THE HIGH COURT OF SINDH AT KARACHI
Present: Mr. Justice Abdul Maalik Gaddi
Justice Mrs. Rashida Asad
Cr. Bail Application No.542 of 2020
Cr. Bail Application No.574 of 2020
Applicants (in Cr. Bail : (i) Mahendar Kumar son of Roop
Appln. No.542/2020) Chand, (ii) Naresh Kumar son of
Gurdas Lal @ KG, and (iii) Naresh Kumar son of Shaman Lal @ Jani,
through M/s. Aamir Mansoob Qureshi and Rehman Ghous, Advocates.
Applicant (in Cr. Bail : Muhammad Faisal alias Chitta
Appln. No.574/2020) son of Muhammad Saalim through
M/s. Aamir Mansoob Qureshi and
Rehman Ghous, Advocates.
Respondent : The State through Mr. Muhammad
Ahmed, Assistant Attorney General along with I.O/Inspector Fareed Khan, FIA, CBC, Karachi.
Date of hearing : 5.5.2020
Date of order : 5.5.2020
Abdul Maalik Gaddi, J. – By this common order, we intend to decide the captioned bail applications as they relate to same incident and crime.
2. Through these bail applications, applicants seek post arrest bail in Crime No.4 of 2020 registered at Police Station FIA, CBC, Karachi, under Sections 409/468/471/477-A/109, PPC read with Section 3/4 of Anti Money Laundering Act, 2010. Prior to filing these bail applications, applicants approached to the trial Court for grant of same relief, which was declined vide orders dated 4.4.2020 and 16.4.2020 respectively.
3. The FIR was lodged by complainant SI Zahoor Ahmed Bajkani of FIA CBC Karachi, dated 23.02.2020. The text of the FIR is reproduced hereinbelow:--
“Consequent upon enquiry No.47/2020 of FIA CBC Karachi, registered in this circle on tip of information that accused persons namely Mahendar Kumar son of Roop Lal, Naresh Kumar son of Gurdas Lal alias KG and Naresh Kumar son of Shaman Lal alias Jani are indulged in operation of benami accounts, money laundering and parallel banking practices. All accused persons are in liason with international accomplices by virtue of Internet Web Portals to manage/operate accounts and ledgers to cheat the general public. The accused persons have also opened various benami accounts with all commercial banks to camouflage the nature of ill-gotten funds under garb of dummy business in connivance with Bankers.
In this connection a search raid was scheduled to secure the evidences meanwhile it was learnt that Anti-Violent Crime Circle Karachi has taken into custody of accused Mahendar Kumar, Naresh Kumar alias KG and Naresh Kumar alias Jani in FIR No.12/2020 under anti-gambling laws. In this regard, undersigned along with FIA Team proceeded to P.S AVCC Karachi vide Roznamcha Entry No.5 dated 22.02.2020 for obtaining necessary information in instant enquiry where it was learnt that accused persons are being bailed out by I.O of Case being bail able offence. Hence, accused persons were taken into the custody by undersigned vide AVCC Roznamcha entry No.45 dated 22.02.2020 under provisions of Section 5(2) of FIA Act 1974 where there were reasons to believe that accused persons will damage the crucial evidences connected with instant matter. The Accused person along with their following mobile phone and Laptop were taken to P.S FIA CBC Karachi and were placed under interview;
1. IPhone 11 Pro bearing IMIE No.i. 35324610235924 ii. 353246102337807
2. IPhone Pro Max bearing IMEI No.i. 353894100462968 ii. 353894100340374
3. Samsung Galaxy Fold bearing IMEI No.i. 354261101043982 ii. 354264101043980
4. Vertu Mobile bearing IMEI No. 35116060101081
5. Laptop Dell
6. IPhone 7 bearing IMEI 355327082617307
7. Samsung Galaxy S10 bearing IMEI No.i. 351910103458118 ii. 351911103458116
In the light of interview and scrutiny of evidences in mobile phones and laptop revealed that accused persons are maintaining various benami accounts with UBL, MCB, ABL, HMB, JS Bank, BAHL, FAYSAL BANK, BAF, in order to camouflage finances to defame/sabotage ongoing Pakistan Super League Cricket Event in collusion with International Racket. The Whatsapp conversations, images, Documents, Deposit Slips available in Mobile Phones of accused persons proves the illegal acts of accused persons in crimes falling under 420, 468, 109 PPC R/w 3/4 of AML Act-2010s. The accused person are in liason with UAE Based National Lal Chand who facilitates the accused persons through Web Portals and Ravi Kumar son of Roop Lal (Brother of Mahendar Kumar) who manage the finances for money Laundering, Lal Chand manages the affairs through his local agents namely, Lal, Gul and others. Funds transfer is done through Hawala Merchants which will be investigated during course of investigation. The accused persons also revealed the names of their other accomplices as Umesh Kumar son of Har Kishan Das, Sushil Kumar son of Har Kishan Das, Dilip Kumar son of Har Kishan Das, Aftab Ahmed son of Abdur Rauf, Jabbar, Ameen alias Pan Mandi son of Muhammad Ameen, Muhammad Faisal alias Bafela son of Ghulam Hussain, Sajid alias Bond, Waqas alias Prince and others.
Hence, this case is accordingly registered against accused persons namely (i) Mahendar Kumar son of Roop Lal holding CNIC No.43101-4633424-9, (ii) Naresh kumar KG son of Gurdas Lal holding CNIC No.43101-9926080-5, (iii) Naresh Kumar Jani son of Shaman Lal holding CNIC No.43503-036854-5, (iv) Lal Chand of diamond exchange, (v) Ravi Kumar son of Roop Lal under Section 420, 468, 468, 109, PPC read with 3/4 of AML Act-2010. The accused person Mahendar son of Roop Lal have been arrested. The role of bankers and suspects will be determined during the course of investigation. Investigation of the case has been transferred to Inspector Fareed Ahmed Khan.
Zahoor Ahmed Bajkani
FIA, CBC, Karachi”
4. Mr. Aamir Mansoob Qureshi, learned Counsel for applicants argued that applicants are innocent and have been falsely implicated in this case by the complainant due to ulterior motives; that no date and time except year 2017 onwards of the occurrence is mentioned in the FIR, however, FIR was lodged on 23.02.2020, as such, according to him, false implication of the applicants in this case with due deliberation and consultation could not be ruled out; that applicants are duly registered with Federal Board of Revenue and are active taxpayers and are also filing income tax returns paying a handsome income tax to government of Pakistan; that the name of applicant Faisal alias Chitta does not transpire in the FIR and his name was inserted in this case upon the statement of co-accused, as such, the same has no value in terms of Article 38 and 39 of the Qanun-e-Shahadat Order, 1984, whereas, during investigation, investigating officer of the case has also failed to collect any cogent evidence against any of the accused which could establish any offence against them under the banking laws/business; that no benamidar has come forward to state that any account was opened and operated by the accused in their names. Further, no any loss has been caused to any bank or any private person. Moreover, the prosecution witnesses in their statement recorded under Section 161, Cr.P.C., have not deposed against the present applicants, as such, on this score, the case of applicants requires further probe; that co-accused Abdul Jabbar has already been granted bail by the trial Court almost on same facts, therefore, these applicants are also entitled for same relief; that the punishment of offences under which the applicants/accused are booked either bailable or their punishments do not fall within the prohibitory clause of Section 497, Cr.P.C., except Section 409, PPC, which according to him is not applicable in this case, as such, under these circumstances, grant of bail is a rule and refusal an exception and no exceptional ground is available in this case to withhold the bail of the applicants; that case has been challaned and applicants are no more required for investigation and trial still has not been commenced, therefore, according to learned Counsel, their further detention in jail would not serve any useful purpose as such, he prayed that applicants may be enlarged on bail. In support of his arguments, he has relied upon the following case laws:-
i. Muhammad Tanveer v. The State and another reported in PLD 2017 Supreme Court 733;
ii. Saeed Ahmed v. The State reported in 1996 SCMR 1132;
iii. Tariq Bashir and 5 others v. The State reported in PLD 1995 Supreme Court 34;
iv. Shamraiz Khan v. The State reported in 2000 SCMR 157;
v. Inamul Haque v. The State reported in 2000 YLR 289 [Karachi];
vi. Wasi Ahmed v. The State reported in 2010 YLR 2299 [Karachi].
5. On the other hand, Mr. Muhammad Ahmed, Assistant Attorney General for Pakistan, assisted by Investigating Officer, while opposing these bail applications argued that applicants were involved in gambling in order to defame and sabotage Pakistan Super League Cricket in Pakistan, every accused has played his role which is mentioned in charge sheet. Accused Mahendar Kumar was using account of his brother Kumar Lal by getting fake signature, huge transactions taken place in the accounts of the accused despite of the fact that they have no genuine or known source of income. The banker accused persons not raised STRs under AML Act, therefore, they were also made the accused. The accused persons only applied for amnesty scheme but they had not availed the facility of scheme. The accused Ahmed Armaghan Hanif Shaikh is a habitual offender. The benami accounts are great menace through which all illegal activities are used to be carried out. The accused persons are involved in illegal business of gambling as well as anti-money laundering. They are having international links and transactions used to take place through Hawala/Hundi. According to him, during investigation, investigating officer has collected sufficient evidence against the applicants, prima facie, shows the involvement of the applicants/accused in a case of serious and heinous in nature.
6. We have heard learned Counsel for the parties at a considerable length and have gone through the case papers so made available before us.
7. On perusal of record, it reveals that applicants have been specifically nominated in FIR with specific role, except applicant Muhammad Faisal @ Chitta. Nothing on record that complainant and investigating officer have any ill will/malafide with the applicants to falsely implicate them in this case. The delay in lodging of FIR has been properly explained. The case of the prosecution in brief is that applicants Mahendar Kumar son of Roop Lal, Naresh Kumar son of Gurdas Lal and Naresh Kumar son of Shaman Lal were indulged in operation of benami accounts, money laundering and parallel banking. The accused persons were in the liason with international accomplices through internet web portals to manage/operate accounts to cheat general public. The accused persons had also opened various benami accounts with commercial banks to camouflage the ill-gotten funds under garb of dummy business in connivance with bankers. They in order to camouflage finance to defame/sabotage recent (ongoing) Pakistan Super League Cricket event in collusion with international racket. They were in liason with UAE based national Lal Chand who facilitate the accused through web portal and Ravi Kumar son of Roop Lal managed the finance for money laundering. Lal Chand managed the affairs through his local agents Lal, Gul and others. The funds were transferred through Hawala merchants. The accused persons also revealed the names of their accomplices as Omesh Kumar son of Har Krishan Das, Sushil Kumar son of Har Krishan Das, Dilip Kumar son of Har Krishan Das, Aftab Ahmed son of Abdur Rauf, Jabbar Ameen alias Pan Mandi son of Muhammad Ameen, Muhammad Faisal alias Befla son of Ghulam Hussain, Sajid alias Bond, Waqas alias Prince and others.
8. We have noticed that during investigation, investigating officer of the case arrested seven accused persons. From their possession, mobile phones, laptops, cheque books, bank accounts deposit slips, remittance applications forms and other documents were recovered in presence of mashirs, who have no inimical terms with the applicants, prima facie, shows their involvement in the case, which appears to be serious and heinous in nature and also sabotage the soft image of the country.
9. Police papers on record shows that accused Mahendar Kumar, Naresh Kumar son of Gurdas Lal and Muhammad Faisal alias Bufela are based in UAE operating the web portals mentioned in the charge sheet. Accused Mahender Kumar is maintaining an account at MCB Zamzama branch, he withdrawn amount of Rs.125,00,000/- on 25.6.2019 and deposited in his newly opened account on 26.6.2019 in the same branch for the purpose of amnesty scheme. The absconding accused Kumar Lal opened account on 24.5.2019 at MCB Zamzama branch which was being operated by accused Mahendar Kumar with fake signatures of account holder, accused Mahendar Kumar was also using nine other accounts for the same purpose, he was working as front man of absconding accused Kumar Lal. Accused Noman Ali GBO shared third party account information to accused Mahendar Kumar, the screen shots of signature card of Kumar Lal were shared by Noman Ali with accused Mahendar Kumar, the print out of which was recovered from the residence/bungalow of accused Mahendar Kumar, which information was used for illegal business. The absconding accused Kumar Lal had travelled abroad and at the time of presenting twelve cheques from 31.7.2019 to 1.10.2019 was not available in Pakistan, due to difference in signature on presented cheques these were returned by the accused bankers in order to save themselves for the purpose of obtaining fresh signatures of account holder. These cheques were presented after affixing fake signatures of account holder Kumar Lal alias Ravi Kumar by Mahendar Kumar who withdrawn the amount by himself or through his rider. PW Haresh Kumar in his statement under Section 161, Cr.P.C. has stated that since 4.2.2019 to 31.1.2020 accused Mahendar Kumar deposited Rs.182 millions generated from the unknown sources in his nine different accounts being maintained at Kandhkot branch where he rarely visited. Under the direction of accused Mahendar Kumar, he transferred amount of Rs.177 millions through cheques or cash to different bank accounts which were provided to him by accused Mahendar Kumar for unknown purpose, although, he has no business. He has also stated that he has no business with Mahendar Kumar and he has no concern with persons in whose accounts the amounts were credited. As per record, dubious transactions in different bank accounts of Mahendar Kumar was approximately Rs.5 billion. There was no business record found and transactions were not matching with KYC of the bank account or reflected in income tax returns. Accused Naresh Kumar son of Gurdas Lal and Naresh Kumar son of Shaman Lal in connivance with accused Mahendar Kumar made heavy transactions through their bank accounts and they failed to provide evidence of their physical business with each other against these transactions. There is connivance of accused Ahmed Armaghan Hanif Shaikh with accused Muhammad Faisal alias Bufela in respect of heavy transactions in his bank account. Accused Ahmed Armaghan Hanif Shaikh and Muhammad Faisal alias Bufela were front men of absconding accused Lal Chand residing at UAE since long and were looking after his illegal business interest in Pakistan.
10. It has vehemently been argued by learned Counsel for applicants that the punishment of the offences under which the applicants have been booked are either bailable or their punishment do not fall within the prohibitory clause of Section 497, Cr.P.C. and co-accused Abdul Jabbar has already been granted bail by the trial Court, therefore, further detention of the applicants in this case would not serve the purpose, as such, they are entitled for bail. We have, however, felt not persuaded to agree with the learned Counsel for the applicants in this regard for the reasons that as per observation made hereinabove, there are strong pieces of evidence collected by the investigating officer against the applicants in this case. The case is at initial stage. Moreover, none can claim bail as of right in non-bailable offences even though the same do not fall under the prohibitory clause of Section 497, Cr.P.C. In this respect we are supported with the case of Muhammad Siddique v. Imtiaz Begum and 2 others reported in 2002 SCMR 442. If any other authority on the same point is needed, reliance can also be placed in the case of Imtiaz Ahmed and another v. The State reported in PLD 1997 SC 545, wherein it has been held that even in respect of offences not falling under prohibitory clause of Section 497, Cr.P.C., the Court may decline to admit the accused to bail, if there existed recognized exceptional circumstances. Here in this case, exceptional circumstances appear, as stated supra. Moreover, as per allegation, Section 409, PPC is also attracted in this case, which provides punishment imprisonment for life or imprisonment of either description for ten (10) years and fine.
11. As far as the role of co-accused Abdul Jabbar in this case, who has been granted bail by the trial Court, is concerned, his role as per police papers appears to be distinguishable from the role of present applicants. Even otherwise, while deciding bail application, role of each accused is to be seen on the basis of facts and circumstances of each case. As per charge sheet, serious allegations have also been leveled against applicant Muhammad Faisal @ Chitta.
12. It is pertinent to note here that corruption, fraud, forgery, cheating have become great menace to our society and needless to say that same is not an offence against individual rather an offence against society and the involvement of the applicants in such like offences is further detrimental to social fabric. As observed above, sufficient material is on record against the applicants to connect them in the case which appears to be serious and heinous in nature and also effect the soft image of the country, therefore, these bail applications being bereft of merits are dismissed. Needless to observe that the trial Court shall proceed with the trial uninfluenced by the observations made hereinabove and decide this case on the material produced by the parties at trial as per law.
13. The case laws cited by learned Counsel for applicants in support of his contention have been perused and considered by us but did not find applicable to the facts of the present case, therefore, the same are not helpful for him. Even otherwise, the precedents in bail matters are of no help to a party as it varies from case to case depending upon the facts of each case. Reliance in this respect is placed in the cases of The State v. Haji Kabeer Khan reported in PLD 2005 SC 364 and Muhammad Faiz alias Boora v. The State and another reported in 2015 SCMR 655.
14. As observed above, the case is at initial stage, therefore, the Presiding Officer of the trial Court is directed to proceed the matter expeditiously and decide the same as early as possible, preferably, within three (3) months and no unnecessary adjournment shall be granted to either side. Office is directed to immediately send the copy of this order to the trial Court through some swift means.
15. These bail applications were dismissed by us in open Court after hearing the parties’ advocates on 5.5.2020 and these are the detailed reasons thereof.