ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Crl. Bail Appl. No. 1126, 1127 & 1128 of 2013
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Order with signature of Judge
Asim Rizwani……………………..………………..Applicant
Versus
The State……. ……………………………….....Respondent
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Date of hearing 10.09.2014.
M/s. Haseeb Jamali, Hassan Sabir and Ayaz Ansari Advocates for the Applicant.
Mr. Mohammad Aslam Butt, D.A.G
Mr. Israr Ahmed, Director Law, F.I.A
M/s. Ali Hassan Zardari, M. Sajjad Khan and Irfan Ahmed, Investigating Officers, F.I.A.
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Muhammad Ali Mazhar J. The applicant has applied post arrest bail in the following criminal bail applications:-
a. Bail Application No.1126/2013 in Crime No.9/2013, lodged under Section 409, 420, 468, 471 & 109 PPC r/w Section 5(2) Prevention of Corruption Act 1947 at P.S F.I.A Crime Circle, Karachi.
b. Bail Application No. 1127/2013 in Crime No.10/2013, lodged under Section 409, 420, 468, 471 & 109 PPC r/w Section 5(2) Prevention of Corruption Act 1947 at P.S F.I.A Crime Circle, Karachi.
c. Bail Application No.1128/2013 in Crime No.11/2013, lodged under Section 409, 420, 468, 471 & 109 PPC r/w Section 5(2) Prevention of Corruption Act 1947 at P.S F.I.A Crime Circle, Karachi.
2. In fact all the above cases relate to the TDAP scam in which various persons claimed and obtained 25% freight subsidy incentive and embezzled/misappropriated huge amount on submission of forged documents. The role of present applicant is that he being the partner of the Chartered Accountant firm M/s Awais Hyder Noman Rizwani endorsed the false claims due to which the freight subsidies were obtained by various persons with his active connivance. The allegation and or role assigned to the present applicant is similar and identical in all three FIR(s) with the difference of names of the companies/persons only who actually applied for subsidy claims on fake documents. The bail applicants were moved in the trial court but the applications were dismissed.
3. Since the role of applicant is same in all FIR(s), hence just to give succinct facts, let me take up Crime No.9/2013 in which the date of occurrence of the crime is 2009-2010. The F.I.R was lodged on 7.6.2013. The cases are based on the report furnished in Enquiry No.38/2012 through which it was transpired that under the trade policy the Government of Pakistan introduced to give 25% freight subsidy as an incentive to the exporters of new products and export to new markets. The exporter was supposed to lodge claim to its export dealing bank with export documents such as Shipping Bill, GD, Bill of Lading, Commercial invoice, Freight Forward Receipt, Airway Bills and Bank Credit Advice (BCA) etc. In the year 2009-2010, the Export Development Fund (EDF) meant for disbursement of 25% Freight Subsidy, in flagrant violation of the public notices misappropriated and embezzled by the relevant TDAP officials, auditor and exporters in connivance with and abetment of each other. One of the scrupulous/fictitious companies namely M/s Vision Match Trading International owned by accused Mohammad Rafi and accused Farhan Rasheed managed fake export documents and in connivance and in collusion with accused Mirchoo Mal Khatri, Project Officer Freight Subsidy (TDAP), accused Jawed Anwar, Director General Facilitation and accused auditors Adnan Zaman & Asim Rizwani of M/s. Avais Hyder Nauman Rizwani succeeded to get 25% freight subsidy worth Rs.24.142 Million by submitting fake export documents for claiming 25% Freight Subsidy directly to TDAP/Auditors (M/s. Avais Hyder Nauman Rizwani) bypassing the laid down rules and procedure prescribed in the public notices and agreement executed between the auditors M/s Avais Hyder Numan Rizwani and Export Promotion Bureau now TDAP.
4. I have also examined the interim challans in which allegation against the present applicant and his assigned role is found same. The I.O of the aforesaid crimes informed the court that recently they have filed the final challan/charge sheets without any variation and the role or allegation against the applicant is same as mentioned in interim challan.
5. Mr.Hassan Sabir, learned counsel for the applicant argued that neither the present applicant is the Chartered Accountant nor he is the partner of the chartered accountant firm. He further argued that father of the applicant was the partner in the above Chartered Accountant Firm but he resigned in the year 2006 and on his resignation, Adnan Zaman was inducted as partner in the aforesaid firm. He further contended that only one letter has been referred to in the interim challan which is allegedly signed by the applicant and transmitted to the manger National Bank of Pakistan F.T.C Branch. Learned counsel argued that no such letter was ever signed by the applicant. He further argued that applicant is innocent and he has been falsely implicated in the above cases.
6. Mr. Haseeb Jamali, learned counsel for the same applicant in bail application No.1128/2013 argued that limited role of pre-audit was assigned to the auditor in the public notices which were amended from time to time. He reiterated that applicant had never remained partner of the firm. He specifically pointed out para No.6 of the interim charge sheet of bail application NO.1128/2013 and argued that the allegation against the applicant is only forwarding a the covering letter which was never signed by him. Even if this letter is considered to have forwarded by the applicant, no offence is made out against the applicant which is evident from the interim challan that the claim of exporter was duly approved/authenticated/cleared by the accused Adnan Zaman who is the partner of the firm. The learned counsel also referred to para No.6 of the charge sheet submitted in Crime No.9/2013 (Bail. Application No.1126/2013) in which it is clearly stated that the Export Promotion Bureau now TDAP for the purpose of verification and pre-audit the subsidy claims, appointed M/s Avais Hyder Noman Rizwani (Chartered Accountant) under an agreement dated 18.02.2005 executed between Export Promotion Bureau and AHNR. The AHNR in its letter dated 30.03.2007 which was addressed to the Manager/AVP National Bank of Pakistan clearly informed the Bank that accused Adnan Zaman would be signing the freight subsidy claim and also provided his specimen signature. He added that in fact Adnan Zaman was the authorized person, hence there was no question to implicate any other person on the ground that he approved the claims which was the responsibility of Adnan Zaman in the agreement. He further argued that F.I.R was lodged on 7.6.2013 and since then, the applicant is behind the bar. Only few days back, final challans have been submitted by F.I.A, the applicant is languishing in jail for more than fourteen months but there is no progress in the trial and there is no likelihood of concluding the trial in near future.
7. On the contrary, Mr. Mohammad Aslam Butt, learned D.A.G submitted a copy of letter which was signed by the applicant but this letter is undated and in the bottom of this letter, one stamp of S.M Shariq, AVP/Branch Manager National Bank of Pakistan is affixed. On production of this letter, Mr. Haseeb Jamali advocate submitted another copy of same letter and argued that during the hearing of bail application in the trial court, copy of this letter was handed over to the counsel for the applicant which was without any endorsement of any such bank manager. On this objection, Mr. Mohammad Aslam Butt, responded that in fact it is only attestation of the bank and not the receiving of the said letter. The learned D.A.G also pointed out two 161 Cr.P.C statements of Shahid Pervaiz and Ahmed Saleem who deposed in their statements that they both are working in the Chartered Accountant Firm and looking after the work of taxation side. The applicant used to send specimen payment advices to Adnan Zaman for his signature without any supporting document. The claim documents were being received by the applicant from bank and thereafter, trainees of the firm used to prepare the payment advices and used to get the signature of Adnan Zaman whereafter, the documents were being sent to the applicant for onward transmission to NBP and TDAP. The learned DAG also shown copies of three cheques which were issued in the name of applicant from the account of Panjtan Associates. He further argued that this account was being used to disburse the shares of embezzled/misappropriated amount amongst all the persons involved in claiming or submitting the forge claims of freight subsidy. However, he admits that throughout the inquiry and investigation carried out against the present applicant, prosecution has collected only this evidence to show that the applicant is also one of the beneficiaries of the misappropriated/embezzled amount.
8. During course of arguments, the I.O has also shown the copy of bail order dated 20.08.2014, passed by the trial court in the case of Raja Shahzad in FIR No.35/2013 which is an identical case. The bail was granted to Raja Shahzad subject to the deposit of the alleged embezzled/misappropriated amount and the amount was directed to be paid to Trade Development Authority of Pakistan, so the learned DAG. with the consent of the I.Os and Mr.Israr Ahmed, Director Law, F.I.A argued that if similar order is passed, they have no objection to grant of bail. When the court asked them about pending bail applications in the trial court, the learned DAG with the consent of above officials respondent that prosecution will also concede to the grant of bail to the applicant in all pending bail applications in the trial court if the liability of Rs.26,00,000/- is secured by this court and paid to TDAP.
9. It is an admitted fact that three bail applications are fixed today in this court while forty other bail applications are also pending in the trial court in which also against the applicant same evidence is available including three cheques amounting to Rs.26,00,000/-. In the aforesaid three bail applications, final challans have been submitted without any variation and whatever stated in the interim challan has been repeated in the final challan as informed by the I.O to this court, while challans in many other cases are to be submitted in the trial court.
10. Whether the applicant is Chartered Accountant or not or whether he is the partner in the aforesaid Chartered Accountant Firm, this cannot be decided at this stage. It is also very crucial in this matter to see whether applicant had written any letter to NBP as mentioned in the interim challan or not for the change of bank accounts of M/s. Zahooruddin, M/s.Molasses International and M/s.Vision Match Trading. On one hand the counsel for the applicant totally denied the signature of the applicant on this document or its receiving by the bank but on the other hand, the learned DAG produced the copy of same letter with the endorsement of S.M.Shariq, Branch Manager, NBP, FTC, Branch but on the objection of counsel for the applicant, the learned D.A.G. responded that this is only attestation from the bank side and not an endorsement of receiving this letter. I have also seen the Seizure Memo in F.I.R No.11/2013 in which it is clearly stated in paragraph 6 that the above letter for the change of bank account of M/s.Zahooruddin, Mollaces International and Vision Match Trading was written under the signature of Avais Hyder Nauman Rizwani which is a firm. In this context it is to be seen in evidence who was the author of this letter, the applicant or any other person. The learned D.A.G. has also shown me three cheques allegedly issued in the name of applicant which makes total amount of Rs.26,00,000/- and argued that the applicant is also beneficiary of the amount fraudulently claimed. These cheques were issued by Panjtan Associates and the learned D.A.G. argued that this is the main account from which the shares of all culprits were being distributed. In the case of Sardar Amin Farooqui (2014 SBLR 766), (authored by me), it was held that the further inquiry is a question which must have some nexus with the result of the case for which a tentative assessment of the material on record is to be considered for reaching just conclusion. The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime.
11. There is no doubt that out of one and the same enquiry, the applicant has been implicated more than 42 cases and according to the prosecution, they have collected the only evidence against the applicant which they have highlighted and produced before me today. According to the prosecution, the strong piece of evidence is the copies of three cheques which were allegedly given to the applicant as his share in the scam which require further inquiry to prove the guilt of the applicant. Investigation has been completed in all cases. No useful purpose would be served to retain the applicant behind the bar. It is well settled that bail cannot be withheld as punishment on the ground that the offense with which the accused is charged is non-bailable. The grant of bail or its refusal is a judicial exercise of discretion and it is incumbent upon the court to make tentative assessment of the material collected by the prosecution as well as defense. It is also well settled proposition of law that benefit of doubt can be given to the accused even at bail stage and law is not be stretched in favour of prosecution. The present case is mostly based on documentary evidence and authenticity and or genuineness of the material collected by the prosecution is to be ascertained and in order to sift grain from the chaff, recording of evidence is necessary to prove the guilt of the applicant.
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. What is the status of the applicant in this case? At the best he can be booked as an agent as the prosecution stated that an agreement was executed for pre-audit with the chartered accountant firm but the applicant has completely denied having any relationship as a partner of the chartered accountant firm which needs to be thrashed out. 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 offence independently or as an abettor. 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 and the applicant is rotting in jail for last fourteen months without progress in the trial.
13. The learned D.A.G referred to an order passed by the trial court on 22.8.2014 in Case No.22/2013 (FIR No.25/2013). The bail application of this person was dismissed by the trial court thereafter he moved bail application to this court which was withdrawn however, in the second bail application in the trial court the counsel for Raja Shahzad Rabbani agreed to deposit Rs.800,000/-in favour of TDAP with the assurance to pay remaining amount within three months. On this offer, the learned prosecutor FIA and the I.O. had accepted the offer and gave their no objection to the grant of bail.
14. The learned D.A.G. and the I.O. of the above crimes submitted that if applicant is ready to pay Rs.26,00,000/- to the TDAP, they have no objection to the grant of bail to the applicant. They further submitted that at least forty more bail applications of the same applicant are pending in the trial court and since they only succeeded to collect the evidence of Rs.26,00,000/- against the applicant which he has obtained as his share in the TDAP scam hence, they will also concede their no objection in the trial court provided that this amount is deposited in the trial court through pay order in the name of TDAP in advance. Mr.Israr Ahmed Director Law, FIA also conceded to and agreed to this proposal.
15. The learned counsel for the applicant have agreed to this proposal only for the reason that prosecution assured them to give their no objection in the trial court also in all pending bail applications so on deposit of this amount, the applicant may come out of prison in all identical cases. However, they argued that they will deposit this amount with the Nazir of this court but the learned DAG and the FIA officials reiterated that the trial court granted bail to Raja Shahzad on the payment of the amount to the TDAP so they again insisted that this amount be paid to TDAP subject to the final outcome of the case in the trial court and if the applicant is acquitted from the charge in all cases, the amount shall be refunded back to the applicant.
16. 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 this case also applicant is ready to pay Rs.26,00,000/- to TDAP in view of the evidence collected by the FIA so far against him which is of course subject to the final outcome of the cases pending in the trial court. Since the applicant is willing to secure and refund the alleged embezzled/misappropriated amount to TDAP, therefore, he is entitled to the concession of bail on this ground also.
17. As a result of above discussion, the above bail applications are disposed of in the following terms:
i. The applicant is granted bail in Crime Nos.9, 10 and 11 of 2013 subject to his furnishing solvent surety in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) in each case with P.R bond in the like amount to the satisfaction of the learned trial court. In addition to the surety amount and personal bond, the applicant shall also submit a pay order in the trail court in the sum of Rs.26,00,000/- (Rupees Twenty Six Lacs Only) in the name of TDAP which will be handed over by the trial court to the authorized representative of TDAP after due verification and identification.
ii. The learned DAG, I.O. and Mr.Israr Ahmed, Director Law have already given their assurance and consent to the applicant’s counsel that on deposit/payment of above amount to TDAP, subject to the final outcome of the pending cases, the prosecution will endorse their no objection in the trial court for the grant of bail to the applicant in all pending bail applications as the liability fixed against him has already been secured/discharged.
iii. The release order of the applicant will be issued by the trial court only after receiving pay order in the aforesaid sum and furnishing surety and personal bond subject to the satisfaction of the learned trial court.
iv. In case the prosecution is failed to prove the guilt of the applicant and he is acquitted from the charge or he is acquitted at any stage of proceedings, the F.I.A will refund this amount to the applicant after its recovery from TDAP and in this regard, specific directions will be given by the trial court in its order/judgment.
v. The above findings are tentative in nature and shall not prejudice the case of either party.
Judge