ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Crl.B.A.No.1198, 1199, 1200, 1201, 1202,

1203, 1204, 1205, 1206, 1207, 1236,

1323, 1337/2013 & Cr.B.A.No.121, 122,

123, 124, 125, 126, 127 & 128/2014

________________________________________________________

Order with signature of Judge

Younus Rizwani…………………VS…..……………. State

Date of hearing 16.10.2014

M/s. Hassaan Sabir and Ayaz Ansari, Advocates for the Applicant.

Applicant is also present.

Mr.M.Aslam Butt, DAG.

Inspector Ali Hassan Zardari, Inspector Deedar Ali Shaikh, Inspector Anwar Shah Bukhari, Inspector M.Sajjad Khan, Inspector Bashir Soomro, SI Rahat Khan, S.I. Adnan Dilawar, S.I. Irfan Memon, S.I. Amin Memon and S.I. Ziaullah Officials of FIA are also present

………

Muhammad Ali Mazhar, J: The applicant has applied for pre-arrest bail in Crime Nos.25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 39, 43, 44, 45, 46, 47, 48, 49, 51, 55, 59, and 76 of 2013.

2. Since the allegations against the applicant are same in all crime numbers thus for conciseness, I take in hand FIR No.25/2013. The short-lived substance of FIR is that an enquiry (Enquiry No.38/2012) was conducted by the FIA, Crime Circle, Karachi which revealed massive corruption and embezzlement of government exchequer under the Trade Policy Freight Subsidy Incentive Scheme introduced by the Government of Pakistan for the export of new products and export to new markets in view of the Public Notices published in the newspapers from time to time wherein mechanism and other details for claiming freight subsidy, documents required for it including pre-audit procedure and payments thereof were specified. In all FIRs, officials of TDAP, their Chartered Accountant Firm appointed for pre-audit and individual companies/persons are made accused. In Crime No.25/2013, company name was Wasi International and its Proprietor Syed Saleem Ahmed is accused of managing fake export documents to obtain claim of freight subsidy in connivance and in collusion with and abetment of project officer of freight subsidy, TDAP and other officials including the present applicant. The allegations against applicant is that being a partner of Chartered Accountant Firm, (Awais Haider Noman Rizwani) he approved the freight subsidy claims on the basis of forged and fabricated documents.

3. The learned counsel for the applicant argued that applicant is innocent and has been falsely implicated in this case. Though he did not controvert the position that applicant was not partner of Chartered Accountant Firm but he invited my attention to a Deed of Retirement dated 16.12.2006 to demonstrate that the applicant opted retirement from partnership firm with effect from 31.12.2006. He further argued that on the basis of one and the same Inquiry, the applicant has been implicated in various criminal cases with mala fide intention and being aggrieved, the applicant had filed a C.P.No.D-4394/2013 in this court and vide consent order dated 25.06.2014, the petition was disposed of by the learned divisional bench in the following terms:-

“6. Accordingly, instant petition is being disposed of by consent with directions to the respondents not to register further FIRs against the petitioner Younus Rizwani Shaikh pursuant to Inquiry No.38 of 2012 nor he shall be arrested in respect of those F.I.Rs which would have so far been registered against him pursuant to aforesaid inquiry. However, the petitioner shall join the investigation and continue to attend the learned trial court and shall be at liberty to file appropriate proceedings seeking quashment of the FIRs and the proceedings in accordance with law before the proper court of jurisdiction in accordance with law.

The petition stands disposed of in the above terms along with listed application.”

4. Mr.M.Aslam Butt, learned DAG with the assistance of present I.Os argued that though in the above C.P., the consent was given but at the same time it is an admitted fact that applicant was also a partner of Chartered Accountant Firm and he continued his association despite claiming his retirement under the deed of retirement produced before this court. He shown me three cheques of KASB Bank which were issued in the year 2012 under the signatures of present applicant and this account was being maintained by Chartered Accountant Firm (Awais Haider Noman Rizwani). The above cheques were signed by the applicant in his own favour. The learned DAG. argued that the applicant is himself a beneficiary of the above amount which shows that he had an authority and bank mandate to sign the cheques of the Firm’s bank account even in the year 2012. Lastly it was contended by the learned DAG that the pre-arrest bail of the applicant may be confirmed subject to deposit of equivalent amount of cheques issued in the name of applicant which amount was transferred and credited in his bank account.

5. The learned counsel for the applicant did not controvert or deny the signature of the applicant on the cheques nor the transfer/credit of the amount mentioned in the cheque in the account of applicant but he argued that the cheques signed by the applicant in his own favour was his professional fee which was to be paid by the firm to him. In this regard, he again invited my attention to the Deed of Retirement which provides that despite retirement of applicant and another partner from the firm, they were allowed to complete the pending assignments till 31.03.2007 and in Clause-4 of the Deed of Retirement, a proviso was also added which shows that present applicant being an outgoing partner was allowed to continue to operate bank account of the firm till 30.06.2007. The learned counsel for the applicant argued that in view of the order passed by the divisional bench of this court restraining the FIA from making arrest of the applicant in any FIR lodged in consequences of Enquiry No.38/2012, the applicant deserves confirmation of bail and despite aforesaid FIRs in field, the prosecution cannot arrest the applicant in view of the order passed in the constitution petition by this court.

6. To start with, let me discuss the Agreement for the Pre-Audit of Export Subsidy Claims executed on 18.2.2015 between M/s.Avais Hyder Nauman Rizwani (Chartered Accountants) through its Partner Mr.Younus Riwani Sheikh, (Applicant) and Export Promotion Bureau through which the task was assigned to the chartered accountant firm for pre-auditing the documents of frieight subsidy claims. The relevant clauses of agreement are as under:-

“Audit Process. (Page No.3 of the agreement)

1.That the AHNR will conduct the pre-audit of all export subsidy claims; the detail of the audit process is as under:

- Initially all the exporters will file their claims with their commercial banks.

- Exporter’s commercial banks will forward the acceptable claims to the National Bank of Pakistan (F.T.C. Branch Karachi) within 10 (Ten) Days of the receipt of the claims.

- National Bank of Pakistan will forward the claims to the Auditors within 7 (seven) days of the receipt of the claims.

- Auditors will have to audit each claim and forward the acceptable claims to National Bank within 7 (Seven) days, with covering letter as per Annexure-V of the Public Notice issued by EPB.

- If the claim is not valid, Auditors will return the claim to the exporter through NBP FTC, Branch Karachi under covering letter giving reasons for non-acceptance within 7 days of its receipt.

- NBP FTC Branch will forward the claims to the exports bank for rectification of the objections/mistakes.

- If the claim is not valid, the Auditors will return the claim to the National Bank of Pakistan (FTC Branch) under covering letter giving reasons for non-acceptance of the claim within 10 days of the receipt of the claim. If a claim filed in time is thus returned by the Auditors, it will not be treated as time barred when re-presented later, after removing the objections by the Auditors, within 30 days of the objection memo by the Auditors unless the time limit is extended by EPB on the request of exporter.

- Auditors will process 300 cases of claim on average daily basis.

- 7 days grace period is required by the Auditors for data entry. This 7 day period will commence from the date of handing over the cases presently lying with EPB to the Auditors.

- Auditor will maintain a database on all freight subsidy receiving, receipts payments, by country and by products and provide copies of this to EPB on monthly basis latest by the 7^th of the following month.

PRE-AUDIT METHODOLOGY: (Page No.4 of the agreement)

2. The application of freight subsidy (Annexure III of Public Notice) must be accompanied with the following documents.

a) Summary of Claim, (Annexure IV of the public notice)

b) Forwarding letter of Exporter’s bank duly authenticated by the concerned bank.

c) Copy of Commercial Invoice.

d) 4^th copy of the shipping bill in/Goods Declaration in original (introduced by the customs) which must bear the reporter’s rubber stamp “Under Freight Subsidy Claims”, with one photocopy set duly certified by the Manager of the dealing bank, a copy of which will be retained. The original fourth copy of shipping bill /G.D. will be returned to the exporter after making an endorsement “Freight Subsidy Claimed” in hand or rubber stamp by the manager Bank. Where original fourth copy is not available, a photocopy attested by the Assistant Collector of Custom concerned be provided.

e) Copy of bill of a lading / airway bill certified by the shipping company / shipping agent / airline. In case of freight booked by the Freight Forwarder / Air Cargo agent, a certificate from the concerned association of Freight Forwarder/Air Cargo Agents on their letterhead certifying the freight paid on the shipment, description of goods and destination of the shipment along with the copy of house bill of lading / house airway bill.

f) Original freight paid receipt/invoice issued by the concerned Shipping Company / Shipping Agent / Airline / Trucking Company / Pakistan Railways or by the Freight Fowarder / Cargo Agent.

g) In case of FOB shipments, certificate by the concerned Shipping company/Airline of the freight being paid on the shipment description of goods, destination and confirmation (for the sea cargo) that the cargo was “containerized”.

h) A copy of Bank Credit Advice (BCA).

i) A check list of required documents (Annexure VI of Public Notice).

7. It is admitted that three cheques were signed by the applicant Younus Rizwani being the signing authority of the Chartered Accountant Firm’s Account in the year 2012. Not only he signed the cheques but the said cheques were also issued in his own name as payee. According to the details, Cheque No.5411061 amounting to Rs.9,50,000 dated 11.04.2012 drawn on KASB Bank Shahrah-e-Faisal Branch Karachi was credited in the applicant’s Account at Askari Bank Ltd. Shahrah-e-Faisal Branch Karachi on 12.04.2012, Cheque No.5411064 amounting to Rs.1,40,000/- dated 27.06.2012 drawn on KASB Bank Shahrah-e-Faisal Branch Karachi was credited in the applicant’s Account maintained at Dubai Islamic Bank, Tariq Road Branch, Karachi on 28.01.2012 and Cheque No.5411062 amounting to Rs.12,20,000/- dated 16.05.2012 drawn on KASB Bank Shahrah-e-Faisal Branch Karachi was credited in the applicant’s Account at Askari Bank Ltd. Shahrah-e-Faisal Branch, Karachi on 17.05.2012.

8. The learned counsel for the applicant made much emphasis that in C.P.No.D-4394/2013, the learned divisional bench of this court has already provided protection to the same applicant with the directions to the respondents not to register further FIR against the applicant pursuant to Enquiry No.38/2012 nor he shall be arrested in respect of those FIRs which would have been registered against him pursuant to aforesaid enquiry, therefore, the applicant in the above bail application merits confirmation. What I understand which is also a correct legal position in my view that the constitutional jurisdiction conferred upon this court under Article 199 of the Constitution and power and or jurisdiction to grant bail under the provisions of Cr.P.C. are two different and distinct jurisdiction having different premise and one jurisdiction does not override or superimpose the other. If the learned counsel was so confident then instead of claiming confirmation he would have out rightly withdrawn the bail applications resting upon the order passed in the constitution petition but despite aforesaid order in constitution petition he wants confirmation as well. It is also strange to note that before the divisional bench, the learned Additional Attorney General appeared and gave no objection in the constitution petition while the D.A.G. in the bail applications produced three cheques in which beneficiary of the cheques is the present applicant who has been given absolute protection in the C.P order who signed the cheques in his own favour in the year 2012. However, the learned D.A.G. conceded his no objection to the confirmation of bail subject to deposit of equivalent amount of three cheques. It looks to me perhaps the proper assistance was not provided to the divisional bench nor the copies of cheques seem to have been produced before the bench though the counsel for the applicant argued that all the material was placed before the learned divisional bench of this court.

9. On his own showing, the applicant was retired with effect from 31.12.2006 but being an outgoing partner he was allowed to complete the pending assignments till 31.03.2007. It was further agreed in the deed that the continuing partners will intimate all the concerned departments, banks etc. regarding the said retirement, however, a proviso was also added that any bank account operated by the outgoing partners be allowed to continue till June, 2007 provided further that the outgoing partners operating the bank account shall provide account of transaction of the bank to the firm. One more important aspect which cannot be overlooked that in the same deed of retirement it was stated that the accounts of the partners have been settled and there is nothing due for and against. Despite the clear covenants, the learned counsel argued that the applicant signed the cheques in the year 2012 for settling his professional fee while he resigned from the firm in the year 2006 with the bank mandate to operate the account of firm till 30.6.2007. The learned counsel could not satisfy the court and on instructions of the applicant he agreed that the above amount will be paid to TDAP and pay orders of this amount will be deposited in the trial court, however he requested that the applicant right now is not in a position to arrange the entire amount in lump sum, so at least four month time may be granted to him to pay off this amount without prejudice to his plea of defence and subject to the final outcome of the trial.

10. In the case of Shamraiz Khan v. State, reported in 2000 SCMR 157, which was also registered under Section 409, 467, 468, 471, 477-A, 420, 109 P.P.C read with Section 5 (2) of Prevention of Corruption Act 1947, the accused being a contractor of Food Department in conspiracy with co-accused had allegedly short delivered wheat in bags owned by Government amounting to Rs.15 crores. The hon’ble Supreme Court held that more or less the entire amount had been deposited or was going to be deposited by the accused hence, the interim bail granted to the Shamraiz Khan was confirmed subject to the deposit of remaining un-deposited amount. In the bail applications No.1126, 1127 & 1128 of 2013 (Asim Rizwani V.S The State), (authored by me) similar allegations were found against him that being partner of the same Chartered Accountant Firm, he wrote letters to the bank for the change of accounts of M/s. Zahooruddin & Co., M/s.Molasses Traders and M/s Vision Match Trading and prosecution had shown his involvement to the extent of Rs.26,00,000/- which he allegedly received through three cheques issued in his name so he was granted bail subject to the payment of above amount to TDAP. In the case of Mohammad Rashid Umar V.S State, reported in S.B.L.R 2012 S.C 78 also the petitioner before the honourable Supreme Court volunteered to deposit the amount, hence his pre-arrest bail was confirmed. 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 without any unreasonable delay but in this case pace of trial do show that there is no likelihood of concluding the trial in near future. Since the applicant is ready to refund the amount of monetary gain which he achieved and prosecution has also conceded to their no objection to the conformation of bail thus at this stage when the investigation has been completed no useful purpose will be served to reject the bail applications when the blanket protection has already been awarded to the applicant by consent in the above Constitution Petition not to arrest the applicant in any FIR pursuant to Enquiry No.38/2012 and so far as providing the safeguard to the public exchequer, that has already been safeguarded and shielded in this bail order with the directions to pay this amount to TDAP.

11. As a result of above discussion, pre-arrest bail granted in aforesaid FIRs is hereby confirmed subject to deposit of amount of Rs.23,00,000/- out of which Rs.5,00,000/= will be deposited through pay order in the name of TDAP within fifteen days’ time and remaining amount will be deposited within a period of four months from today without any fail or excuse. Pay orders as may submitted by the applicant shall be released to the TDAP by the learned trial court on proper verification and identification. The applicant shall also deposit his original valid passport in the trial court and shall not leave the country without the permission of the trial court. He will also appear regularly in the trial court and in case of default in appearance or payment of amount ordered in the bail order within the stipulated time frame, the prosecution may apply for cancellation of bail to the trial court. However, it is clarified that if the applicant is acquitted from the charge at any stage of proceedings, the learned trial court in its judgment and or order shall pass specific directions for refund of the entire deposited amount to the applicant and FIA shall be responsible to recover this amount from TDAP and pay to the applicant. The above findings are tentative in nature and shall not prejudice the case of either party. The bail applications are disposed of.

Judge