Spl. Cr. Bail Application Nos.05, 06, 07,
08, 09, 12, 14, 15, 16 and 20 of 2011
Present
Mr. Justice Aqeel Ahmed Abbasi.
Faisal Ellahi, Sh: Zahid Iqbal Sehgal @ Billoo,
Muhammad Anwar, Asghar @ Javed, Abdul Karim,
Muhammad Imran, Muhammad Shafqat,
Mohsin Muhammad Hanif and Asif Imran…………………Applicants
Versus
The State………….. …………………………………………Respondent
Date of hearing : 04.08.2011 and 05.08.2011
Date of order : 11.08.2011
Applicants : through M/s Muhammad Ilyas Khan, Raja Sikandar Khan Yasir, Khaleeq Ahmed, Shamim Akhtar and Aqeel Ahmed, Advocates
Versus
Respondent through Mr. Rana Muhammad Shamim, Advocate and Mr. Muhammad Qasim, Standing Counsel alongwith I.O. Najeebullah Jafri, and Farhatullah Jafri
O R D E R
Aqeel Ahmed Abbasi, J. Being aggrieved and dissatisfied with the order dated 14.02.2011, 08.03.2011 and 15.03.2011 passed by learned Special Judge (Custom & Taxation) Karachi in Case No.06 of 2011 emanating from F.I.R No.418-DCI/7-5/FEST/INQ/10 registered under Section 2 (37) 2(9), 2(14) (a), 3, 6, 7, 8 (1) (a) and (d), 8A, 22(1), 23 (1), 25, 26(1) and 73 of Sales Tax Act, 1990 punishable under section 33, registered by Directorate General of Intelligence and Investigation- FBR, Karachi on 19.01.2011, whereby the learned Specail Judge (Customs & Taxation) Karachi rejected the bail applications of the applicants, the applicants have filed instant bail applications before this Court seeking their release on bail.
2. Through instant common order I intend to dispose of the above mentioned ten (10) bail applications of the accused persons as the same arise from the common FIR whereas the arguments advanced by the learned counsel for the applicants are almost common, however, with the distinction that in Cr. Bail Application Nos.12, 15 and 16 of 2011, the accused persons have not been nominated in the FIR and have been implicated in the crime in the interim challan submitted subsequently, whereas, in the remaining bail applications name of the accused persons have been mentioned.
3. Brief facts relevant for the purposes of disposal of instant bail applications and the prosecution story as stated in the FIR is as follows:-
“A credible information was received from a reliable source that M/s M. King International situated at Shop No. M 130 Jillani Centre Kharadar, Karachi having Sales Tax Registration No.1703280000482 are involved in issuance/receipts of fake invoices and its output is being used for claiming refund or input tax adjustment by other registered persons. In pursuance of Board’s approval C.No.4(4)STM/2005 dated 24th February, 2010, this Regional Office initiated investigative audit of M/s M. King International (hereinafter referred to as the registered person).
As per registration record of Sales Tax Department the registered person got the sales tax registration on 17.09.2008 and holds the category of Importer/Exporter/Wholesaler. A notice for production of record under Section 25 of the Sales Tax Act, 1990 vide C.No.481/DCI/8-10/FEST/Inq/G.1/10/1042 dated 12.03.2010 and subsequent reminder were issued to the registered person at registered address through Pakistan State Services Courier which were returned as undelivered with comments “Office not Exists.” Moreover, physical verification of the said premises was also conducted for the purpose of tracing the registered person. The verification team reported that “the said office has been closed for the last three or four years”. Moreover, letter for production of record was also issued as residential address of the owner of the registered person Mushtaq Masih S/o Sardar Masih bearing CNIC No.38403-7840098-3 at Gali No.02 Noori Gate Basti Mohalla Christian Colony, Sargodha vide C.No.481/DCI/8-10/FEST/Inq/G.1/10/1042 dated 13-05-2010 through Pakistan State Service Courier which was received back as undelivered with comments “Incomplete address”, which proves that the registered person got registration on fake documents and was only engaged in the business of issuance/receipts of fake invoices and causing huge loss to national exchequer.
In order to ascertain the factual position, letters to all the suppliers (08) of the registered person were sent for verification of the taxable purchases and input tax involved therein. Out of the 08 suppliers, 04 suppliers replied that they have never supplied any goods to M/s M. King International. Whereas 02 letters were received back as undelivered with the comments of the courier “No such consignee exists at given address or consignee office shifted” and reply in respect of the remaining 02 letters is still waited. Thus, it is clear that the registered person has claimed/adjusted inadmissible input tax amounting to Rs.33.435 Million by declaring fake purchases of goods/raw materials/services amounting to Rs.195.442 Million (Approx) from different suppliers during Oct 2008 to June-2009.
Furthermore, a letter to the registered person’s declared bank i.e Askari Bank, I.I.Chundrigar Road, Karachi was issued to seek information regarding Account No.227905135. In response M/s Askari Bank informed that the required bank account is incorrect which shows that the registered person had declared fake bank account. A contravention report covering tax period August 2008 to June 2009 has already been submitted in the office of the Chief Commissioner, Inland Revenue, R.T.O, Karachi for adjudication purpose. Permission to initiate criminal proceedings in this case has already been granted by the FBR, Islamabad vide letter C.No.4(4)STM/2005/162997-R dated 22-12-2010.
It is pertinent to mention here that during the course of investigation an Internet Café was traced from where monthly Sales Tax Returns of the registered person were uploaded on the website of the FBR. On inquiry from owner of the Internet Café Mr. Muhammad Shoaib S/o Ashraf, it revealed that Anees Elahi, his son Faisal Elahi and their relatives Sheikh Zahid Iqbal Sehgal Alias Biloo used to come in his café for filing the monthly Sales Tax Returns of M/s M. King International. He further disclosed in his statement that these persons also filed the monthly Sales Tax Returns in respect of the under mentioned units:-
i. M/s J.A International.
ii. M/s Amjad Traders
iii. M/s R.O.F Pakages
iv. M/s Royal Enterprises
v. M/s Shahid Impex
vi. M/s Umer Traders
vii. M/s Wali Enterprises
viii. M/s Buyers & Amp. Buyers
ix. M/s Zaib Brothers
x. M/s Nadeem Impex
xi. M/s Abassi Enterprises
xii. M/s NY Importer & Exporter
xiii. M/s Nine Star International
xiv. M/s S.B. Enterprises
xv. M/s Actuate Corporation
xvi. M/s A.A. Enterprises
xvii. M/s ACME International
xviii. M/s S.K. Enterprises.
In view of the above narrated facts, it is established that the registered person has claimed/adjusted inadmissible input tax as the suppliers from whom purchases have been shown, have never supplied the goods to M/s M. King International. Thus by claiming/adjusting inadmissible input tax through submitting fake and fraudulent Sales Tax Returns, declaring fake bank account and issuing fake Sales Tax invoices valuing Rs.195336,984, involving Sales Tax of Rs.33,418,218, the registered person has deprived the national exchequer to the tune of Rs.33,418,218 and the accused persons namely Mushtaq Masih, Anees Elahi, Faisal Elahi and Sheikh Zahid Iqbal Sehgal Alias Biloo have violated the provisions of the Sales Tax Act, 1990 as enumerated in column No.08 of this report.
Accused persons namely Faisal Elahi and Sheikh Zahid Iqbal Sehgal Alias Biloo were called at the office of the Directorate General of Intelligence & Investigation-FBR, Regional Office, Karachi on 19-01-2011 and they have been arrested after necessary confrontations and completion of legal formalities.
FIR is lodged accordingly. Further investigations are in progress and efforts are underway to arrest the owner of M/s M. King International, namely, Mushtaq Masih, Anees Elahi and other culprits involved in this case.”
4. Mr. Muhammad Ilyas Khan, advocate representing the applicants namely Muhammad Shafqat and Mohsin Muhammad Hanif in Cr. Bail Application No.15 of 2011, while leading the arguments submitted that accused persons are innocent and have been falsely implicated in the instant crime at the instance of prosecution on the basis of alleged confession by co-accused namely Shaikh Zahid Iqbal Sehgal while in police custody. Per learned counsel, neither the applicants are nominated in the FIR nor any role has been assigned to the applicants in the alleged crime, whereas the prosecution has falsely implicated the present applicants without having recovered any material which could possibly connect the present applicants with the alleged crime of tax fraud. It is contended by the learned counsel that neither the applicants are registered persons with the Sales Tax Department nor they are the beneficiaries of the alleged tax evasion, whereas only role assigned by the prosecution is of abatement whose ingredients are also missing altogether. Per learned counsel, the alleged confessional statement has no evidentiary value whereas the same could not be considered as inculpatory hence could not be relied upon to prosecute the applicants in the absence of any other evidence or the connecting material available with the prosecution. In this regard, learned counsel has referred to the provisions of Article 38 and 43 of Qanun-e-Shahadat Order, 1984. Learned counsel has also read out the FIR and the alleged sections under which the applicants are charged under the Sales Tax Act, 1990 to show that none of the provision is attracted in the facts and circumstances of this case as neither the applicants are registered persons nor they are the beneficiaries of the alleged tax evasion and fraud. It has been further argued that admittedly the prosecution has not arrested the main accused persons nominated in the FIR i.e. end user and the beneficiaries who have allegedly claimed inadmissible input adjustment on the basis of fake invoices and who are ultimate beneficiary of the alleged tax evasion and tax fraud. It has been further argued that no action whatsoever against such accused persons who are nominated in the FIR or against the tax officials who have actually abetted the alleged crime by approving and sanctioning the incorrect input out adjustment which was allegedly based on fake invoices and bills etc. Per learned counsel, the present applicant alongwith other applicants have been made escape goat by falsely implicated them whereas no action against the main accused persons and tax officials has been taken by the prosecution which reflects upon malafide on the part of prosecution agency. It is further argued that the applicants/accused were arrested on 02.02.2011 and are behind the bar since their arrest whereas the prosecution has not so far submitted the final challan in Court whereas three interim challans have so far been submitted and the matter is not proceeding before the trial Court. Per learned counsel, none of the alleged offence fall within the prohibitory clause whereas the maximum punishment in terms of section 33 of the Sales Tax Act, is either five years or fine or both which makes all the alleged offences as mentioned in the FIR as bailable offences and the release of the applicants under the circumstances on bail is the rule, whereas the rejection is exception. Learned counsel has vehemently argued that even the alleged offence is based on documentary evidence whereas applicants have been duly investigated by the prosecution agency and no substantial evidence or material has been recovered from the applicants, which could possibly connect them with the alleged crime whereas empty invoices, bills, letter heads and stamps have allegedly been recovered without preparing mashirnama and without associating any private witness in terms of section 103 Cr.P.C. Learned counsel has argued that there is no mention either in the FIR or interim challan about preparation of the mashirnama and associating independent witnesses at the time of alleged recovery. It is further argued by the learned counsel that as per instructions the accused persons nominated i.e. the end users have already paid the amount of tax allegedly evaded, whereas the present applicants are being dragged in this frivolous proceedings to cover-up the main accused persons. It is further contended that though the investigation has been completed and more than seven months have passed the prosecution has not submitted the final challan in Court which is clear violation of the provision of Section 173 Cr.P.C. It is further contended by the learned counsel that the applicants and all other accused persons who have been assigned some what similar role by the prosecution, are entitled to grant of bail by this Court as the case of the prosecution is full of contradiction and the matter requires further inquiry and does not fall within the prohibitory clause of section 497 (1) Cr.P.C. In support of his contentions, learned counsel has placed reliance on the following case-laws:
1. Akhtar Zaman Khan v. The State 201010 Y.L.R 804
2. Atta-ul-Haq v. The State 2006 M.L.D 1901
3. Masood and others v. The State P.L.D 2005 Peshawar 150
5. Mr.Raja Sikandar Khan Yasir, advocate representing the applicants namely, Muhammad Imran in Cr. Bail Application No.12 of 2011 has adopted the arguments of Mr. M. Ilyas Khan, advocate. However, in addition, he has submitted that the applicants are neither registered person nor tax officials, hence could not possibly be charged of the alleged tax evasion and fraud. It is further contended that none of the applicants who are before this Court, seeking bail, are the beneficiaries of the alleged tax fraud whereas registered persons nominated in the FIR as well as others who have allegedly claimed the input adjustment and filed their returns on the basis thereof, have reportedly deposited the evaded tax in the treasury whereas department has not taken any action against such registered persons who are the actual beneficiaries or against tax officials who have abatted the crime of tax fraud by approving and sanctioning the fake invoices of input and output adjustment as alleged in the FIR. In support of his contention, learned counsel has placed reliance on the following judgments:-
1. Arshad Mahmood v. The State 1985 P. Cr.L.J 2048
2. Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488
3. Akhtar Zaman Khan v. The State 2009 P.Cr.R. 1482
4. Syed Amir Ahmed Hashmi v. The State P.L.D 2004 Karachi 617
5. Muhammad Nadeem Siddiqui v. The State 2008 Y.L.R 2666
6. Akhtar Zaman Khan v. The State 201010 Y.L.R 804
7. Muhammad Aslam v. The State Spl. Cr.Bail Appln No.19/2001(unreported)
8. Spl. Cr. Bail No.18 and 19 of 2003
6. In Cr. Bail Application No.20 of 2011 filed by applicant Abdul Karim, the learned counsel Mr. Raja Sikandar Khan Yasir, while representing the applicant namely, Shaikh Zahid Iqbal Sehgal, however, in addition to submissions made hereinabove has submitted that the applicant has been falsely implicated in the instant crime on the allegation of using Internet Café for the purposes of up-loading monthly tax returns whereas nobody can have access to the pin code of the registered person/company which is to be allotted by Sale Tax Department after physical verification. It is further contended that no direct role has been assigned to the applicant about the alleged tax fraud whereas the applicant is not the beneficiary of the alleged tax evasion as neither he is registered person or the end user who has claimed the input adjustment allegedly on the basis of fake invoices, nor he is tax official who could possibly connive and abate in the alleged crime. Per learned counsel, no recovery has been effected from the applicant which could possibly connect him with the alleged crime, whereas no mashirnama has been prepared at the spot in the presence of two independent eye-witnesses which is violation of provision of section 103 Cr.P.C. It is further argued that inspite of considerable lapse of time period i.e. seven months, the prosecution has not submitted final challan, which is clear violation of provision of section 173 Cr.P.C, whereas the applicants who are behind the bars since their arrest are facing hardship on account of illegalities committed by prosecution.
7. Mr. Khaleeq Ahmed, advocate representing the applicant namely, Asif Imran in Cr. Bail Application No.16 of 2011 has adopted the arguments of Mr. M. Ilyas Khan and Raja Sikandar Khan Yasir, however, in addition to the case law relied upon by the learned counsel above mentioned, he has also placed reliance in the case of Muhammad Anis v. The State 2008 P.L.D Karachi 1.
8. Ms Shamim Akhter, advocate representing the applicant namely Faisal Elahi in Cr. Bail Application No.14 of 2011 has adopted the arguments of both the learned counsel namely Mr. M. Ilyas Khan and Mr. Raja Sikandar Khan Yasir.
9. Mr. Aqil Ahmed, advocate representing the applicants namely, Faisal Elahi and Sh. Zahid Iqbal Sehgal @ Billoo in Cr. Bail No.05 of 2011, Muhammad Anwar in Cr. Bail Application No.06 of 2011, Asghar @ Javed in Cr. Bail Application No.07 of 2011, Abdul Karim in Cr. Bail Application No.08 of 2011 and Muhammad Imran in Cr. Bail Application No.09 of 2011 has also adopted the arguments advanced by both the learned counsel namely, Mr. M. Ilyas Khan and Mr. Raja Sikandar Khan Yasir, however, in addition to the case law relied upon by the above named learned counsel has also placed reliance in the case of Saeed Ahmed v. The State 1996 SCMR 1132.
10. Conversely, Mr. Rana M. Shamim, learned counsel representing the department has opposed the grant of bail to the applicants and submitted that since all the applicants have abatted in tax fraud committed jointly by all of the accused persons, which has caused loss to the government exchequer, therefore, the applicants are not entitled to bail. It is contended by the learned counsel that in fact proceedings were initiated on a complaint of M/s Al-Ahad against M/s King International i.e. registered persons, which per learned counsel is owned and run by Shaikh Zahid Iqbal, Muhammad Aslam Sehgal and Faisal Elahi. Per learned counsel, the complaint was regarding issuance of fake invoices by M/s King International. It was further complained that no supplies were made by M/s King International to the complainant. Per learned counsel, recovery has also been effected in the shape of stamps, blank invoices, bills, letter heads as well as utility bills, whereas accused persons have accepted their guilt and further arrest have been made on their pointation. It is further contended that the statement of co-accused under the circumstances can be taken into consideration when it is in conformity with the allegations as contained in the FIR. As regards arguments of the learned counsel for the applicants regarding offence not falling within the prohibitory clause, learned counsel could not controvert such legal position, however, submitted that even if the case does not fall within the prohibitory clause, bail can be declined in special circumstances. In support of his contention, learned counsel has placed reliance on the following judgments:
1. Naseem Malik v. The State 2004 SCMR 283
2. Shah Muhammad v. The State 1996 SCMR 981
3. Haji Muhammad Nazar v. The State 2008 SCMR 807
4. Muhammad Siddique v. Imtiaz Begum 2002 SCMR 442
5. Imtiaz Ahmed v. The State PLD 1997 SC 545
6. Pir Bakhsh v. The State 1999 P.Cr.L.J 111
11. I.O. of the case, who was present in Court when confronted as to why the final challan has not been submitted in Court inspite of considerable lapse of about seven months and when the investigation is almost complete and documents have allegedly been recovered from the accused persons, he could not satisfactorily respond to such query. However, has admitted that the present applicants are no more required for further investigation. He further conceded that no action so far has been taken against the registered persons i.e. end of users who allegedly claimed input adjustment of tax based upon fake invoices allegedly prepared and issued by the present applicants. He further admitted that no action has been taken against tax officials who abated and connived in the alleged tax fraud. When the I.O. was inquired as to whether any adjudication proceedings have been initiated for the proper assessment and for the recovery of the amount of tax which has allegedly been evaded by the registered persons, he stated that no adjudication proceedings have been made as an amount of approximately Rs.105 million has been voluntary paid, which is even more than the amount as stated in the FIR, by four registered persons namely Omega Industries, M/s Atlas Cable, Atlas Battery and M/s Metropolitan Steel.
12. I have heard all the learned counsel for the parties, the I.O. of the case, perused the record and examined the case-laws relied upon by both the parties. From perusal of the FIR, three interim challans submitted in Court and in view of the statements of the I.O of the case, it appears that no action has been taken by the prosecution against the registered persons i.e. the end user who claimed input tax adjustment allegedly based on fake invoices prepared and issued by the present applicants. There is no mention in the FIR or interim challan about preparation of the mashirnama at the spot, and associating two independent private witnesses as required under section 103 Cr.P.C. The alleged offence admittedly does not fall within the prohibitory clause of section 497 Cr.P.C, whereas punishment under section 33 of the Sales Tax Act, 1990 is five years or fine or both, which may be determined after taking evidence and on conclusion of the proceedings. The prosecution case is based on the documentary evidence which has allegedly been recovered from the possession of the present applicants/accused whereas investigation has been completed and the applicants/accused are no more required for further investigation. The applicants are behind the bar since their arrest, whereas trial has not yet commenced even after a lapse of considerable period of seven months from their arrest, which reflects upon the mala-fide of the prosecution. It appears that the prosecution could not so far fix criminal liability of alleged tax fraud upon the present applicants. No action whatsoever has so far been admittedly taken against the main accused persons nor the proper adjudication proceedings, as stated by I.O, have yet been initiated to find out the extent of the tax evasion involved in the instant case, as well as the extent of criminal liability of the accused persons in this case.
13. Under the circumstances, I am of the view that the applicants have been able to show that the prosecution story cannot be treated as free from doubt and the matter requires further inquiry whereas offence does not fall within the prohibitory clause of section 497 Cr.P.C. The case-law relied upon by the learned counsel for the applicants appears to be relevant and attracted in the facts and circumstances of the case, whereas the case-law relied upon by the learned counsel for the department is based on distinguishable facts hence not attracted in the instant case. The applicants have no previous history, whereas the alleged confessional statement before the police in the absence of any other connecting material, cannot be given due weight at this stage. In the case of Akhtar Zaman Khan v. The State 2009 P.Cr.R 1482, a Division Bench of Lahore High Court, under some what similar circumstances in a case of sales tax evasion, while granting bail to the applicant/accused has held that the accused cannot be denied bail only on the ground that he has caused huge loss to public exchequer. Reliance in this regard was placed on the judgment of the Hon’ble Supreme Court reported as Tariq Bashir and 5 others v. The State (PLD 1995 Sc 34).
14. In the case of Zafar Iqbal Vs. Muhammad Anwar and others reported as 2009 SCMR 1488, Full Bench of the Hon'ble Supreme Court, headed by the Hon'ble Chief Justice, while placing reliance in the cases of Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Subhan Khan v. The State 2002 SCMR 1797 has held that "Courts, in cases where offence falls within the non-prohibitory clause of Section 497 Cr.P.C., consider favourably by granting bail as a rule but decline to do so in the exceptional cases. As far as exceptional circumstances are concerned those are to be taken into consideration depending upon each case.”
15. Similarly, in the case of Saeed Ahmed v. The State 1996 SCMR 1132, the Hon'ble Supreme Court has held that “case against accused entirely depended upon documentary evidence which was in possession of the prosecution and there is no possibility of tampering with the evidence, petitioner and the accused was admitted on bail.”
16. In view of hereinabove facts and case law referred to hereinabove, keeping the applicants behind the bar will amount to pre-trial punishment on the charges which do not fall within prohibitory clause of section 497(1) Cr.P.C. Accordingly, applicants in Cr. Bail Application Nos.12, 15 and 20 of 2011, who were not nominated in the FIR are granted bail subject to furnishing surety in the sum of Rs.1,00,000/- (Rupees One Lac) each and P.R. bond in the like amount to the satisfaction of the learned trial Court. Whereas, applicants in Cr. Bail Application Nos. 5, 6, 7, 8, 9, 14 and 16 of 2011 who have been nominated in the FIR are admitted to bail subject to furnishing surety in the sum of Rs.2,00,000/- (Rupees Two Lac) each and P.R. bond in the like amount to the satisfaction of the learned trial Court.
17. Needless to observe that the observations made herein are tentative in nature and shall not prejudice the merits of the case which may be examined strictly in accordance with law and on the basis of evidence on record. Applicants will continue to be associated with investigation and shall attend the Court proceedings without fail.
18. However, it is clarified that if, the applicants misuse the concession of bail in any manner, the learned trial Court shall be at liberty to proceed against the applicants as per law.
JUDGE