IN THE HIGH COURT OF SINDH, KARACHI
Spl. Cr. Bail Application No. 02 of 2009
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Date of Hearing |
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30.03.2009 |
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Applicant |
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Shakeel Ahmed Siddiqui through Syed Ghulam Nabi Shah, Advocate.
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Respondent |
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THE STATE through Mr. Shahab Sarki, Standing Counsel.
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NADEEM AZHAR SIDDIQI, J : The applicant is seeking bail before arrest in Crime No.01/2009 for the commission of offence falling under Section 2(37), 3, 6, 7, 10, 23 and 26 of the Sales Tax Act, 1990 punishable under Section 33 ibid at Police Station FIA Crime Circle, Karachi.
The allegation against the applicant is that in his collaboration and active connivance the accused Jehangir Mehfooz succeeded in obtaining Rs.30.408 Million on account of Sales Tax Refund and deprived the public exchequer from its legitimate revenue.
Learned counsel for the applicant submits that the applicant could not approach the trial Court, as the officials of Sales Tax were available outside the Court premises. He then submits that the name of the applicant was not appearing in the FIR and in the interim challan no specific allegations have been leveled against him. He then submits that the officials of Collectorate of Sales Tax are bent upon to arrest the applicant to humiliate, disgrace, disrepute and torture him. He has relied upon the reported case RAIS WAZIR AHMAD VS THE STATE (2004 SCMR 1167).
Learned Standing Counsel has opposed the bail application and submits that directly approaching the High Court for bail before arrest is not warranted and that sufficient material is available on record to connect the applicant with the commission of the offence and has referred statements under Section 161, Cr.P.C. of the officials of the Bank. He then submits that the applicant remained absconder and only when the trial Court has issued NBW against him he has approached this Court. He then submits that the applicant is on bail in other cases of like nature, which shows that he is habitual offender.
I have heard the learned counsel for the parties and perused the record made available before me.
It is an admitted fact that the name of applicant is not appearing in the FIR. In the interim challan it has been alleged that abscondence of the applicant reflects his deep routed involvement in the commission of offence and being in league with other members of syndicate. It was further alleged that the co-accused Jehangir Mehfooz in collaboration and active connivance of applicant and other succeeded in obtaining Rs.30.408 Million on account of Sales Tax Return Claims and deprived the public exchequer from its legitimate revenue by tempering with the account number and bank branch. From the interim challan it is clear that no specific role has been assigned to the applicant and the allegations against him are general in nature. In the reported case of BAHADUR KHAN NIAZI VS ALAM KHAN & 2 OTHERS (PLD 2000 KARACHI 74) it has been held as under: -
“It is the duty of the Investigating Agency to see that where there is no sufficient maerial to connect an accused person with the alleged offence, they are not required to make attempts for his arrest. If an Investigating Agency/Police Authorities despite weakness in the prosecution case make attempt to apprehend an accused person, this may be a situation where an applicant may plead that his arrest is being unjustified and motivated with ulterior motives. It is some time difficult for an accused who is in a situation of grave emergency, to obtain bail before arrest, to collect materials to satisfy the conscience of the Court that out of mala fide his arrest is required by the police. It would not be just and fair to stretch laws of civil pleadings in the bail matters.”
It is now well-settled principle of law that the High Court is vested with the powers to entertain bail applications directly. In the reported case of THE STATE VS MALIK MUKHTAR AHMAD AWAN (1991 SCMR 322) the Hon’ble Supreme Court of Pakistan has held that it is a matter of essentially of propriety and not of law that a person accused of an offence should in the first instance move the Court of Session for pre-arrest bail before approaching the High Court. In the same Judgment it was also held that it is not an absolute rule that a fugitive should under no circumstance be enlarged on bail although, it may be added, abscondence does constitute a relevant factor when examining the question of bail.
Regarding the bail before arrest the Hon’ble Supreme Court of Pakistan in the case of RAIS WAZIR AHMAD VS THE STATE (2004 SCMR 1167) has held as under: -
“It is true that normally a person, against whom a case has been registered, at the first instance, may approach the original Court having jurisdiction i.e. Sessions Judge in the matter of bail before arrest because propriety so demands but it is not a absolute rule as depending upon the compelling circumstances of each case a person can approach directly to the High Court by invoking its concurrent jurisdiction. Reference may be made to Sh. Zahoor Ahmad v. The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Rafiq Ahmad Jilani v. The State 1995 PCr.LJ 785; Agha Muhammad Jamil v. The State 1997 PCr.LJ 901 and Shamrez Khan v. The State 1999 PCr.LJ 74. Besides it if such an application has been moved before the High Court and it has entertained and granted ad interim bail to the applicant then instead of dismissing it on technical grounds it should have disposed it of on merits.”
In my view, the applicant has made out a case that the official intends to arrest him to cause humiliation and torture. Additionally the applicant has made out a case on merits.
The pre-arrest bail granted to the applicant on 16.3.2009 was confirmed on the same terms and conditions by short order dated 30.3.2009 and the above are the reasons.
The applicant is directed to join the investigation, if any, and will appear before the trial Court on the next date of hearing, if any. In case the applicant is found misusing the bail the trial Court is at liberty to proceed against him and his surety in accordance with law.
Karachi 30th March 2009. JUDGE