ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Crl. Bail Application Nos. 1322/2013, 1707, 1705, 1704, 1703, 1708, 1709, 1710, 1712, 1713, 1714, 1715 & 1716 of 2014
Date Order with Signature of Judge
Mirza Kareem Baig Vs. The State
23.09.2014
M/s. Kumail Sheerazi and Zulfiqar Ali Langha, Advocates for the Applicant.
Applicant is also present.
Mr. Mohammad Aslam Butt D.A.G.
Inspector Ali Hassan Zardari, Inspector Mohammad Sajjad Khan, Inspector Deedar Sheikh, Inspector Anwar Ali Shah, Inspector Bashir Soomro, SIP Ziaullah, SIP Irfan Memon, SIP Rahat Khan SIP Adnan Dilawar, SIP Zahoor Ahmed and SIP Anwar Ismail, Officials of FIA are also present.
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Muhammad Ali Mazhar, J. The applicant has applied for pre-arrest bail in Crime Nos. 26/2013, 09/2014, 51/2013, 08/2014, 07/2014, 22/2014, 03/2014, 04/2014, 06/2014, 10/2014, 01/2014, 77/2013 & 02/2014, lodged under Section 409, 420, 468, 471 & 109 PPC read with Section 5 (2) of the Prevention of Corruption Act 1947, at F.I.A Crime Circle, Karachi.
2. The applicant is a former Secretary of Trade Development Authority of Pakistan (TDAP). Consequent upon an Enquiry No.38/2012, conducted by F.I.A, it was transpired that under the trade policy issued by Government of Pakistan to award 25% freight subsidy as an incentive to the exporters for the export of new products and export to new markets a massive corruption in the incentive scheme was detected. The scheme was introduced and the modalities to claim the incentive was circulated through different public notices. In the above F.I.Rs various companies have been nominated as accused along with T.D.A.P officials including the applicant, who allegedly obtained incentive of freight subsidy upon submission of forged and fake export documents. Since the allegations against the present applicant are same in all FIRs hence, I took up Crime No.26/2013 in which it is stated that in connivance and in collusion with accused Mircho Mal Khatri, Javed Anwar, the then Director General, Abdul Kareem Dawood Pota, the then Director General T.D.A.P and the present applicant Mirza Kareem Baig, the then Secretary T.D.A.P with some other accused persons succeeded in getting amount of subsidy claims on submission of forged and fictitious documents. The prosecution in all FIRs have also mentioned the embezzled amount separately against the name of each individual company.
3. The learned counsel for the applicant argued that the applicant is senior bureaucrat who was posted in T.D.A.P in the month of January 2009, while the freight subsidy incentive policy was already in vogue before his induction in the T.D.A.P. He further argued that no specific role has been assigned to the present applicant in F.I.Rs. According to the public notices, the exporters were supposed to lodge their claims along with supporting documents with the bank and it was the duty of bank to scrutinize, verify and forward the claim for pre-audit and eventually payment were made by the bank on proper verification. He further argued that not a single iota of evidence has been placed on record against the applicant to show that he was benefited with any such amount of misappropriation or embezzlement. He further argued that the applicant never signed or verified any document or claim for freight subsidy. Learned counsel pointed out a note sheet dated 15.04.2010. In note number 733, the present applicant himself suggested that further payment from Export Development Fund may not be pursued until the entire payment released for freight subsidy scheme be cleared/certified by the Auditor General of Pakistan. In the same line he further suggested that this chapter may provisionally be closed until the final clearance of the Auditor General of Pakistan. For ready reference the Note No.731 to 733 available in bail application No.1322/2013 are reproduced as under:-
“731. TDAP has requested EDF Board for an additional amount of Rs.488 million for the Freight Subsidy Scheme in September, 2009 to satisfy entire claims of Freight Subsidy vide our letter No.TDAP-2(21)/FS/FAC/09 dated 29-07-2009 (Flag-A) which was also approved by CE. Rs.436 million were paid by the MoC due to paucity of fund in EDF account. Now MoC has requested TDAP to provide a Working Paper for EDF Board seeking ex-post-facto approval of the Board for release of Rs.436 million as Rs.52 million only is the balance to be released by MoC against latest claim of TDAP, as mentioned above.
732. I have sent a letter dated 4.11.2009 (Flag-B) to the Auditor General of Pakistan requesting for post audit of claims/payments against Freight Subsidy Scheme until the last release of EDF Board. A reminder dated 2.4.2010 (Flag-C) was also sent to the Auditor General of Pakistan and its reply is still awaited.
733. Therefore, it is suggested that we may not pursue further payment from the EDF until the entire payments released for Freight Subsidy Scheme be cleared/certified by the Auditors of Auditor General of Pakistan’s office. it is also suggested that we may provisionally close the chapter until the final clearance of the Auditor General of Pakistan.
Mirza Kareem Baig
(Secretary)”
4. The learned counsel further pointed out that for implementation and monitoring the scheme, a steering committee was to be constituted comprising twelve members, including the Chairman Export Promotion Bureau and Director General and it was the responsibility of the steering committee to monitor the working of the scheme, review the rules and implementation of the scheme and make such modification and determine the admissibility of the freight subsidy claims in individual cases referred to it and also advice the recovery of the subsidy wrongly made to the exporters. Learned counsel further contended that the administrative role of the applicant requires further inquiry.
5. On the contrary, Mr. Mohammad Aslam Butt learned D.A.G argued that the applicant had an administrative role being the Secretary of T.D.A.P and he was also responsible to look after the affairs including the claims of 25% freight subsidy obtained by the different companies on production of forged and fake documents. He further argued that under the 52nd meeting of the Export Development Fund Board convened on 04.02.2008, T.D.A.P sanctioned Rs.350 million for disbursement to pending claims and to clear the back log of general freight subsidy claims. In the 54th meeting of the board held on 20.03.2009, further amount of Rs.283 million was sanctioned to enable T.D.A.P to clear the back log of the pending claims. A question was asked by this court to the learned D.A.G whether prosecution has secured any evidence to show that the applicant has obtained any benefit or monitory gain from the misappropriated or embezzled amount? The learned D.A.G fairly conceded that nothing is available on record to connect the applicant or to demonstrate that he was benefited with any amount obtained through misappropriation or embezzlement of government exchequer. I.Os present in the Court also stated that the applicant had not sanctioned or verified any claim of freight subsidy. However, the learned D.A.G. and I.Os in one voice contended that being Secretary the applicant had an administrative responsibility to check all the claims but he failed to perform his duties diligently.
6. Heard the arguments. Learned counsel for the applicant invited my attention to the details of posting of the applicant to show that he was transferred in T.D.A.P on deputation in B.S-22 in the month of January 2009 which means that applicant was not the partaker in the 52nd meeting convened on 4.2.2008. It is also an admitted fact that freight subsidy incentive scheme was to be monitored and implemented by the Steering Committee and mandate of the steering committee was to monitor the scheme including the review of the rules and implementation of the scheme including determination and admissibility of the freight subsidy claims under individual cases referred to it and to advise for the recovery of subsidy payment that may have been made wrongly to any exporter. The steering committee was said to be assisted by a Technical Committee comprising Director General (PPI) EPB, Consultant (Policy) EPB, Additional Collector of Customs (Exports) Karachi, a representative of Chairman of the Air Cargo Agents Association, a representative of the Freight Forwarders Association, Chairman of the Fruits and Vegetables Exports Association, however, Manager National Bank and Deputy Director (Freight Subsidy) in EPB was acting as secretary to the Technical Committee. What I understand that a detailed procedure was formulated so that the incentive or the benefit of policy may be passed on to the deserving persons/companies in a fool proof and transparent manner, however, despite developing such a lengthy foolproof and watertight procedure, it was found that various companies succeeded in getting freight subsidy claims on the basis of forged and fake documents. The applicant was performing his duty as Secretary and his opinion in the note sheet do show that he himself suggested that further claims may not be pursued for payment unless it was cleared or certified by the auditors of the Auditor General of Pakistan and his suggestion was concurred by the Chief Executive of the TDAP.
7. Nothing has been placed by prosecution on the record except that the applicant had an administrative role being the Secretary who has been implicated only for the reason that he was responsible to the affairs of T.D.A.P. Mere sitting in a board meeting where various other members of the board were also present for taking a joint decision, the applicant cannot be held solely responsible for sanctioning the amount for satisfying the pending claims or to clear the back log of the pending claims. It is not the case that he was the only person who sanctioned the huge claims against some unlawful monetary gains or benefit, even otherwise, sanctioning of amount does not mean that false or bogus freight subsidy claims should be approved or honoured without complying with the detailed procedure provided in the scheme. The prosecution has not placed any evidence at this stage to show that applicant has gained any monitory benefit from misappropriated or embezzled funds obtained by the individual companies nor the prosecution placed anything to show that any fake freight subsidy claim was approved by the applicant.
8. To my mind, the role of present applicant requires further inquiry and the prosecution has to explore every avenue to prove his guilt including the element of mens rea. The basic concept of bail is that liberty of an innocent person is not to be curtailed unless and until proved otherwise. Deep appraisal and detailed discussion of evidence is not permissible and court should not cross the barrier of permissible limits of law while making tentative assessment of the evidence at the bail stage. The exercise of this power should, however, be confined to the cases in which a good prima facie ground is made out for the grant of bail in respect of the offence alleged. To all intent and purposes, the bail before arrest cannot be granted unless the person seeking it, satisfies the conditions specified under Sub-section (2) of Section 497 of Code of Criminal Procedure and establishes the existence of reasonable grounds leading to a belief that he is not guilty of the offence alleged against him and that there are in fact, sufficient grounds warranting further inquiry.
9. The learned DAG. did not oppose the bail applications on the ground that the applicant before first approaching to the trial court has moved bail applications in this court, however on court motion, I would like to touch this point also. No doubt in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance, approach the court of first instance, however from the guidelines laid down by the honorable supreme court in the case of Rana Muhammad Arshad, it is amply visible that only in absence of reasonable and justifiable cause, the condition of first approaching the trial court is applicable which other way round means that if the applicant makes out reasonable and justifiable cause he can approach the High Court directly for bail before arrest. The applicant has also filed a Constitution Petition No.5001/2013 in this court alleging therein that out of one and the same Enquiry No.38/2012, FIA has already lodged various FIRs against the applicant so he prayed to the learned divisional bench that FIA may be restrained not lodge any further FIR against the applicant in Enquiry No.38/2012. On 29.11.2013, the learned divisional bench of this court while issuing notice to DAG., restrained the FIA not to arrest the applicant in any case arising from Enquiry No.38/2012. Though the applicant was not arrested but it is a fact that despite this order, he has been implicated in many more FIRs. Many other pre-arrest bail applications were filed by different applicants which were not only entertained directly by the other learned judges of this court but the said applicants were also granted interim bails. Since in TDAP matters, many bail applications were placed before different benches hence the honourable Chief Justice through an administrative order assigned all bail applications to me for disposal in accordance with law.
10. The honourable Supreme Court in the case of Rais Wazir Ahmed, reported in 2004 SCMR 1167, held that normally a person against whom a case has been registered, may approach in the first instance to the original court i.e. the Sessions Judge for bail before arrest because propriety so demands, but it is not an absolute rule as, depending upon the compelling circumstances of each case, a person can directly approach to the High Court by invoking its concurrent jurisdiction. If, however, such an application has been moved before the High Court and it has entertained the same and granted ad interim bail to the applicant, then instead of dismissing same on technical grounds it should dispose it of on merits. In the present case also not only the bail applications were entertained but the applicant was also granted interim bail, therefore, it would not advance the cause of justice to technically knockout the applicant.
11. At this juncture, I would like to quote bail orders authored by me in some other cases which are reported as under:-
(1) 2012 YLR 633 (Kashif Raza v. The State). Section 498. Pre-arrest bail. Basic concept of bail is that liberty of an innocent person is not to be curtailed until and unless proved otherwise. Pre-arrest bail can be extended to a person who does not, prime facie, appear to have committed a non-bailable offence or there is room for further probe into his guilt within the meaning of Section 497 (2). Cr.P.C.
(2) 2012 P.Cr.L.J. 1601 (Shahid Ali Dharejo v. The State). Section 497/498. Deep appraisal and detailed discussion of evidence at bail stage so as to prejudice the merits of the case of either party at the trial is not permitted and expression of the opinion on merits of the case was deprecated. Courts cannot cross the barrier of permissible limits of law while making tentative assessment of the evidence at the bail stage.
(3) 2012 P Cr. L.J 1181 (Muhammad Arshad v. The State). In this case, the dictum laid down in the case of Rana Muhammad Arshad v. Muhammad Rafique (PLD 2009 SC 427), was quoted in which the honorable Supreme Court held that in a proper case, the High court has power under Section 498, Criminal Procedure Code, to make an order that a person who is suspected of an offence for which he may be arrested by a Police Officer or a court, shall be admitted to bail. The exercise of this power should, however, be confined to cases in which not only a good prima facie ground is made out for the grant of bail in respect of the offence alleged, but also it should be shown that if the petitioner were to be arrested and refused bail, such an order would in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such an eventuality suffer irreparable harm.
(4) 2012 M.L.D 574 (Suleman v. The State). Sections 497 & 498 Cr.P.C. Deeper appreciation of material placed on record was not required at bail stage. In order to reach at some logical conclusion, court could tentatively assess the material available on record to find out whether accused was entitled for the grant of bail or not.
12. A person can be charged for criminal breach of trust under Section 409 P.P.C, if he is a public servant, banker, merchant or agent. Delinquent can be punished with imprisonment for life or with imprisonment either description for a term which may extend to ten years with fine. Similarly, the charge of Section 420 and 468 P.P.C needs to be read with Section 109 P.P.C in this case. Whether the applicant has committed the above offences independently or as an abettor it needs to be thrashed out in the evidence which requires further inquiry. Object of trial is to make an accused to face the trial and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Accused is also entitled to an expeditious access to justice, which includes a right to fair and expeditious trial.
13. As a result of above discussion, the interim pre-arrest bail granted to the applicant is hereby confirmed in all the FIRs mentioned above. The applicant is directed to deposit his original and valid passport in the trial court and shall not leave the country without permission of the trial court. The applicant shall also appear regularly in the trial court and in case of default; the prosecution may apply for cancellation of bail in the trial court. The above findings are tentative in nature and shall not prejudice the case of either party.