By means of this petition, the petitioner Noman Ali Bhatti is seeking post-arrest bail in Reference No.03/2007 pending against him before the learned Accountability Court No.III at Karachi.
2. The facts in brief are that on receipt of Suspicious Transaction Report (STR) from CEO of Mybank Ltd. regarding suspicious transactions in 70 Bank accounts including Account No.4399-2 Karachi in the name of Messrs Expose International, an inquiry was conducted, which revealed that the said firm had received illegal sales tax refunds. Such preliminary finding led to the investigation in which it was discovered that the petitioner had got the said firm viz. Messrs Expose International fraudulently registered with Collectorate of Sales Tax and Central Excise, Government of Pakistan vide Sales Tax Registration No.17001203031073 on 29.04.2004 as an exporter/wholesaler showing office address at Suite No.607, 6th Floor, Noman Tower Marston Road, M.A. Jinnah Road, Karachi, and had obtained a total Sales Tax Refund of Rs.30,095,873/- during the period of 2004 and 2005.
The details of which in tabular form have been reproduced in, the Reference as well as in the Investigation Report. The said sales tax refunds were found to have been obtained against sales tax invoices issued by bogus companies to Messrs Expose International. It was also found in the investigation that Messrs Expose International never existed physically on its alleged address and the petitioner by using fake and flying sales tax invoices obtained sales tax refunds of aforesaid amount and thus caused a huge loss to the National Exchequer, which is an offence under section 9(a) of NAO, 1999 punishable under section 10 of the Ordinance.
3. Learned counsel for the petitioner has argued that the whole case has been contrived against the petitioner by the NAB authorities; that there is no evidence that he had got the alleged firm registered in his name; that there is no reliable evidence that the petitioner had opened the Bank account, where the cheques of sales tax refunds were deposited and withdrawn; that there is no evidence that sales tax refunds were received by the petitioner; that although there are allegations that in all six (06) claims for refund were filed by the petitioner but NAB could find only one file of refund claimed in the investigation, whereas no trace of remaining files was found by the NAB; that the NAB has failed to examine the relevant Bank officials who allegedly opened account of the petitioner, attested his signature or the interviewing officer before whom the petitioner had allegedly appeared at the time of opening his account to verify that the petitioner is the same person or not or that he had withdrawn the amount or not. Learned counsel for the petitioner further submitted that CNIC of the petitioner was misused and fraudulently in his name somebody else got the firm registered and the Bank account opened but the NAB did not look into this aspect of the case during the investigation. Besides, making above submissions, learned defence counsel has referred to 161, Cr.P.C. statements of many witnesses, who are shown purported proprietors of the fake companies, and who had allegedly sold goods to the petitioner's company and had issued sale tax invoices to emphasize that case of the petitioner is on the same footings to that of those witnesses who have alleged in their statements that their CNIC was misused by someone else According to him, the NAB has indulged in colorful investigation as the alleged offence admittedly could not have been committed by one person without active connivance of relevant Custom and Sales Tax officials but the I.O. has only roped the present petitioner in the case.
Learned defence counsel in support of his arguments has relied upon the case law reported in 2017 YLR Note 144, PLD 2004 Karachi 617, 1996 SCMR 1132, 2014 SCMR 12 and an order dated 25.05.2017 passed by this Court in C.P.No.D-6321/2016.
4. On the other hand, learned Special Prosecutor, NAB has opposed grant of bail to the petitioner and has referred to various documents showing the signature of the petitioner thereon.
These documents include applications for registration of the alleged firm, for its registration under Sales Tax Act, relevant Bank account papers where the cheques of Sales Tax Refunds were deposited and withdrawn, Tenancy Agreement of the office of Messrs Expose International etc. Learned Special Prosecutor, NAB has further contended that the petitioner was issued a Call-Up- Notice but did not appear before the I.O. for recording his statement and avoided investigation. He submitted that in the trial 22 witnesses have been cited out of whom 13 witnesses have already been examined and as such trial is likely to be concluded in near future.
5. We have considered submissions of the parties and perused material available on record and have taken guidance from the case law cited at the bar. The order dated 25.05.2017, in the unreported case of Muhammad Ibrahim in C.P.No.D-6321/ 2016, shows that the petitioner was granted bail on the ground that the entire sanctioned and paid amount of refund was not found bogus and out of the total amount so claimed some amount was admitted. The said petitioner was also found engaged in manufacturing as well as sales exports and he had filed the invoices, Export Form-E and filed goods declarations pertaining to various consignments, which were not denied by the NAB. Whereas in the present case the investigation reveals that the petitioner had got a fake firm registered on the fake address and obtained illegal sales tax refunds amounting to Rs.30,095,873/- against the bogus and flying sales tax invoices of the fake companies, which were deposited in his Bank account and withdrawn. The purported owners of the said firms have been examined under section 161, Cr.P.C., some have denied existence of any firm under their propriety and issuing invoices to the petitioner's firm, and some have denied to have any business transactions with the petitioner's firm. Their statements are in line with the prosecution case and support the allegations against they petitioner. The record shows that NAB has been able to collect relevant, documents which bear signature of the petitioner. The petitioner has not denied his signature on the said papers and has simply based his case on premise that his CNIC was misused by somebody else, which, however, is not borne out of the record. It may be mentioned here that while deciding a bail plea of an accused, deeper appreciation of evidence is not required. If there is prima facie sufficient evidence against him, he would not be held entitled for concession of bail. In this case as discussed above, sufficient evidence against the petitioner in the form of relevant documents with his signature thereon, 161, Cr.P.C. statements of the witnesses, relevant Bank account papers, etc. has been collected by NAB.
6. As learned Special Prosecutor, NAB has informed that out of 22 cited witnesses, 13 witnesses have already been examined and the trial is likely to be concluded in near future, we therefore at this juncture would refrain from exercising our discretion in favour of the petitioner and would rather like to direct the trial Court to expedite the trial and complete the same within a period of three (03) months hereof. Resultantly, this petition is dismissed.
7. Needless to mention that the observations made hereinabove are tentative in nature and would not prejudice the case of either party at the trial.
8. We, however before parting with this order must show our displeasure over the manner the investigation has been conducted by the Investigation Officer of this case. Although, the investigation report shows that the investigation officer was able to collect relevant record i.e. computerized analysis sheets, refund payment orders and refund cheques in respect of claimed files, etc. from the office of R.T.O. concerned, yet he could not or did not identify the relevant officials and completely ignored their obvious role in league with the petitioner in committing the alleged offence.
9. Let a copy of this order be sent to the Chairman, NAB, Islamabad and Director General NAB, Karachi for perusal and looking at the credentials of the Investigating Officer of this case in the light of observations made in above para.