ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Cr.Bail Application No.87 of 2014

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Order with signature of Judge

Faisal Rehan Versus The State

Date of hearing 19.09.2014

M/s.Kh.Shams-ul-Islam and Kh.Saif-ul-Islam, Advocates for the applicant.

Mr.Muhammad Aslam Butt, D.A.G.

Mr. Zahoor Ahmed, I.O, FIA is also present.

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Mohammad Ali Mazhar J. The applicant has applied for post arrest bail in FIR No.76/2013 under Section 409, 420, 468, 471, 109 P.P.C read with Section 5 (2) of Prevention of Corruption Act-II, 1947, lodged at P.S FIA Crime Circle, Karachi. The FIR was lodged against Vehari International including some other persons on the allegations that they have unlawfully claimed 25% freight subsidy in flagrant violation of the public notice issued by Trade Development Authority of Pakistan (T.D.A.P) and in connivance with TDAP officials, accused persons have misappropriated/embezzled huge amount. However, it is an admitted fact that the name of the present applicant is not mentioned in the FIR but he has been implicated in the interim charge-sheet No.14 submitted on 13.1.2014.

2. At the very outset, the learned counsel for the applicant argued that the same applicant was enlarged on pre-arrest bail in Crime No.35/2013 but after obtaining the bail in the above case, he was again arrested on 8.10.2013. The present FIR was lodged on 30.12.2013 without implicating the applicant but he has been implicated in the interim charge-sheet. The role of the applicant in the charge-sheet is that he is one of the beneficiaries of the claim of 25% freight subsidy obtained by M/s.Vehari International fraudulently. Being his share, a Cheque No.0574631 in the sum of Rs.11,00,000 was issued to M/s.N.F. International, a Proprietorship firm of the applicant by M/s.Vehari International and this cheque was deposited in the account of applicant’s firm being operated in the National Bank of Pakistan. It is further stated that the account of M/s.N.F. International was being operated by the applicant Faisal Rehan. The date of arrest of the applicant is shown as 7.1.2014, while the counsel for the applicant argued that the applicant was arrested on 8.10.2013. Learned counsel for the applicant further argued that the main accused in this crime is the owner of M/s.Vehari International, namely, Muhammad Nadeem, who is already on interim bail but the applicant is behind the bar since 8.10.2013. No charge has been framed, the interim charge sheet has been submitted on 13.1.2014 which has been treated as final charge sheet and there is no likelihood of concluding the trail in near future. He further pointed out that the bail was applied in the trial court but the trial court rejected the bail vide order dated 22.1.2014. He also submits that the last page of the bail order clearly shows that the order rejecting the bail application was signed on 22.1.2014 but according to the preceding paragraph, the bail application is said to have been rejected on 16.12.2013, while according to prosecution the accused was arrested on 7.1.2014, which is a date much after the date of rejection of the bail application. He further argued that this is a case of misuse of powers and authority by the FIA as no specific role of applicant has been assigned in the challan. He further argued that the prosecution has failed to connect the accused person with the crime in question and he has been falsely implicated in this case.

3. On the contrary, the learned D.A.G. with the assistance of I.O. Zahoor Ahmed argued that there may be some typing error in the bail order but this is a fact that the accused was arrested on 7.1.2014. He further argued that the cheque of Rs.11,00,000/- was issued in the name of firm of the applicant, which is M/s.N.F.International and this amount was deposited in its account. When the court asked to learned DAG., whether the prosecution has collected the evidence regarding the encashment of this cheque or not? The learned D.A.G argued that amount was transferred into the Bank Account of the applicant’s firm. He also shown me original cross cheque No.0574631 which was issued on 11.12.2012 in the name of N.F.International, but it is quite astonishing to note that the National bank of Pakistan had affixed the transfer/clearing stamp as 12.12.2011, which was somewhat impossible as the said cheque could not be presented or encashed on 11.12.2011 when its due date was 11.12.2012. When I was not satisfied, I also asked the learned D.A.G. to show the Bank Statement of M/s.N.F. International’s Account No.056460-7. On production of bank statement, the learned DAG referred to me an entry dated 12.12.2011 to demonstrate that a sum of Rs.11,00,000/- was credited in the account of M/s.N.F. International but when I saw the column of “Instrument Number” in the bank statement, the cheque No.0574631 was not found mentioned but another instrument No.94060004 was mentioned against Rs.11,00,000/- which is not matching with the cheque in question. This entry number is also dated 12.12.2011, while the cheque issued to N.F. International was dated 11.12.2012, which is clearly visible from the cheque. Learned D.A.G. submits that except this no other evidence is available at the moment.

4. After hearing the arguments, I am of the view that the role assigned to the present applicant regarding the amount said to have been misappropriated/embezzled by him through the aforesaid cheque requires further inquiry to prove his guilt. Mere crediting the similar amount in the bank account of the applicant’s firm does not mean that this was the same cheque which was allegedly issued to him as his share particularly when the cheque number in question is not matching with the instrument number against which the said amount was credited in the bank account. It is also to be thrashed out during evidence how a cross cheque could be encashed before its due date. The date on the cheque is quite visible as 11.12.2012 which was allegedly encashed on 12.12.2011 which is almost one year earlier to its due date of encashment. How the cheque was presented and accepted by the bank all these questions are very crucial to decide the fate of the applicant and on tentative assessment of material collected and produced by the prosecution, there is no hesitation in my mind to hold that the case of the applicant requires further inquiry. According to the prosecution he is behind the bar since January 2014, which means more than eight months have been passed. It is also a fact that no charge has been framed and there is no likelihood of concluding the trial in near future. The grant of bail or its refusal is a judicial exercise of discretion and it is incumbent upon the court to make tentative assessment of the material collected by the prosecution as well as defense. It is also well settled proposition of law that benefit of doubt can be given to the accused even at bail stage and law is not to be stretched in favour of prosecution. Object of trial is to make an accused to face the trial and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Accused is also entitled to an expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable delay but in this case pace of trial do show that there is no likelihood of concluding the trial in near future and the applicant is rotting in jail for last more than eight months without progress in the trial.

5. As a result of above discussion, the applicant is granted bail subject to his furnishing solvent surety in the sum of Rs.200,000/- (Rupees two lacs only) with P.R. Bond in the like amount to the satisfaction of the trial court. The applicant shall also submit his original valid passport in the trial court and he will not leave this country without permission of the trial court. The findings are tentative in nature and shall not prejudice the case of either party. Bail application is disposed of.

Judge