ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Crl. Bail Application Nos. 1431, 1432 & 1433 of 2013
Date Order with Signature of Judge
Mirchoomal Khatri..…….versus…..………….The State
Date of hearing 23.09.2014.
Mr. Shaukat Hayat Advocate for the Applicant.
Mr. Mohammad Aslam Butt, D.A.G.
Mr. Sheikh Liaquat Hussain, Standing Counsel.
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 are also present.
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Mohammad Ali Mazhar J. The applicant has applied for post arrest bail in Crime No. 09, 10 & 11, lodged under Section 409, 420, 468, 471 & 109 PPC read with Section 5 (2) of Prevention of Corruption Act 1947, at F.I.A Crime Circle, Karachi. The applicant had applied for bail in the trial court but his applications were dismissed.
2. The allegations against the present applicant is almost same in all the FIRs, hence I feel it appropriate to take up the brief of allegations as mentioned in Crime No.9/2013 which shows that consequent upon an Enquiry No.38/2012, conducted by FIA, it was transpired that under the trade policy, the Government of Pakistan introduced a scheme to award 25% freight subsidy as an incentive to the exporters of new products and export to new markets and in this regard, public notices were also published containing the terms and conditions for claiming the freight subsidy. In the FIR, it is stated that M/s. Vision Match Trade Trading International managed fake and forged export documents and in connivance and in collusion with the present applicant and other TDAP Officials, accused persons succeeded to get 25% freight subsidy on production of fake and forged export documents. The allegations in two other FIRs are identical except the companies’ names.
3. The learned counsel for the applicant argued that the applicant is behind the bar since 07.06.2013 and the final challan in the aforesaid crimes have been submitted on 15.04.2014. Even no charge has been framed so far and there is no likelihood of concluding the trial in near future. He has also pointed out a public notice which was issued in pursuance of the 2002-2003 Trade Policy. Learned counsel also pointed out paragraph No.5 of the policy in which a detailed procedure was provided for the payment of freight subsidy. He also referred to paragraph No.6 of the same document which pertains to the implementation of Scheme. In this implementation procedure, a steering committee was to be constituted comprising twelve persons/members who were required to monitor the scheme in letter and spirit which included the admissibility of freight subsidy claims in individual cases. Learned counsel also referred to an appointment letter of the applicant dated 26.05.2001 and argued that the applicant was a contractual employee who was performing his duties as project officer. The purpose of highlighting his appointment letter was to show that neither he was the member of steering committee nor he was given any mandate to look after or to supervise or manage the affairs of the Scheme of freight subsidy. The learned counsel further pointed out a letter dated 14.09.2010 which was written by the applicant to the NBP for the change of account of M/s. Zahooruddin & Co., M/s.Molasses Traders and M/s Vision Match Trading. Above are in fact three companies which are accused in the aforesaid F.I.Rs including applicant and other TDAP officials. He also referred to a bail order passed by me in bail applications No.1126, 1127 & 1128 of 2013 (Asim Rizwani V.S The State). In this case the allegation against the Asim Rizwani was that being partner of the Chartered Accountant Firm, he wrote similar type of letters to the bank for the change of accounts of M/s. Zahooruddin & Co., M/s.Molasses Traders and M/s Vision Match Trading. In that case, the prosecution had shown Asim Rizwani 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. The learned counsel also referred to case of Mohammad Rashid Umar V.S The State, reported in S.B.L.R 2012 S.C 78 in which also the petitioner before the honourable Supreme Court volunteered to deposit the amount, hence his pre-arrest bail was confirmed. The learned counsel argued that keeping in view the order passed in the case of Asim Rizwani, the applicant is ready to pay the alleged embezzled amount to TDAP.
4. Mr. Mohammad Aslam Butt, learned D.A.G, argued that the applicant had two roles, one as project officer in which capacity, he wrote a letter to the bank for change of the account of the three companies mentioned in the FIRs and simultaneously his wife namely Soorvi Bai was also running a proprietorship business in the name and style of R/s. International. Mohindar Kumar was manger/partner of R/s. International who was arrested in Crime No.9 & 10 of 2013. However, he volunteered before the trial court to deposit Rs.8,59,229/- in Crime No.9/2013 and Rs.18,55,223/- in Crime No.10/2013 and on payment of this amount, he was admitted to bail by the trial court. Learned D.A.G further argued that in the Final Charge Sheet submitted in Crime No.9/2013, it is evident that a sum of Rs.24,00,000/- from embezzled amount was paid by R/s. International to Shah Latif broker for the transaction of rice and in this regard, the learned D.A.G pointed out 161 Cr.P.C statement of one Ajeet Kumar Advani, manager of Shah Latif broker who has given the details of this amount and confirmed to have been paid by R/s. International. The learned DAG, further referred to Final Charge Sheet submitted in Crime No.10/2013 in which also a sum of Rs.15,00,000/- was deposited in the account of R/s International. As far as crime No.11 is concerned, the learned D.A.G shown me Final Charge Sheet and at page No.13, three cheques are mentioned amounting to Rs.17,78,800/- each but this amount was credited in the account of Akash & Co., Mukesh Kumar and Anand Broker and no evidence is available at this stage to attribute that this amount was paid to R/s International or to the applicant. So keeping in view the order passed in case of Asim Rizwani, learned D.A.G and the I.O present in the court conceded to that if the applicant is ready to deposit Rs.24,00,000/- and Rs.15,00,000/- which makes the total amount of Rs.39,00,000/- to T.D.A.P, they have no objection for the grant of bail.
5. The learned counsel for the applicant further pointed out that in the trial court at least 44 more bail applications of the same applicant are pending and he argued that without prejudice to the defence of the applicant in the trial court, the alleged embezzled amount will be paid to the TDAP subject to the final outcome of the trial provided that the prosecution will also concede in the trial court for the grant of bail in other similar cases. The learned D.A.G after confirmation from all the I.Os present in court stated that the role of the present applicant in the said F.I.Rs is limited to the extent of writing a letter to the bank for the change of accounts but they have no direct evidence to show that any amount was credited or paid to the applicant or R/s.International in other FIRs. The learned DAG and Investigating officers present in court stated that if the above amount is paid to TDAP they will endorse their no objection in the pending bail applications in the trail court also.
6. 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 same lines, bail was granted to Asim Rizwani in similar cases. In the case of Mohammad Rashid Umar, the honourable supreme court also confirmed the bail when the petitioner voluntarily offered to pay his share of embezzled amount and in this case also applicant is ready to pay Rs.39,00,000/- to TDAP.
7. In view of above discussion, the applicant is granted bail in Crime Nos. 9, 10 & 11 of 2013 subject to furnishing solvent surety in the sum of Rs.50,000/- (Fifty Thousand only) in each case with P.R bond in the like amount to the satisfaction of learned trial court. The release order will not be issued unless a pay order in the sum of Rs.39,00,000/- (Rupees Thirty Nine Lacs only) is deposited in the trial court in the name of T.D.A.P. The trial court may deliver the pay order to the authorized representative of T.D.A.P on proper verification and identification. The payment of above amount to TDAP will be subject to the final outcome of the cases and without prejudice to the defence of applicant. In case the applicant is acquitted from the charge at any stage of the proceedings, the prosecution shall refund this amount to the applicant after its recovery from T.D.A.P and in this regard specific orders for the refund shall be passed by the trial court in its judgment/order. The applicant shall also surrender his valid original passport in the trial court and shall not leave the country without permission of the trial court. The findings are tentative in nature and shall not prejudice the case of either party. All bail applications are disposed of.
Judge