1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The relevant facts giving rise to this bail application are that the Sales Tax Authorities received information that M/s. Fata Textiles, Karachi have fraudulently obtained sales tax refund amounting to Rs,37,45 million against fake document. On verification, it was found that on the business address of M/s. Fata Textiles, Karachi, there was a godown owned by another person and there was no unit in existence in the name of M/s. ' Fata Textiles. The verification of the persons who allegedly supplied goods to the Fata Textiles showed that most of them were not existing and they had also claimed refund of sales tax by submitted fake purchase invoices and other documents. The shipping bills produced for obtaining sales tax refund were sent to the Customs Collectorate of Karachi, for verifying their genuineness and it was reported that the shipping bills did not match with the bills submitted for the export and that the shipping bills submitted for claim of sales tax refund were tampered. The weight of the consignments and their value were enhanced to unbelievable maximum size for extracting maximum sales tax refund. The weight of the consignments shown for sale tax refund was more than the actual capacity of 40 feet and 20 feet containers. According to prosecution it was established on inquires that Farhan Anwar, Proprietor of M/s. Fata Textiles and some other unscrupulous persons were involved in the claim of fraudulent refund which amounted to tax fraud as defined under section 2(37) of the Sales Tax Act, 1990, causing loss in the tune of Rs,37.45 million to the exchequer. An F.I.R. Was recorded in this behalf. On further investigation, several persons were found involved in racket. It was found that applicant Zaheer Hussian, owner of M/s. Zaheer Dying and Bleaching Works Karachi, and Muhammad Anwar Choudhry owner of M/s. R.A. Textile Mills were also involved in the commission of tax fraud. They in collaboration with Farhan Anwar, the owner of non-existing unit, Fata Textile committed the tax fraud. The applicant Zaheer Hussain supplied fake invoices to M/s. Fata Textiles, who utilized the same in obtaining fraudulent refund from the Sales Tax Department. The applicant Zaheer Hussain was therefore, arrested on 15-2- 2006.
2. ' On interrogation the applicant disclosed that he received more than five million from M/s. Fata Textiles in the account of his firm M/s. Zaheer Dying and Bleaching Works Karachi, against fake supplies. It further revealed during the investigation that M/s. Fata Textiles claimed Rs,60.29 million during the period from November, 2004 to June, 2005. A tax refund of Rs,37.45 million was sanctioned and 7.71 million pertaining to June, 2005 were not sanctioned.
3. ' A bail application was submitted before the Special Judge (Customs and Taxation) Karachi. It was contended before the learned trial Court that the accused/applicant did not issue any forged and fake invoices and the documents were produced by absconding accused Farhan Anwar.
4. ' The prosecution case was that the applicant/accused played a vital role in commission of the crime and issued fake and forged invoices to absconding accused Farhan Anwar owner of M/s. Fata Textile and on the basis whereof tax refund in the millions of rupees were obtained. It was contended on behalf of prosecution that the applicant/accused charged rupees five million for issuing the fake invokes and the said amount was credited in the account of the applicant/accused.
5. ' The learned trial Court rejected the bail application with the observation that there are specific allegations against the applicant/accused of his involvement in commission of tax fraud involving huge amount in collaboration with absconding accused Farhan Anwar. There are specific allegations that fake invoices were supplied by the applicant/accused to a non-existent unit.
6. ' The learned trial Court while rejecting the bail application placed reliance on the observations made by this court while rejecting the bail application in the case of Amjad Hussain Aftab v. The State as follows: "The ratio of the case of the judgment of the Hon'ble Supreme Court in the case of Imtiaz Ahmed v.
7. The State PLD 1997 SC 545 is fully applicable to the case of present applicant Amjad Hussain, wherein it has been held that the criteria for grant of bail in white collar crime is entirely different than the grant of bail in any other criminal case."
8. ' Heard Mr. Sohail Muzaffar, learned counsel for the applicant/accused, Mr. S. Mehmood Alam Rizvi, learned Standing Counsel and Mr. Tanvir Sibtain Mahmood, learned counsel for the. Sales Tax Department.
9. ' Mr. Sohail Muzaffar has submitted that the name of applicant does not transpire in the F.I.R. And specific allegations have been levelled against the applicant for the first time in the interim challan.
10. He further submitted that under section 37-A of the Sales Tax Act, 1990 an officer of Sales Tax not below the rank of Assistant Collector of Sales Tax or any other officer of equal rank authorized by the C.B.R. In this behalf is empowered to arrest a person against whom there is material evidence, for reasons to believe that he committed a tax fraud. He conceded that the applicant/accused was arrested by the Assistant Collector. He thereafter referred to the provisions contained in section 37-B(1) which provides that when a Sales Tax Officer authorized in this behalf arrests a person under section 37-A, he shall immediately intimate the fact of the arrest of that person to the Special Judge who may direct such officer to produce that person at such time and place, and on such date, as, the Special Judge consider expedient and such officer shall act accordingly. Mr. Sohail Muzzfar submitted that this provision was not acted upon except that copy of F.I.R. Was furnished to the learned Special Judge (Customs and Taxation).
11. ' Mr. Sohail Muzaffar next argued that under subsection (11) of section 37-B, after completing the inquiry, the Sales Tax Officer shall, as early as possible submit to the Special Judge a complaint in the same form and manner in which the Officer Incharge of Police Station submits a report before a Court. He submitted that the complaint/charge-sheet is signed by the Investigating Officer Abdul Waheed Khan, who is a Deputy Superintendent. According to Mr. Sohail Muzzafar a Deputy Supreintendent of Sales Tax is not empowered to submit complaint/challan before the Special Judge and such complaint/challan can be submitted by Assistant Collector only, therefore, there are no lawful and validly constituted proceedings before the Special Judge. He submitted that a challan could be submitted before the Special Judge by an officer authorized by the C.B.R. Only and none else. According to him the Investigating Officer, Abdul Waheed Khan is not an officer empowered by the C.B.R. In this behalf. The learned counsel submitted that in the above circumstances, the applicant is entitled to be released on bail.
12. ' On the other hand, the learned Standing Counsel and the learned counsel for the sales Tax Department have vehemently opposed the grant of bail to the applicant. '
13. ' They have submitted that the accused/applicant has not denied that Fata Textile does not exist at all. The applicant has not denied that invoices were not issued by him in favour of Fata Textile. He has further submitted that the receiving of rupees five million by the applicant from Fata Textile, in his account is not denied and the documents have been discovered in consequences of information received from the accused. He has produced mashimama of recovery of nine cheques issued by Fata Textile in favour of applicant in the sum of rupees five million., in presence of two officials of the PICIC Commercial Bank Ltd., Gabol Town. He has further produced the cash cheques issued by the applicant in the sum of rupees five million after credit of the cheques in his account issued by the Proprietor of Fata Textile namely Farhan Anwar. He has also produced the statement of P.Ws. Hassan Kamil and Muhammad Waseem, Officers in grade 3 and 2 of the PICIC Commercial Bank Ltd., North Karachi, fully implicating the applicant. They have vehemently argued that there is very strong evidence available with the prosecution implicating the applicant in the commission of tax fraud causing huge loss to the public exchequer. They have further submitted that several other persons are also involved in the crime and further investigation is still under progress. They have maintained that the collection of evidence in white collar crime is always a difficult assignment, but the prosecution has been able to collect sufficient evidence against the applicant.
14. ' Replying to the contentions of the Mr. Sohail Muzaffar regarding the legal infirmities in furnishing information to the Special Judge and filing of challan, they have submitted that such finer points are not to be raised during the course of hearing of bail application. They have further submitted that even otherwise there is no legal infirmity in the prosecution case. They have stated that admittedly the applicant was arrested by Syed Mohsin Ali Shah, Assistant Collector, Intelligence Investigation and Prosecution on 15-12-2006. They have produced the remand application submitted by the same Assistant Collector, before Special Judge on 15-12-2006 i,e, very day of arrest of the applicant. The learned Special Judge passed the order of remand stating that the applicant Zaheer Hussain was produced by Syed Mohsin Ali Shah, and he was remanded in the custody of Sales Tax Officer up to 21-2-2006. Thus, the requirement of the provisions contained in section 37-A and 37-B(1) have been fully complied with. Regarding the contention that the complaint/challan can be submitted by Assistant Collector only, he submitted that section 37-A deals with the power of arrest only empowering an officer of Sales Tax not below the rank of Assistant Collector to arrest a person, who is believed to have committed tax fraud. He argued that under subsection (11) of section 37-B, legislature has merely provided that after completing the inquiry, Sales Tax Officer shall submit the complaint/challan. The wordings in the two sections are entirely different. In order to safeguard the liberty of a person it is provided under section 37-A, that an officer of Sales Tax not below the rank of an Assistant Collector of Sales Tax may arrest a person believed to be involved in the commission of tax fraud. So far, the submission of complaint/challan is concerned, the language used in section 37-B(11) is entirely different. It provides that Sales Tax Officer shall submit the complaint/challan. It has not provided that challan is also to be submitted by an officer not below the rank of Assistant Collector. He argued that Officer of Sales Tax is defined in section 2(18) of the Sales Tax Act, to mean an officer appointed under section 30. The Officers appointed under section 30 include, "Officer of Sales Tax" with any other designation. He has further pointed out that under section 31, it is provided that an officer of Sales Tax appointed under section 30 shall exercise such powers and discharge such duties as are conferred or imposed on him, under this Act. He has pointed out that under Notification No,S.R.O. 232(1)91 dated 10-3-1991, the C.B.R. In exercise of powers conferred by sections 30 and 31 of the Sales Tax Act, 1990 was pleased to appoint officers specified therein to exercise the powers of officers of Sales Tax. In the list of Officers specified in this notification, the Principal Appraisers, Appraisers, Superintendents/ Deputy Superintendents, Inspectors, Senior Preventive Officers, Preventive Officers, Examiners of Customs, Superintendents, Deputy Superintendent and Inspectors of Collectorate of Central Excise were conferred powers of the Officers of Sales Tax. He has submitted that the investigation was conducted by Collectorate of Sales Tax and Central Excise (Enforcement) Karachi, and therefore, the Deputy Superintendent is an Officer or Sales Tax. He has further pointed out that under Notification No,S.R.O.832(I)/2003 dated 27th August, 2003, the C.B.R. In exercise of the powers conferred by sections 30 and 31 of the Sales Tax Act, 1990, appointed the following Officers as Officers of Sales Tax for the areas of Civil Division, Karachi, to exercise such powers and discharge such duties as are conferred on such officers under the Act and rules made thereunder namely:- "Collectors, Additional Collectors, Cost Accountants, Deputy Collectors, Assistant Collectors, Superintendents, Senior Auditors, Deputy Superintendents and Auditors of Sales Tax, Sales Tax House, Karachi."
15. ' The learned counsel for the Sales Tax Department has submitted that by virtue of the above notification, Deputy Superintendent is included in the category of Officers of Sales Tax as defined under section 2(18) of the Sales Tax Act, and consequently, the complaint/challan submitted by Deputy Superintendent under section 37-B(11) is in accordance with law. He has further submitted that even if there is any irregularity which in fact is not there, it will not vitiate the trial.
16. ' I have carefully considered the contentions raised by the learned Advocates for the parties.
17. ' I do not find any substance in the contentions raised by Mr. Sohail Muzaffar on the technical points directed towards the alleged irregularity in furnishing information to the Special Judge and submission of challan. The documents produced by the learned counsel for the Sales Tax Department show that the Assistant Collector, who arrested the applicant produced him before the Special Judge on the same day and obtained remand, thereby making compliance with the provision contained in section 37-B(1). In the remand application the factum of arrest of the applicant is contained. The remand application specifically contains that applicant Zaheer Hussain was arrested on 15-2-2005 at 9-00 hours under section 37-A of the Sales Tax Act, 1990 . So far, the submission of challan by Abdul Waheed Khan, Deputy Superintendent is concerned, it is also in accordance with the provisions contained in section 37-B(11) of the Sales Tax Act. Notifications relied upon by Mr. Tanvir Sibtain Mahmud clearly establishes that Deputy Superintendent, is an Officer of Sales Tax and therefore he is fully empowered to submit the complaint/challan in the Court of Special Judge I also agree with the submission of Mr. Tanvir Sibtain Mahmud that such finer points are not to be raised during the hearing of bail application. In any case, the contentions are without substance.
18. Coming to the merits of the case, I would not like to make any detailed observations at this stage for the reason that the observations made by this Court may affect the proceedings before the learned trial Court. I feel it sufficient to observe that the material placed by Mr. Sibtain Mahmud before me makes out a prima facie case involving the applicant in the commission of tax fraud.
19. However, it is tentative assessm ent only and shall have no bearing on the merits of the case, when it proceeds before the learned trial Court. The learned trial Court without being influenced with this tentative assessm ent by this Court for the purpose of bail plea, shall decide the issue strictly on merits in the light of evidence produced by the prosecution at the trial.
20. ' The learned trial Court has rejected the bail application with reference to law laid down by the Hon'ble Supreme Court in the case of Imtaiz Ahmed v. State PLD 1997 SC 545. The observations made by the Hon'ble Supreme Court, that a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail and that the Courts should be strict in exercise of discretion of bail relating to the category of offenders belonging to a distinct class, of white collar crime is fully attracted to the facts of the present case. Further observation of the Hon'ble Supreme Court, that Courts should not be oblivious of the fact that at present Pakistan is confronted with many serious problems/difficulties of national and international magnitude, which cannot be resolved unless the while Pakistani nation as a united entity makes efforts, and that the desire to amass wealth by illegal means has penetrated in all walks of life and that the people commit offences detrimental to the society and the country for money, are also fully applicable to the facts of the present case in which a tax fraud is alleged to have been committed causing loss of very huge, hard-earned money to the State.
21. ' In the above circumstances, it is held that the applicant/accused Zaheer Hussian is not entitled to be released on bail and consequently, the bail application is rejected.
22. ' After hearing learned Advocates for the parties in the morning, the bail application was rejected by a short order. These are the detailed reasons in support thereof.