ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Crl. Bail Application Nos. 1700, 1701, 1702, 1706,
1711 & 1717 of 2014
Date Order with Signature of Judge
Mirza Kareem Baig Vs. The State
16.10.2014
M/s.Kumail Sheerazi and Asad Rizvi, 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, and SIP Amir 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. 13/2014, 14/2014, 05/2014, 76/2013, 12/2014 & 11/2014 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.
2. Earlier the bail of the same applicant was confirmed by me vide order dated 23.9.2014 in Bail Application Nos. 1322/2013, 1707, 1705, 1704, 1703, 1708, 1709, 1710, 1712, 1713, 1714, 1715 & 1716 of 2014. (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).
3. In the present bail applications all the FIRs have been lodged in the same Sections with the same allegations against the applicant that being Secretary of the TDAP he had an administrative role to play which he failed to perform properly. However, it is a fact that no evidence has been produced by the prosecution in the present bail applications also to demonstrate that the applicant is a beneficiary of any freight subsidy claims allowed to the various companies/persons on production of forged and fabricated documents. The learned counsel for the applicant argued that the role assigned to the applicant, in the above FIR requires further inquiry. He further argued that keeping in view the rule of consistency, the applicant deserves confirmation of bail in all the FIR(s).
4. The learned DAG candidly conceded that the role assigned to the applicant in the above FIRs is similar to the role assigned to him in the FIRs in which he applied for bail earlier and this court has already confirmed his bail hence he has no objection if the interim bail granted to the applicant is confirmed in the above FIRs also.
5. While confirming the bail of the applicant in Bail application No. 1322/2013 & 12 other bail applications vide order dated 23.9.2014, I observed as under:
“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”.
6. 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 as already directed and shall not leave the country without permission of the trial court. He will 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. The bail applications are disposed of.