ORDER SHEET
IN THE HIGH COURT OF SINDH
AT KARACHI
Criminal Misc.
Application No.139 of 2012
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DATE ORDER WITH SIGNATURE(S) OF
JUDGE(S)
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Present:
Mr. Justice Ghulam Sarwar Korai
Mr. Justice Naimatullah
Phulpoto
Gulraiz
Ahmed Raza………………………………………………Applicant
Versus
The
State and another……………………………………………Respondents
*********
For Applicant : Dr. Rana M. Shamim Advocate.
For
Respondents : Mr. Noor Mohammad Dayo
Special prosecutor NAB.
Date of
hearing : 02.10.2013
O
R D E R
NAIMATULLAH PHULPOTO, J.- Through instant Criminal Misc.
Application applicant/accused has impugned an order of the Accountability Court
No.IV, Sindh at Karachi dated 20.06.2011, passed ini Reference No.55/2007, whereby an application under
Section 265-K Cr.P.C, was dismissed. The relevant
portion of the order dated 20.06.2011 is reproduced as under:-
“8. After investigation interim challan was submitted before the learned Special Judge
(Customs & Taxation) Karachi against accused Gulraiz
Ahmed Raza, while accused persons namely Ghulam Hussain, Proprietor M/s.
G.M International, Aamir Abdullah, Proprietor M/s Harees Enterprises, Humayun,
owner of M/s. Masoom Ali Sons Readymade Garments,
Muhammad Saleem, owner of M/s Fortune Apparel
Industries Textile Products and Muhammad Ishfaq,
owner of M/s. Uni Leather International were challaned under section 512 Cr.P.C.
The accused Mazhar Iqbal
Malik, Owner of M/s. Malik’s International and Muhammad Arif
Qureshi, owner of Q.B. International were not challaned.
9. Subsequently on the applicant of the NAB
under Section 16-A (a) of National Accountability Ordinance, 1999 the learned
Special Judge (Customs & Taxation), Karachi vide orders dated 23.08.2007
transferred the case to the learned Administrative Judge, Accountability
Courts, Karachi, from where it was transferred to this Court as Reference No.55
of 2007.
10. As per record the applicant/accused was
serving in Sales Tax department as Auditor. He is nominated in the FIR with
specific allegations that he in connivance with the other officers and
Officials of the Sales Tax department committed fraud and sales tax refund of
Rs.30,566,375/- was fraudulently sanctioned and paid against the actual refund
claim of Rs.9,384,033/- since 08.12.2004 to M/s Masoom
Ali & Sons fraudulently.
11. Earlier an application under Section 265-K Cr.P.C was filed by the applicant/accused which was
dismissed by this Court on the grounds that charge was not framed and
sufficient material was available with the Prosecution to connect the
applicant/accused with the commission of offence alleged against him. Such
dismissal was challenged before the Hon’ble High
Court and while disposing off Criminal Miscellaneous Application NO.102/2009,
the Hon’ble High Court has been pleased to direct this
court to examine material witnesses particularly Manager MCB, Barket-e-Haidery Branch, Karachi
within a period of four months and thereafter applicant/accused was given
option to file fresh application under section 265-K Cr.P.C.
12. After the receipt of the directions of the Hon’ble High Court charge is framed and one PW namely
Muhammad Aslam, the Deputy Superintendent RTO,
Karachi has been examined. He has not implicated the accused and has
categorically stated that he do not know whether I.O NAB has recorded his
statement. He was declared hostile and in cross examination conducted by the
Special Prosecutor (Mr. Muhammad Riaz) NAB, he
disowned his statement recorded under section 161 Cr.P.C
though the statement was confronted to him.
13. In my humble opinion non implication of the
applicant/accused by this PW cannot lead this court to presume that the
applicant/accused has falsely been implicated into this case. In the interim challan four other PWs are also cited whose statements u/s
161 Cr.P.C more or less are same as was of the PW
examined in the court. In my humble view it will be appropriate to record
evidence of these four material PWs to ascertain the fact of false implication
of the accused as argued by his learned advocate. In this case the other
Officers and Officials of the Sales Tax department are also suspected to be
involved in the scam of fraudulent issuance and payment of sales tax refund. Points raised by the learned advocate for applicant/accused also
requires evidence. It appears that no case is made out by the accused
for his acquittal under section 265-K Cr.P.C. It is
settled principle of law that courts can acquit the accused facing trial at any
stage even before framing of the charge except there is possibility of his
being convicted.
14. The other aspect of the case, as pointed
out by the learned Special Prosecutor, NAB in that matter is re-investigated by
the NAB and supplementary reference is ready which could not be filed in court
due to non appointment of the Chairman, NAB.
15. In view of the above facts and
circumstances in my humble opinion that no case is made out by the
applicant/accused for his acquittal under section 265-K Cr.P.C
resultantly his application is dismissed. I have great respect to the case laws
placed on record by the learned advocate for the accused but in my humble view
the facts and circumstances of these citations are distinguishable from the
facts and circumstances of the case in hand. Application is dismissed
accordingly.
Order accordingly.”
3. Dr. Rana M. Shamim, Advocate for the applicant, mainly argued that five
prosecution witnesses have been examined by the Accountability Court and they
had not supported the case of the prosecution. Evidence of the remaining P.Ws
would not improve the prosecution case. He has further contended that from the
Reference filed in the Accountability Court, no offence is made out against the
applicant/accused. It is argued that there is no probability of his conviction
of applicant/accused in this reference. He has further contended that main
accused Mst. Sher Bano is absconding in this case and applicant/accused has
no concern with her, trial will take longtime. Lastly, submitted that
applicant/accused is entitled for acquittal u/s 265-K Cr.P.C.
4. Mr. Noor Mohammad Dayo
Special Prosecutor NAB argued that evidence of material witnesses is yet to be
recorded by the Trial Court. Appreciation of evidence is primary function of
the Accountability Court, where the Reference is pending. He has submitted that
sufficient documentary evidence has been produced against applicant/accused
during trial. Prosecution will examine remaining witnesses and there is every
probability of the conviction of the accused in this case.
5. We have heard learned counsel for the
parties and have gone through the material available on record.
6. Learned
Judge, Accountability Court in his order dated 20.06.2011 has mentioned that as
per record the applicant/accused was serving in Sales Tax department as
Auditor. He is nominated in the FIR with specific allegations that he in
connivance with the other officers and Officials of the Sales Tax department
committed fraud and sales tax refund of Rs.30,566,375/- was fraudulently
sanctioned and paid against the actual refund claim of Rs.9,384,033/- since
08.12.2004 to M/s Masoom Ali & Sons fraudulently.
We are of the considered view that trial Court had rightly dismissed an
application u/s 265-K Cr.P.C for the reasons that
prosecution has produced documentary evidence, still prosecution want to examine
witnesses. Court under the garb of section 265-K Cr.PC
cannot deprive prosecution to produce evidence, usually criminal case should be
allowed to be decided on merits after recording prosecution evidence, statement
of accused and hearing arguments of both parties. The scope of the provisions
of Sections 249-A, 265-K and 561-A of Criminal Procedure Code has been examined
by the Honourable Supreme Court of Pakistan in the
case of The state through Advocate
General, Sindh High Court of Karachi vs. Raja Abdul Rehman
(2005 S.C.M.R 1544), relevant portion is reproduced as under:-
“On consideration of
arguments of Dr. Qazi Khalid Ali, Additional
Advocate-General and Ch. Aitzaz Ahsan,
Senior Advocate Supreme Court and the case-law relied upon by both of them in
support of their respective contentions, there can be no dispute that an
application under section 249-A, Cr.P.C. can be
filed, taken up for hearing and decided at any time or stage of the proceedings
and the words “at any stage” denote that the application under section 249-A, Cr.P.C can be filed even before prosecution evidence had
been recorded or while the exercise of recording of evidence is going or when
the exercise is over. It is, however, to be noted that though there is no bar
for an accused person to file application under section 249-A, Cr.P.C. at any stage of the proceedings of the case yet the
facts and circumstances of the prosecution case will have to be kept in mind
and considered in deciding the viability or feasibility of filing an application
at any particular stage. The special or peculiar facts and circumstances of a
prosecution case may not warrant filing of an application at a stage when the
entire prosecution evidence had been recorded and the case was fixed for
recording of statement of the accused under section 342, Cr.P.C.
This Court in the case of Bashir Ahmed v. Zafar
ul Islam PLD 2004 SC 298 and Muhammad Sharif v.
The State and another PLD 1999 SC 1063 (supra) did not approve decision of
criminal cases on an application under section 249-A Cr.P.C.
or such allied or similar provisions of law, namely, section 265-K Cr.P.C. and observed that usually a criminal case should be
allowed to be disposed of on merits after recording of the prosecution
evidence, statement of the accused under section 342 Cr.P.C.
recording of statement of accused under section 340(2) Cr.P.C.
if so desired by the accused persons and hearing the arguments of the counsel
of the parties and that the provisions of section 249-A, section 265-K and
section 561-A of the Cr.P.C. should not normally be
pressed into action for decision of fate of a criminal case.”
7. From the tentative assessment of the
material/evidence placed on record, we have no hesitation to hold that charge
is not groundless and at this stage no finding can be recorded by this Court
that there is probability of the conviction of the applicant/accused in this
case. Deeper appreciation of the evidence is the exclusive function of the trial
Court. Learned trial Court for the valid and sound reasons has
dismissed the application under section 265-K Cr.P.C.
In the aforesaid case, principle has been laid down by the Honourable
Supreme Court while dealing with the powers of the Courts under section 561-A Cr.P.C. in quashing proceedings pending before the Trial
Court that when law provides a detailed enquiry into the offences for which an
accused has been sent up for trial then, ordinarily and normally the procedure
prescribed by law for deciding the fate of the criminal case should be
followed, unless some extraordinary circumstances are shown to exist to abandon
the regular course and follow the exceptional routes. In the Reference before
the Trial Court nothing exceptional has been brought on record rather there is
apparently, documentary evidence to connect the applicant/accused in the
commission of the offence.
8. For the above
stated facts and circumstances, we find no merit in the above Criminal Misc.
Application, the same is dismissed with direction to the
Trial Court to decide the Reference expeditiously under intimation to this
Court.
JUDGE
JUDGE
Gulsher/PA