ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Cr. Bail Application No. 1279 OF 2013
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Order with signature of Judge
Nizar Noor Mohammd..………Versus….…The State
Date of hearing 03.12.2014
Mr. Amel Kasi Advocate for applicant along with applicant
Mr.Muhammad Aslam Butt, D.A.G.
Inspector Bashir Soomro I.O of the case.
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Muhammad Ali Mazhar J. The applicant has applied for pre-arrest bail in Crime No. 41 of 2013, lodged at Police Station F.I.A Crime Circle Karachi, under Sections 409, 420, 468, 471 & 109 PPC read with Section 5 (2) of Prevention of Corruption Act 1947. Interim bail was granted to the applicant on 10.10.2013.
2. An enquiry was conducted by F.I.A on the complaint of Mohammad Umer Saleem Bhatti, Section Officer Ministry of Commerce Government of Pakistan which revealed misappropriation, embezzlement, corruption and corrupt practices in the incentive schemes including opening of exporters office abroad in order to promote Pakistan’s export brands abroad and retail operation in export market under the Trade Policy 2005-2006. The scheme was announced by the Government of Pakistan for sharing rental cost of the office established in potential export markets by exporters. The Government agreed to provide support to the extent of 50% to the rental cost of the office for three years and 50% subsidy in salaries of three employees for three years which was continued in the strategic Trade Policy framework 2009-2012. The allegations against the applicant are that being shareholder/director of M/s. Eastern Garment (Pvt) Ltd. Karachi, the applicant and other directors/shareholders of the company in connivance with the TDAP officials obtained bogus subsidy claims. During inquiry it revealed that Consulate General of Pakistan Los Angeles Mr. Eazaz Dar vide his letter dated 17.07.2013 confirmed that the address given by M/s Eastern Garments is fake and does not exist. According to the prosecution case, the applicant in connivance with officials of Trade Development Authority of Pakistan benefited from bogus subsidy claim of Rs.18,347,250/-.
3. The learned counsel for the applicant argued that all requisites formalities mentioned in the Trade Policy were complied with by the applicant’s company. No claim was lodged or obtained through fake or bogus documents. The letter High Commission dated 17.07.2013 is misconceived. FIR was lodged after the applicant/company had come to this court challenging the illegal act of the F.I.A. Learned counsel further argued that a notice dated 18.09.2013 was challenged by the applicant/company before this court in suit No.1216 of 2013. It was further contended that FIA failed to consider that T.D.A.P still owes a handsome amount to the company in pursuance of the Trade Policy and despite complying the terms of the said policy the amount is withheld by T.D.A.P without any reasonable justification. The applicant still maintains an office at the address given to T.D.A.P while claiming the rebate under the scheme and the report of the commercial counselor to the effect that M/s Eastern Garments is not maintaining any office in Los Angeles is beyond understanding of the applicant.
4. On the contrary the learned D.A.G argued that the office address in abroad provided by the applicant was not found and in support of his contention, he shown a letter dated 15.11.2013, addressed by Eazaz Dar Commercial Counselor, Trade Division Consulate General of Pakistan that the abroad office address provided by the applicant was personally visited by him but he found that it is not an office but a residential house therefore it was contended by him that the applicant has obtained freight subsidy on submission of forged claimed.
5. Heard the arguments. The main reliance of the prosecution is the letter dated 15.11.2013, addressed by Eazaz Dar Commercial Counselor, Trade Division, Consulate General of Pakistan in which he conveyed that that on the given address there was no office but it was a residential premises. The applicant has attached a copy of sub-lease agreement dated 26.6.2009 executed by Sterling Imports LLC with Eastern Garments for the Office at 4134 Pacific Coast Hwy Unit No.109 Torrance CA 90505 USA. The term of lease was effective from 1st July 2009 to 31st December 2013. The lease agreement is attested by Consular Attaché, Consulate General of Pakistan, Los Angeles. He has also attached three appointments letters of Gorden Rice, Liala Madhni and Malik Madhani issued by Noor Muhammad, Chief Executive, Eastern Garments to show that there office was functional. The appointment letters are also attested by the Consular Attaché, Consulate General of Pakistan, Los Angeles. He has also attached various “Bank Certificates for Export Performance” issued by different banks confirming that Eastern Garments was engaged in the export business. Few letters are attached to show that applicant’s firm exchanged correspondence with TDAP for their subsidy claim/dues. What transpired from the letter of Ezaz Dar dated 15.11.2013 that initially he was provided a wrong and or incomplete address by the TDAP for verification purpose however on providing correct address he visited the office where he met with Laila Madhani who informed him that house is owned by Nizar Muhammad (applicant) where some office was established. He also met Malik Madani, representative of Eastern Garments. However Ezaz Dar written in his letter that local laws do not allow commercial office to be set up in a residential house which does not mean in my view that there was no office. If there was any violation of local laws it was the lookout or prerogative of the local authority to take the cognizance but it does not suffice to hold at this stage that applicant was not operating any office abroad. After considering the material available on record, I am of the firm view that the role of present applicant require further inquiry and the prosecution has to explore every avenue to prove their guilt. The basic concept of bail is that liberty of 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 which are available in this case.
7. As a result of above discussion, the interim pre-arrest bail granted to the applicant is hereby confirmed. The above findings are tentative in nature and shall not prejudice the case of either party. The bail application is disposed of.