ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

CP No.D-2577 Of 2009. __________________________________________________________________

Order with signature of Judge

1. For order on Misc. 13209/09 (Urgent).

2. For order on Misc. 12579/09 (Exemption).

3. For Katcha Peshi.

18.12.2009.

Mr. Muhammad Anwar Tariq Advocate alongwith the petitioner.

Mr. Muhammad Arif, Special Prosecutor, NAB.

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1. The counsel for the petitioner states that NBWs have been issued against the petitioner and the matter may be anti dated from 21.01.2010 for today as the petitioner is likely to be arrested. With the consent of the Special Prosecutor NAB this application is allowed and the matter is anti dated for today.

2. Granted subject to all just exceptions.

3. The petitioner has been implicated in Reference No.09/2009 pending in the Accountability Court No.IV at Karachi and the allegation against the petitioner is contained in para-7(a) which is as follows:-

7(a). Ismail Admani CEO of Babar Treading Company (Pvt.) Ltd.

Ismail Admani was an old friend of accused Fawad Ahmed Batra. Ismail Admani was running his business in the name of Babar Trading Company Pvt. Ltd. Having factory locations at SITE Karachi and SITE Kotri. He appointed accused Fawad Ahmed Batra as a General Manager in Babar Trading Company Pvt. Ltd. to look after his business. A rubber stamp was recovered from the residence of the accused Fawad Batra showing him as General Manager, Babar Trading Company, during the search. A file containing various documents relating to Babar Trading Company recovered from the residence of the accused revealed that the accused started financing to Babar Trading Company Pvt. Ltd. in 2000 through DDs /TTs /Cash when he was Manager at HBL Cantt. Station branch. He continued to finance the company when he was transferred to HBL Arambagh branch in 2003-04. The amount was credited in different accounts of Babar Trading Company and its employees at HBL SITE Branch Kotri.

After detection of fraud at HBL, Garden Branch accused Fawad Ahmed Batra contacted Mr. Ismail Admani and asked him to pay back his outstanding amount which he had misappropriated from bank. An agreement was reached between accused Fawad Ahmed Batra and Ismail Admani on 17 November 2006. The contents of the agreement /affidavit shows that Ismail Admani had paid Rs.15 million to accused Fawad Ahmed Batra and promised to pay Rs.6 million at the shortest possible time towards liability of the complainant bank. The said agreement was witnessed by Mr. Muhammad Jaffar and Muhammad Rafique. Both the witnesses confirmed and verified the contents of the said agreement. They also disclosed that Rs.6 million were still payable by Ismail Admani.

Learned counsel for the petitioner states that in para-12 of the Reference Application the petitioner has been arrayed as an accused on the ground that he has obtained unlawful benefits from the main accused namely Fawad Ahmed Batra and has been made liable for the offence in terms of Section 9(a)(xii) and S.No.5 of Schedule of National Accountability Ordinance 1999. He contends that all the dealing of the petitioner had been with main accused Fawad Ahmed Batra and that the petitioner had obtained no direct facility or benefit from the bank nor the petitioner himself has committed any wrong to the bank. He further contends that as the petitioner himself has done no wrong to the bank is thus entitled to the grant of pre arrest bail. Learned counsel has relied upon an order dated 01.12.2009 passed by this Bench in C.P. No.D-2201/2009 by which the bail was extended to one of the accused namely Saleem Raza Bazmi in the same reference.

Learned Special Prosecutor, NAB, has contended that the petitioner was in league with the main accused who was drawing funds from the bank and was crediting the same in the account of the petitioner who was the Chief Executive Officer of Babar Trading Company (Pvt.) Ltd. and thus the petitioner has been impleaded as an accused being an accessory to the crime committed by the main accused.

We have considered the submissions made by the learned counsel and have gone through the record. Apparently the allegation made in the reference does show that the petitioner and his company had some link and business dealing with the main accused namely Fawad Ahmed Batra but the petitioner himself does not appear to have done anything directly for defrauding the customers of the bank of their money nor the petitioner himself defrauded the bank directly. This also is apparent from the allegation contained in para 7(a) of the Reference as quoted above. The very reference application states that the petitioner has paid Rs.15 million to accused Fawad Ahmed Batra and promised to pay Rs.6 million at a shortest possible time. These facts itself show that the transaction of the petitioner was with main accused Fawad Ahmed Batra and not with the bank. Further as noted above the petitioner has been made accused in this case in terms of Section 9(a)(xii) and S.No.5 of Schedule of National Accountability Ordinance 1999 as aider and abettor of the offence. On similar facts and ground through our order dated 01.12.2009, passed in C.P. No.D-2201/2009, we have granted bail to one of the co-accused namely Saleem Raza Bazmi in the same reference. Following the rule of consistency we feel that it will be a futile exercise in allowing the petitioner to be arrested and thereafter being released on bail and therefore there being enough justification for extending the benefit of pre arrest bail to the petitioner, we allow this petition and grant pre arrest bail to the petitioner on his furnishing surety in the sum of Rs.1 million (Rupees One Million) and P.R. Bonds in the like amount to the satisfaction of Nazir of this Court.

J U D G E

Aamir/PS