ZAKAULLAH KHAN SHERWANI vs THE STATE and 2 others
This matter comes before the Lahore High Court through a constitutional petition filed under Article 199 of the Constitution of Pakistan, 1973, seeking post-arrest bail in an accountability reference involving allegations of financial embezzlement, maintenance of benami accounts, and misappropriation of funds. The core legal question concerns whether the petitioner, an employee who allegedly received and withdrew funds transferred from the chief executive's account, is entitled to bail when the trial is unlikely to conclude soon due to an extensive list of prosecution witnesses. The court held that since the petitioner was not a director, the funds were transferred by the principal accused who later offered a plea bargain, and no direct evidence of instigation or active fraud was collected at this stage, the case falls within the scope of further inquiry. Consequently, the petition was accepted and the petitioner granted bail, establishing the principle that an employee cannot be indefinitely incarcerated on mere conjectures where trial delays are extensive and primary liability is assumed by the principal accused.
- Whether an employee accused of withdrawing funds transferred by the chief executive of a company is entitled to post-arrest bail when no direct evidence of instigation is found?
- Does an inordinate delay in the conclusion of a trial involving numerous prosecution witnesses make a case one of further inquiry for the purpose of bail?
- Can a person be detained indefinitely in jail on surmises and conjectures during pending accountability proceedings?
- Article 199, Constitution of Islamic Republic of Pakistan 1973
ORDER
' Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for his release on bail in Reference No,35 of 2005, titled as State v. Shahid Hassan Awan etc, pending before the learned Judge Accountability Court No,3 Lahore.
2. The brief allegatiqn against the petitioner as contained in para. No,9 (e) of the Reference is as under:-- "(e) The accused Zakaullah Khan Sherwani &outman of accused No,1 was responsible for maintaining different bank accounts. Accused No,5 received approximately Rs,95 million directly into his accounts from the account of accused No,1 and entire amount so received in his accounts was withdrawn and misappropriated. The details are as under:---
(i) He received approximately Rs,42 million directly in his account from the accounts of Shahid Hassan Awan accused and all the money was embezzled by the accused person.
(ii) From the account in First Standard Chartered Bank Gulberg. Lahore fixed deposit certificates worth Rs,30 million were purchased and encashed.
(iii) He opened account in UBL, Liberty Market Lahore with transfer balance of Rs,23 million from the account of accused No,
1. Further, an amount of .Rs,7,50,000 was received by accused from the saving account of accused No,1. He also received Rs,5 million in this account from the father of accused No,1 and entire amount was withdrawn in two days.
(iv) The accused as Benamidar of accused No,1 purchased two Kanals Plot No,116 Block "A" Phase-II Scheme II in Ravian Cooperative Housing Society Lahore. He sold this property before his arrest and misappropriated the sale price.
(v) The accused purchased Property No,668/1 Block "Z" Phase-III DHA Lahore that was disposed of and its proceeds were misappropriated.
(vi) On 2-9-2003 accused withdrew Rs,3.5 million from Standard Chartered Bank Lahore in violation of the orders of the Honourable Lahore High Court Lahore whereupon his warrants of arrest were issued."
3. The learned counsel for the petitioner contends that there is no likelihood of the conclusion of the trial in the near future as the prosecution has cited 910 witnesses which the NAB Authorities intend to produce to prove the case; that out of 910 witnesses only statements of four witnesses have been recorded so far in six months; that the petitioner was not the Director and the allegation against him is that Shahid Hassan Awan, Chief Executive of the Company had transferred some amount in the account of the petitioner which was subsequently withdrawn; that the said transaction does not fall within the affair of the company and the principal accused Shahid Hassan Awan had already raised plea bargain at the initial stage and voluntarily accepted the whole liability, who also intended to return the entire amount.
4. On the other hand, the learned Prosecutor on behalf of the NAB opposes this petition on the ground that the petitioner remained present when the witnesses had gone to deposit the amount along with Shahid Hassan Awan; that he had also filed C.M. In the Lahore High Court, Lahore for withdrawal of the amount and also got withdrawn the amount in violation of the orders passed by the company.
5. We have heard the learned counsel for the parties and also perused the record with due care and caution.
6. It is admitted fact that the petitioner was not Director of the Company. It is also admitted fact that so far the NAB Authorities have not collected -any direct evidence against the petitioner that he had instigated anybody for depositing the amount or any person at his instance had deposited the amount in the company. It is also not denied that the amount of 95 millions which was deposited in the account of the petitioner was transferred from the account of Shahid Hassan Awan Chief Executive. It is claimed that he was employee of the said company and Chief Executive had transferred the said amount, who subsequently withdrew the said amount and he being employee of the company was not in a position to refuse the transfer of the amount and withdrawal of the same by the Chief Executive of the Company. For the time being there is nothing on the record to controvert the assertion of the petitioner. It seems that the petitioner has been roped in the present case merely on surmises and conjectures, who cannot be detained in jail for an indefinite period when there is no likelihood of conclusion of the trial in the near future as the prosecution has cited 910 P.Ws. In the calendar of witnesses and only four P.Ws. Have been recorded so far. On the other hand the case to the extent of the petitioner has become one of further inquiry.
7. For the foregoing discussion, this petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs, one million with two sureties each in the like amount to the satisfaction of D.R. (J) of this Court.
Cited by 1 case
- SHARJEEL INAM MEMON Versus NATIONAL ACCOUNTABILITY BUREAU 2018 PCrLJN 34