owais Kalia	Wife of Owais S. Kalia	120,750	36,000
7.	Abdul Munaf S. Kalia	Self (Applicant)	156,250	65,000
8.	M. Iqbal Kasbati	Absconder	18,750	22,500
9.	Mrs. Afshan Sikandar Kalia	Wife of Sikandar S. Kalia	191,750	36,000
10.	Mrs. Naila Munaf Kalia	Wife of applicant Munaf S. Kalia	156,250	36,000
11.	Muhammad Javed Khahani	Self & brother of absconding accused Altaf S. Khanani	312,500	---
12.	Altaf S. Khanani	Absconding accused and Brother of applicant Muhammad Javed Khanani	312,500	---
13.	Mrs. Azra Sultana	Wife of applicant Muhammad Javed Khanani	312,500	---
14.	Mrs. Shenila Altaf	Wife of absconding accused Altaf S. Khanani	312,500	---
Total			2,500,000*	500,000**

* According to Form-A, Annual Return of Company having Share Capital as on 20.10.2008 of M/s Khanani & Kalia International (Pvt.) Limited is:

Authorized Share Capital
Type of Shares	No. of Shares	Amount	Face value
Ordinary Shares	5,000,000	500,000,000	100 each

Paid up Share Capital
Type of Shares	No. of Shares	Amount	Issue Price
Ordinary Shares	2,500,000	250,000,000	Rs.100 each

** According to Form-A, Annual Return of Company having Share Capital as on 31.10.2008 of M/s Kalsoft Limited is:

Authorized Share Capital
Type of Shares	No. of Shares	Amount	Face value
Ordinary Shares	1,000,000	100,000,000	100 each

Paid up Share Capital
Type of Shares	No. of Shares	Amount	Issue Price
Ordinary Shares	500,000	50,000,000	Rs.100 each

65. Furthermore, this case can be regarded as a one of heinous nature as it not only involves huge sums of money but and such offences, if proven, are against the interest of Society. In this respect we note that in such circumstances bail has even been denied in bailable offences. Reliance is placed on the case of MUHAMMAD ZARAT KHAN v. STATE (PLD 2007 Karachi 29), which reads at page 48, as under:-

“The Hon’ble Supreme Court observed that a distinction is to be made between an offence which is committed by an individual like theft and an offence which is directed against the society for a whole for the purpose of bail. In the former cases practice to allow bail in cases not falling under prohibitory clause of section 497, Cr.P.C. in the absence of an exceptional circumstances may be followed, but in the later category, the Courts should be strict in exercise of discretion of bail. It was further held that the above category of offenders belong to a distinct class and they qualify to be treated falling within a exceptional circumstance of the nature warranting refusal of bail even where maximum sentence is less than 10 years R.I. for the offence involved, provided the Court is satisfied that prima facie, there is material on record to connect the accused concerned with the commission of the offence involved.”

66. Although this case is not strictly a corruption case, it nevertheless deprived the SBP (and the Country) of potentially millions of US$ of foreign exchange and potentially disturbed the already tenuous economic position of the country which was indicated in the earlier referred to letter of the Governor of the SBP requesting the Ministry of Interior to investigate this type of case, and as such we are, therefore, fortified by the findings in SHAMREZ KHAN v. STATE (NLR 1999 264), relevant portion of which reads as under:-

“13. From the above discussion, prima facie a case is made out against the applicant wherein huge amount has been misappropriated causing loss to the exchequer. It may be added that corruption at this higher level has become so rampant in almost every institution of the country and the wealth of the country has been ruthlessly plundered due to which country is at the verge of an economic collapse. It is high time to curb this evil in every nook of this society to save the country from further economic disaster, therefore, the applicant does not deserve any leniency. In this regard reliance is made to Sajjad Hussain v. The State (PLD 1997 Karachi 165) wherein while dealing with a similar case it was observed as under:-

“While following the above principles it would also be relevant to consider that our nation is overwhelmed with avalanche of corruption under whose weight it is being relentlessly crushed. Man, philosophers have said, is born innocent, it is the institutions of society that spoil him. Whatever the truth in the observation, we seem to have institutionalized corruption. The bloody putrescence of the virus oozes out of every pore of the body politic and every segment of national life, be it government, politics, business, law, medicine, health or education. The landmark judgment of the Hon’ble Supreme Court reported as Aljehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Kheri and others v. The Federation of Pakistan and others. (PLD 1996 SC 324) (popularly known as the Judges’ case) has raised hopes that the Court will now play a significant role in eradicating corruption and other social evils. Therefore, it is humbly submitted that in such a situation a more pragmatic approach than has been the case so far on the part of the Courts is needed at the investigation as well as bail stages of corruption cases, because if the Courts show almost motherly leniency towards people accused of high corruption, then it would be impossible to successfully investigate and help bringing the culprits to book or to check the ever-increasing cancer of corruption.” (ialics added)

67. On the point of serious allegations of fraud and forgery which is directly on point in this case reliance is placed on the case of MEHRBAN ALI v. STATE (2004 SCMR 229), relevant part reads as under:-

“After having gone through the entire record we are of the considered view that very serious allegations of fraud, forgery and extortion have been leveled which are not without substance. The complainant has been allegedly deprived from immovable property worth whereof runs into lacs on the basis of forgery and fake documents allegedly prepared by the petitioner. There is no denying the fact that power-of-attorney was executed in favour of the petitioner by the complainant which was subsequently withdrawn for certain obvious reasons. A careful scrutiny of the record is demonstrative of the fact that prime facie a case is made out against the petitioner and the order impugned does not call for any interference.”

68. Furthermore, where the offense is non bailable and not as of right the court needs to be more cautious in granting bail. Reliance is placed on the case of FATIMA v. ABDUL MAJID (2004 YLR 400), which reads at page 405 as under:-

“…..in cases where the prescribed punishment is ten years, life imprisonment or death, the Court has to be very careful while granting bail to the accused. In such cases since bail is not a matter of right, the Court has to give a definite conclusion that the case is one of the further inquiry on the basis of which prima facie the accused cannot be connected to the crime..”

OTHER ARGUMENTS (bail as a punishment, benefit of doubt, newspaper cuttings, same offenses)

69. We have no cavil with the settled proposition of criminal law, as contended by the learned counsel for the applicants that bail cannot be used as a punishment and that the benefit of doubt should be given to the applicants. However, we do not consider in this case that bail has been denied as a punishment or that there is any benefit of doubt which needs to be applied to applicants at this stage since we are of the view that the prosecution have made out a prima facie case against the applicants under Sections 420,467,471,477-A/34, PPC.

70. With regard to question of the State failing to rebut the newspaper reports, we agree that if unless rebutted according to the Hon’ble Supreme Court in the case of SUPDT. OF POICE v. MUHAMMAD LATIF (1988 SC 387), these stand proved, however, based on the facts and circumstances of this particular case, we consider that even if the newspaper reports are taken into account they do not show that the prosecution have failed to establish a prima facie case. Furthermore, it would be unreasonable to expect investigators to waste valuable time and money to go each day through each and every newspaper in order to rebut every minor detail of their investigation. Notably, in this case only one newspaper cutting was brought to our attention.

71. With regard to the question of the proposition that three similar offenses have been charged under three different laws, the law carrying the lesser sentence should apply for the purposes of bail, we do not consider the offenses as being the same. This is because FERA, 1947 mainly relates to Forex, PECO, 1997 relates to electronic crimes whilst Ordinance, 1984 relates to offenses in respect of Banks all of which crimes are distinct. Furthermore, the cases cited by the applicant on this point are all distinguishable on the basis that none of them involved crimes against society and were not of such extreme gravity/scale.

72. Even if it could be argued that all the offenses are of a similar nature we consider it both unjust and absurd that for the heinous and serious nature of the offenses charged in this case a maximum sentence of 2 years under FERA, 1947 would apply. FERA was passed in 1947 when there was limited dealing in forex and the forex/money markets in Pakistan were virtually non existent. Entities like Stock Exchanges, Money Exchanges, Brokerage Houses were virtually unheard of. White collar crime on the scale and sophistication as takes place today would not have been contemplated by the authors of FERA, 1947.

73. The law must evolve to meet the needs of an ever changing and developing society. It needs to be dynamic, not statistic. Although this matter does not relate to the Constitution, we consider the citation below appropriate, as, in our view, all laws, not just the Constitution, should evolve so as to be responsive to the needs of an ever changing society and the Global environment which we now live in. In the case of SHARAF FARIDI v. FED. OF ISLAMIC REPUB. OF PAKISTAN (PLD 1989 Karachi 404), at page 438 it was held as under:-

“The Constitution is a living document which reflects the aims and aspirations, genius and genesis, temper and thinking of the people. Here I would refer to a classifiable observation of my Lord the Chief Justice Muhammad Haleem in Benazir Bhutto’s case PLD 1988 SC 416 that “the Constitution is not merely an imprisonment of the past, but is also alive to the unfolding of the future”. It is “law of the Laws”.”

74. Offenses of such a serious nature (as in this case) having a huge impact on society as a whole and in this case potentially destabilizing its already fragile economy, in our view, would even otherwise qualify as an exception to the general proposition that where similar offenses are charged in respect of more than one act the lesser penalty must apply. In our view, the Court must in such cases consider the maxim of the “punishment fitting the crime” and should consider under which law to proceed and be used as a basis of granting bail keeping in view the gravity of the offense and whether it is a crime against an individual or society as a whole.

75. In “Criminal Law” by Smith and Hogan (5^th Ed) at Page 10 when dealing with sentence/punishment to fit the crime it was stated as under:-

“While it is clear that there is no single sentence which is normal for a particular category of crime—for example—rape—there is certainly a “tariff” in the sense of a range within which a sentence will be regarded as normal for that category and outside of which it will be regarded as abnormal”

76. Would the people of Pakistan expect or consider as normal a maximum sentence of only two years in a case such as this were it proven against the applicants? In our view the answer must be in the negative.

77. Should this case be proven against the applicants it would amount to a huge breach of trust against not only the SBP but also the entire country. The applicants through their company KKI were entrusted by the SBP to carry out their functions in accordance with the law. Such a breach of trust would have been against the very regulator i.e. SBP, of the banking industry in Pakistan.

78. It is notable that, at this point in time, in other jurisdictions where fraud of such magnitudes are taking place which involve a breach of trust in terms of deterrence Courts are passing sentences to reflect the gravity of the crime. For, example, in the recent USA fraud case (although far larger in monetary value than this case, but not concerning a breach of trust against the State) the accused, Mr. Bernard Madoff on conviction despite his old age was on 29^th June 2009 sentenced to 150 years in jail due to his massive breach of trust against individual investors. Pakistan too, must move with the times in dealing with white collar crimes of such gravity.

79. Such conduct in our view must be deterred. It is notable that even in the case of MUHAMMED ALI v. STATE (2008 P.Cr.L.J. 1360) which involved a much more minor matter in illegally using other persons’ ATM cards it was stated as under:-

“Allegation against the accused is of a serious nature, therefore, we agree with learned D.A.G that to discourage the people having such tendencies they should not be released on bail on technical grounds.”

80. Based on the facts and circumstances of this case, it would be wholly inappropriate for the maximum sentence in FERA, 1947 to be used as a yardstick for granting bail.

81. In addition, though not raised before us, it should also be borne in mind that Altaf Khanani, the real brother of applicant No.3-Muhammad Javed Khanani, has already absconded in this case, that the applicants have contacts in Dubai and other countries, are wealthy and influential persons and faced with the gravity of such charges and evidence against them they may also be inclined to abscond. Furthermore, since some of the Section 161 statements have been recorded by former employees the potential of the applicants interfering with witnesses and even with documents which in many cases have been stored electronically cannot be ruled out especially as it seems that the applicants had already attempted to hide some of the incriminating documents at Kalia Security Vault Corporation

FINDINGS:

82. At this stage, we find it premature to interfere with the Impugned Order. In our view the prosecution has made out a prima facie case against the applicants and as such bail is denied to all the applicants.

83. We are, however, mindful that the applicants have already spent about eight months in custody and they have a concern that since this case involves a large number of documents the trial may take a long time to complete.

84. Since the trial is being proceeded with under Ordinance, 1984, which, in its preamble, stipulates for speedy trial of the offences, we would expect, in any event, that the trial be proceeded with expeditiously. However, notwithstanding that fact we direct the trial Court to:

(i) At the earliest opportunity deal with the question of admissibility of documents.

(ii) To complete the trial of the applicants within six months from the date of this order.

85. We would like to make it clear that the above discussion and findings are only tentative in nature and will not influence in any way the trial Court in reaching a just and fair decision based on the evidence adduced at trial.

Criminal Bail Application No.571 of 2009 is dismissed in the above terms.

Judge

Karachi,

Dated: ____.7.2009. Judge