IN THE HIGH COURT OF SINDH, KARACHI
Present:
Mr. Justice Aqeel Ahmed Abbasi.
Mr. Justice Muhammad Junaid Ghaffar.
Khalid Aftab Khan .Petitioner
Versus
The Director General NAB Respondent
Date of hearing: 18.06.2014
Date of Order: 18.06.2014
Petitioner: Through Mr. S. Mehmood Alam Rizvi Advocate.
Respondent: Through Noor Muhammad Dayo Additional DPG NAB.
CP. NO. D-3054 of 2014
Iqbal Hussain ..Petitioner
Versus
Director General NAB & another Respondents
Date of hearing: 18.06.2014
Date of Order: 18.06.2014
Petitioner: Through Dr. Shah Nawaz Memon Advocate and Ms Rozina Essa holding brief for Mr. Khaleeq Ahmed Advocate.
Respondents: Through Noor Muhammad Dayo Additional DPG NAB.
O R D E R
Muhammad Junaid Ghaffar, J. Through this common order we intend to dispose of the aforesaid petitions through which the petitioners have sought Bail after arrest in respect of Reference No. 06/2014 filed by National Accountability Bureau (NAB) before the Accountability Court at Karachi.
2. Briefly, the facts of the case are that both the petitioners were employees of First Allied Bank Modaraba (Modaraba) and held different positions during their tenure of service. The petitioner in CP No D-2874 of 2014 joined the Modaraba in the year 1993 and was holding the charge of Deputy Chief from February 1996 to May 2001. Thereafter the petitioner resigned in the year 2005. Whereas, the petitioner in CP No D-3054 of 2014 worked with the Modaraba for a period of 15 years to the entire satisfaction of the management of the Modaraba and thereafter resigned and was relieved from service without any objection by the management of the Modaraba. It is stated in the Reference filed by the NAB Authorities, that State Bank of Pakistan vide its letter dated 7.7.2007 had referred the matter to Chairman NAB in respect of wilful loan default by Syed Basit Rasool Qadri, Attia Qadri and Mrs. Kalpna Shrestha, Directors of M/S Techno Powergen (Private) Limited and one Usman Ibrahim (Mortgager). Thereafter the matter was inquired by the NAB Authorities and formal investigation was authorized by the competent authority on 19.10.2010 and thereafter on 20.4.21012. It has been further stated in the Reference that M/S F&J International (Pvt.) Limited, through its Chief Executive Syed Basit Rasool Qadri, approached First Allied Bank Modarba on 16.4.1994 with an investment plan for import and marketing of Diesel Generators on profit sharing basis with the Modarba. Accordingly, an agreement was executed between the parties on 25.10.1994 in which M/S F&J International (Pvt.) Limited acted as marketing agent of First Allied Bank Modarba for sale of Diesel Generators imported/purchased by the Modarba. This arrangement continued till the year 1999 and during this period, Diesel Generators were either imported or locally purchased by the Modarba, at the request of M/S F&J International (Pvt.) Limited and M/S Techno Powergen Pvt. Limited, (sister concern of M/S F&J International (Pvt.) Limited). It has been further alleged in the Reference that thereafter M/S F&J International (Pvt.) Limited and Techno Powergen (Private) Limited, availed finance facilities and also misappropriated some unsold stock of generators by removing the generators unauthorizedly. On detection of such removal of Generators without obtaining any formal permission or making any payment thereof, M/s Techno Powergen (Private) Limited secured the Modaraba by creating an equitable mortgage in respect of property bearing No. D-19, Block 4 & 5, Al-Hilal Cooperative Housing Society, Karachi measuring 1150 square yards on 17.10.1997 in favour of First Allied Bank Modarba through attorney Mr. Usman Ibrahim who also executed General Power of Attorney in favour of First Allied Band Modarba. However subsequently, it was revealed that Mr. Usman Ibrahim, the attorney had earlier executed sub-power of attorney in favour of one Mr. Altaf Sattar on 1.2.1996 who after raising construction on the said plot, managed to sell the mortgaged property by executing six subleases of bungalows constructed thereon, in favour of the buyers on 21.2.2000. The case of the NAB Authorities is that the present petitioners had failed to verify the genuineness of property documents and further the said attorney Mr. Usman Ibrahim did not appear in person before them to sign the mortgage deed; hence a defective equitable mortgage was created by the petitioners causing loss of Rs. 57.10 million to First Allied Bank Modarba, consequently, the Reference has been filed wherein it has been alleged that an offence of wilful default has been committed in terms of Section 9(a)(viii) and (ix) read with Section 5(r)[q] of NAB Ordinance, 1999 punishable under Section 10 of the Ordinance, 1999.
3. Learned Counsel for the petitioners contended that the petitioners have been implicated in the above case with malafidies and ulterior motives as they are innocent and have acted as responsible officers of the Modaraba. Learned Counsel further contended that in fact this is not a case of any loan or finance facility, rather the customer had misappropriated the unsold generators which were removed from the stock and on detection of the same, had provided documents of the property in question as a security; whereas the petitioners acted strictly in accordance with the procedure in vogue in respect of creating equitable mortgage by the Modarba. Learned Counsel further contended that the matter pertains to the year 1996, whereafter the petitioners have resigned from their job, but no such objection was ever raised or brought to the knowledge of the petitioners in this regard and in fact they were allowed all the retirement benefits as well as NOC by the management of the Modarba. Learned Counsel further contended that the petitioners had adopted due diligence and had created the equitable mortgage in respect of the said property by obtaining valid Search Certificate and Permission to Mortgage from the concerned authorities, which was the only requirement laid down in lending policy / procedure of the Modaraba. Learned Counsel also contended that since no funds were being released to the customer in the instant matter and the mortgage of the title document was executed as a charge, hence, was sufficient enough towards the liability of the Modarba. Learned Counsel prayed that in view of such position, the petitioners are entitled to be released on bail and in support of his contention learned Counsel has relied upon the case of Tariq Hashmi Vs. The State reported in SBLR 2009 Sindh 2007 and Mrs. Riaz Qayyum Vs. The State and another reported in 2004 SCMR 1889.
4. On the other hand, Addl. DPG NAB has opposed the grant of bail to the petitioners on the ground that a Reference has been filed against them whereby they have been implicated in the crime as they acted in connivance with the customer who has obtained huge amount of loan from the Modarba and has thereafter wilfully defaulted.
5. We have heard both the learned Counsel and perused the record with their assistance. It appears that the only allegation attributed against the petitioners as stated in the Reference is, that they failed to verify the genuineness of the property documents and that the attorney namely Usman Ibrahim did not appear before them to sign the mortgage deed. The NAB Authorities have alleged in the Reference that the petitioner failed to verify the genuineness of the property documents and have invoked the provisions of section 9(a) (ix) of the NAB Ordinance, 1999, which relates to the offence of cheating as defined in section 415 of the Pakistan Penal Code, however, nothing has been brought on record to prima facie substantiate such allegation against the petitioners. The case of the NAB Authorities against the petitioner appears to be of some procedural lapse, as according to the NAB Authorities, they have not acted with due diligence while accepting the equitable mortgage. We are of the view that whether the petitioners acted with due diligence or not, requires further enquiry through evidence at the trial stage, whereas, even this allegation, on the face of the material available on record appears to be doubtful. Moreover, the documents produced by the learned Counsel for the petitioners including the Memorandum of Deposit of Title Deed dated 17.10.1997, through which the Original Indenture of Sub-lease dated 27.06.1964 along with original Power of Attorney dated 02.01.1995 was deposited with the Modaraba, a Search Certificate dated 29.01.1997 and a letter dated 20.03.2001 issued by Karachi Development Authority, reflects that a permission to Mortgage dated 26.04.1997 had been issued in favour of the Modaraba. It has also come on record that no fresh funds were being released to the customer, and the property documents were secured only to the extent of the liability created due to misappropriation of Generators. In so far as the question that whether the attorney namely Usman Ibrahim appeared before them or not to sign the mortgage deed, also requires further enquiry and evidence at the trial stage. As per the statement made by the Addl. DPG NAB at bar, the petitioners are no more required for any further investigation and have already been remanded to judicial custody. Further the entire case of NAB is based on documentary evidence which is already in the possession of the NAB Authorities, whereas the reference has already been filed before the competent Court of law; hence there is no possibility of tempering with the evidence by the petitioners.
6. It is settled legal position that at the time of hearing of Bail, only a tentative assessment of the evidence is to be made, and on perusal of the record we are of the view that the case of the petitioners requires further enquiry in terms of Section 497(2) Cr.P.C. We are of the opinion that petitioners have made out a case for their release on bail which cannot be withheld as a punishment. Consequently, both the petitioners namely Khalid Aftab Khan and Iqbal Hussain have been granted bail vide our short order dated 18.6.2014 on their furnishing surety in the sum of Rs. 1,000,000/- (Rupees one million) each and P.R. bond in the like amount to the satisfaction of the Nazir of this Court and these are the reasons for short order. However, it is clarified that if any stage of the proceedings, the petitioners will misuse the concession of bail, the trial Court would be at liberty to proceed against them in accordance with law, including forfeiture of surety by filing a reference through the Nazir of this Court.
7. Needless to observe that the observations made hereinabove are tentative in nature and shall not have any bearing on the proceedings pending before the trial Court.
JUDGE
JUDGE