Constitutional Petition No

ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Constitutional Petition No.D-2550 of 2009

Date order with signature of Judge

Before: Mr. Justice Gulzar Ahmed & Mr. Justice Irfan Saadat Khan.

17^th December 2009.

Mr. Naeem Akhtar Khan, Advocate for the petitioner.

Mr. Muhammad Arif Khan, Spl. Prosecutor General, NAB.

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GULZAR AHMED, J.:- By this petition, petitioner has sought grant of bail to him, who has been implicated in NAB Reference No. 09 of 2009 pending in the Accountability Court Sindh at Karachi.

Learned counsel for the petitioner has contended that there were two bank accounts; one in the name of M/S. S. Tooba Enterprises, which belonged to Shabana Perveen the wife of the petitioner and another Joint Account of the petitioner and his wife maintained at HBL Garden Branch, Karachi and that the main accused Fawad Ahmed Batra, who was the Manager of said branch received all cash from the bank customers and also made payment to customers of the bank on receipt of cheques from them. He has contended that there is no evidence on the record to support the allegation that the petitioner was in any way involved in commission of the crime of misappropriation of bank customers’ funds. He has further contended that an enquiry was conducted by HBL in which no proceeding was taken against the petitioner and the case is of further enquiry. He further contended that in terms of Section 16 of NAB Ordinance the case has to be decided within thirty days and bail cannot be refused as a matter of punishment and the petitioner being in custody for one month and the case has not proceeded, on this account also the petitioner is entitled to grant of bail and in support of his such submissions he has relied upon the cases of CH.ZULFIQAR ALI V/S THE STATE (PLD 2002 SC 546), FARHAD SAJID V/S NATIONAL ACCOUNTABILITY BUREAU ISLAMABAD & 2 OTHERS (2008 P.Cr.L.J. 910) and case of NADEEM MAJEED V/S THE STATE AND OTHERS (2007 SCMR 1958).

On the other hand, learned Special Prosecutor General, NAB has contended that the petitioner was in active connivance with the main accused as well as Shah Habib in defrauding the funds of bank customers and stated that the statement under Section 161 Cr.P.C. of prosecution witnesses namely Muhammad Umar Niaz, Siddique Memon, Muhammad Maroof, Syed Akmal Hussain, Syed Iqbal Ahmed, Bakht Nasar Rathor and Baqar Hassan fully implicate the petitioner in commission of crime. He has opposed the grant of bail to the petitioner.

We have considered the submissions made by learned counsel and have gone through the record.

The allegation against the petitioner is contained in para 11 of the NAB Reference, which is as follows:

“11. That accused Syed Maqsood Ahmed was working as Assistant at HBL Garden Branch. He was posted at HBL Garden Branch since 01-04-2002 till 12-08-2006. During investigation it was unearthed that account No. 285773-03 under tile M/s. S.Tooba Enterprises and Shabana Perveen & S. Maqsood Ahmed (Joint Account No. 2727-04 were used in this case of misappropriation of bank funds. Cash amount and proceeds of other parties’ cheques were realized in these accounts as some instances have been witnessed. There is link between M/s. S.Tooba Enterprises account and Shah Habib account as mostly cheques were withdrawn from M/s. S. Tooba Enterprises in favor of Shah Habib account. As stated by Syed Maqsood Ahmed during investigation that he got opened the account of M/s S.Tooba Enterprises through his wife Mrs. Shabana Perveen for the purpose of his private business but later on this account was used and controlled by the main accused Fawad Ahmed Batra and he was only signing the cheques given to him by Fawad Ahmed Batra. As such Syed Maqsood Ahmed committed the offence defined under Section 9(a)(xii) read with section 468, 477A PPC, schedule offices of National Accountability Bureau Ordinance 1999.”

The respondent has filed a statement with which the documents of investigation have been submitted including the statements of witnesses. On examination of the statements of the witnesses, named above, prima facie it appears that two accounts; one of the M/S.S.Tooba Enterprises belonging to wife of the petitioner, and the other Joint Account of the petitioner and his wife were used as pool account for depositing the money of various customers of the bank instead of customers’ own accounts and that such pool accounts were being operated by the petitioner and his wife with active connivance of main accused Fawad Ahmed Batra and Shah Habib, respectively Manager and Cashier of the bank. The documents which were placed before the Court during the course of hearing in one separate file cover contains statements of accounts of M/S.S.Tooba Enterprises so also of Joint Account of petitioner and his wife and they show substantial transactions in both accounts, which apparently is not explainable.

Learned Special Prosecutor General during the course of arguments has stated that recoveries were made from both these accounts for payment to the customers of the bank of their misappropriated sum and on Court question the counsel for the petitioner admitted such fact but stated that neither the petitioner nor his wife has lodged any claim against the bank for recovery of the amount withdrawn from their accounts.

The material placed before the Court apparently show that petitioner has played major role in commission of crime that of misappropriation of funds of bank customers and on the basis of such material no case of further enquiry seems to have been made out.

As regards the ground of hardship, suffice to say that only a month has passed since the petitioner was arrested; the Accountability Court though is expected to decide the case as per law and as expeditiously as possible but mere delay of few days in facts and circumstances of the case will not make out a case of hardship. In the case of Ch. Zulfiqar Ali (supra) the petitioner has remained in custody for 27 months, the facts of the cases of Farhad Sajid and Nadeem Majeed (supra) were altogether different and said two judgments will have no application to the case of the petitioner.

After hearing the learned counsel, through a short order passed today, this Constitutional Petition was dismissed in limine. Above are the reasons for the same.

J U D G E