MUZAFFAR AYAZ ABID BALOCH vs NATIONAL ACCOUNTABILITY BUREAU, SINDH
This matter arises from a petition for leave to appeal directed against an order of the High Court of Sindh dismissing the petitioner's application for post-arrest bail in a case involving allegations of fraud and the operation of a fake bank account. The core legal question concerns whether the petitioner, a bank clerk/assistant accused of preparing deposit slips for a fake account, was entitled to bail pending trial under the circumstances. The Supreme Court of Pakistan held that the petitioner was entitled to bail, converting the petition into an appeal and allowing it. The Court reasoned that there was no allegation of financial loss caused to the bank, witness statements under section 161 of the Code of Criminal Procedure 1898 were not recorded properly, the prosecution lacked convincing evidence at this stage to refuse bail, the element of mens rea remained to be proven at trial, the petitioner was declared innocent in a departmental inquiry, and the Federal Investigation Agency had closed its inquiry. The key principle laid down is that where the prosecution lacks convincing evidence of guilt and mens rea at the bail stage, and no financial loss to the institution is established, further inquiry into the petitioner's guilt warrants the grant of bail.
- Whether an accused bank employee is entitled to post-arrest bail when no financial loss has been caused to the bank and the element of mens rea requires further inquiry at trial?
- Does the closure of an inquiry by the Federal Investigation Agency and exoneration in a departmental inquiry constitute grounds for granting bail?
- Whether improper recording of witness statements under Section 161 of the Code of Criminal Procedure 1898 weakens the prosecution case at the bail stage?
- Article 185(3), Constitution of Islamic Republic of Pakistan, 1973
- Section 161, Code of Criminal Procedure 1898
' MUHAMMAD MOOSA K. LEGHARI, J.--- Through this petition, for leave to appeal, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question order, dated 24-8-2007 passed by High Court of Sindh Karachi, whereby his petition for grant of bail was dismissed.
2. The facts of the case precisely are that, a fake account in the name of Ahmad Ali was opened in the year 1999 when co-accused Azhar Hussain Zuberi was Branch Manager of National Bank of Pakistan, Massan Road Branch, Karachi. The allegations are that the introducer of the said account was Abid Saeed, who used to visit the petitioner in the bank and that the signature on the specimen card on the said account was that of Abid Saeed, who was operating the account. It is alleged that four pay orders, dated 14-7-1999, 19-7-1999 and 30-6-1999 containing different amounts were issued by Deutsche Bank, which were deposited in the fake account through three deposit slip which were allegedly prepared by the petitioner who was enjoyed as Clerk/Assistant and after clearance the amounts were deposited in the said account. It is alleged that the petitioner has received cash of two amounts, which were drawn from the said account through two different cheques.
3. We have heard learned counsel for the petitioner and learned Prosecutor-General Accountability, Sindh, accompanied by Additional Deputy Prosecutor-General, Sindh.
4. Learned Prosecutor-General Accountability appearing for the National Accountability Bureau vehemently opposed the grant of bail contending that the pay orders favouring Karachi Metrolpolitan Corporation and Excise and Taxation Officer, Port Qasim, were to be deposited in their accounts but the said pay orders were deposited in the account of fake person named Ahmad Ali, which was being operated by Abid Saeed, as such the petitioner was also liable for the fraud and misappropriation as the deposit slips were prepared by him.
5. We have considered the arguments and examined the material placed on. Record. There is absolutely no allegation that any loss was caused to the bank. The only allegation which has been levelled against the petitioner is that the petitioner has prepared the incorrect, deposit slips through which the pay orders were deposited in the allegedly fake account being operated by Abid Saeed. The perusal of the order of the High Court itself reveals that statements of witnesses under section 161, Cr.P.C. Were not recorded in a proper manner. Apparently the Prosecution is not in possession of convincing evidence to refuse bail of the petitioner. The prosecution has yet to prove the element of mens rea during trial, more particularly when the evidence with regard to causing loss to the bank has yet to be brought on record. Besides in the departmental inquiry held by the bank authorities in the year 2003, the petitioner has claimed to have been declared innocent and that the F.I.A. Also stopped/closed the inquiry in the matter as the alleged offence is said to have been committed in the year 1999.
6. We feel that in the given circumstances, the petitioner is entitled to grant of bail. Accordingly he is granted bail in the sum of Rs,1,00,000 (Rupees one lac only) with one surety and P.R. Bond in the like amount to the satisfaction of the trial Court. These are the detailed reasons of the short order passed on 4-2-2008, whereby the petition was converted into appeal and allowed.
Cited by 3 cases
- IQBAL AHMED BABLANI and others vs CHAIRMAN, NATIONAL ACCOUNTABILITY 2017 P Cr. L J 380
- HASSAN JAMEEL ANSARI and anothers vs NATIONAL ACCOUNTABILITY 2012 YLR 2809
- Brig. (R) ABDUL QAYUM vs THE STATE 2010 P Cr. L J 1197