' TASSADUQ HUSSAIN JILANI, J.---This judgment shall dispose of following Constitutional petitions as they arise out of the same Reference No,8 of 2003 filed by the National Accountability Bureau and is pending before the Accountability Court, Lahore:--
(i) Writ Petition No,4991 of 2003 (Mst. Riaz Qayyum v. The State etc.);
(ii) Writ Petition No,5583 of 2003 (Muhammad Aslam Bajwa v. The State etc.);
(iii) Writ Petition No,6963 of 2003 (Qazi Naseer Ahmad v. The State etc.); and
(iv) Writ Petition No,8146 of 2003 (Rashid Ahmad Khan v. The State etc.).
2. The case of the prosecution in the afore-referred Reference briefly stated is that the afore- referred petitioners/accused, alongwith their co-accused, prepared fake reports to the effect that the factory of accused No,1 on the above reference, had installed a machinery and that the said unit had in-house facility to manufacture special precision shafting of iron and alloy steel. On the basis of the said fake report, the so-called manufacturer was extended the facility of S.R.O. 510(1)91, dated 30th May, 1991 and thereby provided with a benefit of Rs, 1,43,80,23,112 with corresponding loss to the public exchequer. It is alleged that the then Collector Customs, who is an accused in the instant case, was asked to provide a list of machinery installed in the premises of the company Messrs Wan Seamless Pipe Industries (Pvt.) Limited, 338-G.T. Road, Salamatpura, Lahore. He, in turn, directed Syed Tanvir Ahmad, Assistant Director Customs to ensure compliance of the latter on 10- 6-1992 sent a list of machinery duly verified by accused Khurshid Hassan (since died), Qazi Naseer Ahmad, Retired Deputy Superintendent Customs (petitioner in Writ Petition No,6963 of 2003) and Muhammad Aslam Bajwa, Retired Superintendent Customs (petitioner in Writ Petition No,5583 of 2003). This Committee confirmed that the Company had sufficient in-house facility to manufacture special precision shafting of iron and alloy steel. On the receipt of the afore-referred report, the same Collector Customs sent second verification report endorsing the claim of the accused Seith Nisar Ahmad (owner of the Company) that 31 machines had duly been installed in the premises. On the basis of the afore-referred reports/verifications, the Central Board of Revenue issued a provisional certificate permitting the Company to import 10,000 Metric Tons Square Billets under Concessionary Rate of Duties/Taxes under S.R.O. 510(1)91, dated 30th May, 1991. Thereafter in August, 1992 a letter was sent to the same Collector Customs (accused) to verify as to whether the company had any in-house facility of manufacturing seamless pipes and special precision shafting of iron and alloy steel. A reminder was also sent but both these letters reminder unheeded and in the meanwhile the company continued deriving the benefit of the afore-referre ' S.R.O.
510(1)91, dated 30th May, 1991 and imported raw material without payment of duties. Yet another reminder was sent to the Collector in question pursuant to which the said accused sent a report dated 8-2-1993 prepared by one Khalid Naseem, to which reference has been made in the reference, as under:-- ' It was reported by said Khalid Nasim that the factory was under construction and the machinery was in the process of installation. He suggested that the intention of the party should not be doubted. He further recorded that the factory had an area of 28 Kanals and not 4 Kanals as alleged in the complaint. This report, which was prepared in February, 1993 shows that even machinery was not available with the Company in June or July, 1992, what to speak of in-house facility as had been earlier reported. This fact indicates that false survey reports regarding availability of machinery and in-house facility were prepared by the aforenamed accused at Lahore and were sent to C.B.R., Islamabad on 10-6-1992 in collaboration with accused No,1, who was then the Chief Executive of the Company. Even this report did not address itself to the basic issue raised in C.B.R.'s. Letter dated 29th August, 1992, i.e, status of ISL for being manufacturer of seamless pipes. The report prepared by said Khalid Nasim was received on 25th February, 1993. On 20 February, 1993 a new S.R.O. No,146(1)/93 was issued. This S.R.O. No,146 (1)/93 was issued on the basis of a decision of the E.C.C. Of the Cabinet (Federal Government) whereby the categories of raw materials which could be imported under concessionary rates under the previous S.R.O. No,146(1)/93 was notified in supersession of the earlier S.R.O. 510(1)/91, and in doing so, the area of its applicability was widened in such a manner as to extent its benefits to even those companies which were not manufacturing seamless pipes. As a result of this, accused No,1, was able to import raw material without payment of duties/taxes etc. And that too against the invalid Provisional Certificate which had been issued under S.R.O. 510(1)/91. The matter regarding issuance of new S.R.O. 146(1)/93 and compliance of ECC decision is still being investigated.
5. That on 21st July, 1993 a survey of the premises of the Company was undertaken by deceased accused Khurshid Hassan, the then Superintendent, Survey and Rebate, Collectorate of Central Excise and Sales Tax, Lahore Survey Report dated 7th August, 1993 prepared by deceased Khurshid Hassan, Superintendent was countersigned by Sarfraz Ahmad Warraich, the then Assistant Director, Survey and Rebate, Collectorate of Central Excise and Sales Tax, Lahore and said Khalid Nasim. The survey was conducted to watch the production and also determine the production and wastage.
The report was signed by all these persons except accused No,8, the then Technical Officer, Survey and Rebate, Collectorate of Central Excise and Sales Tax, Lahore who deliberately avoided to, sign it. It was forwarded on 8th August, 1993 by accused No,7 in terms of S.R.O. 510(1)/91 although, to his knowledge, this S.R.O. Had already been canielled on 20th February, 1993. The report was factually incorrect and was prepared to benefit the. Company."
3. Learned counsel for petitioner (in Writ Petition No,4991 of 2003), submitted as under:--
(i) That the Reference itself indicates that petitioner's husband Khalifa Abdul Qayyum never signed the report on the basis of which/ the principal accused got the benefit in question.
(ii) That there is nothing on record to indicate that the petitioner's / conduct, in any manner, caused loss to the public exchequer and benefit to co-accused.
(iii) That two signatories of the report have not been made accused, hence this reference is arbitrary and partial.
4. Learned counsel for petitioner (in Writ Petition No,5583 of 2003) made following submissions:-
(i) That the petitioner is not a signatory to the report on account of which the main accused derived benefit.
(ii) That the petitioner is not a technical expert and cannot be saddled with the criminal liability for an incorrect report submitted by a member of the Survey Committee.
5. Learned counsel for petitioner (in Writ Petition No,6963 of 2003) contended as under:--
(i) That the allegation that the petitioner, alongwith Khurshid Hassan and Muhammad Aslam Bajwa visited the premises of the factory and prepared an inventory of machinery which made it possible for the principal accused to obtain pecuniary benefit, is factually not correct.
(ii) That the machinery which was shown in the inventory prepared by the co-accused was in the process of installation, therefore, the report in question, on the face of it, was factually incorrect.
6. Learned counsel for the petitioner in Writ Petition No,8146 of 2003, in support of this petition, argued as under:-
(i) That the petitioner, at the relevant time, was posted as Superintendent, Central Excise and Sales Tax, Lahore. The allegation against him is that he issued false consumption certificate to the effect that the manufacturing unit of the co-accused had consumed the raw material for the manufacturing of seamless pipes. This allegation is totally incorrect as the petitioner neither prepared report nor he carried out any physical exercise.
(ii) That the petitioner is heart-patient and deserves to be released on bail.
7. Mr. M. Bilal Khan, learned counsel for National Accountability Bureau assisted by the Investigating Officer opposed all these four petitions by making following submissions:-- ' That there is documentary evidence to prove involvement of all the petitioners/accused in the criminal transaction beyond doubt and no exception can be taken- to their arrest and detention.
(ii) That the petitioners/accused by abusing their official position caused loss to the public exchequer to millions of rupees and derived pecuniary benefit out of it.
(iii) That each one of the petitioners had, at the relevant time, played a role in providing benefit to the principal accused.
(iv) That the petitioners/accused, who are public servants, in league with the private individuals prepared false reports. On complaint received, the matter was fully investigated and having done so, the prosecution has come to the conclusion that the petitioners are fully involved in heinous offences and no case for bail is made out.
8. We have heard learned counsel for the parties, have given anxious consideration to the submission made at the bar and perused the record.
9. In Writ Petition No,4991 of 2003 (filed by wife of accused Khalifa Abdul Qayyum), a letter dated 8- 8-1993 which was addressed by Shaukat Ali Bhatti, the then Collector of Central Excise and Sales Tax Lahore to the Cliief, Survey and Rebate, Central Board of Revenue, Islamabad, reads as under:-- "GOVERNMENT OF PAKISTAN COLLECTORATE OF CENTRAL EXCISE AND SALES TAX, CUSTOM HOUSE, LAHORE ' C. No,157-Industrial Survey/92/264 Dated: 8-8-1993 To, ' The Chief ' Survey and Rebate, ' Central Board of Revenue, Islamabad.
' Sub: SURVEY REPORT IN RESPECT OF MESSRS IRFAN SEAMLESS PIPE INDUSTRIES (PVT) LTD., LAHORE.
' Kindly refer to Board's Letter C. No, 2(31)/S&R-1192, dated 5-8-1992, on the subject cited above.
2. The survey of Messrs Irfan Seamless Pipe Industries (Pvt.) Limited, Lahore was conducted by a survey team. Report submitted by the team is sent herewith for furtkr necessary action by the Board.
(Encl: (05)).
(Sd.)
(SHAUKAT Ali BHATTI), Collector".
' This letter refers to another Letter bearing No,C.No,2(3) S&R-I/92, dated 5-8-1992 which is part of the Reference and has been produced before this Court by the learned counsel for the respondent National Accountability Bureau. Vide this letter, the Collector (co-accused) sent a report prepared by team of three in which petitioner acted as the technical expert. The report dated 25:8-1992 carried physical verification of the machinery installed and other in-house facilities to manufacture special precision shafting of iron and alloy steel. Learned counsel for the petitioner tried to wriggle out of the report by submitting that neither her husband nor the co-accused derived any financial benefit and, therefore, petitioner's husband could not be attributed any criminal intent. This argument of the 'learned counsel for the petitioner is not tenable because Khalifa Abdul Qayyum was admittedly the technical expert. His opinion whether the Company had in-house facility to manufacture special precision shafting of iron and alloy steel or not, was crucial. The report prepared, prima facie, demonstrated that the petitioner's husband tried to mislead the Central Board of Revenue by signing false report. His detention, therefore, cannot be termed as without lawful authority.
10. So far as Writ Petition No,5583 of 2003 filed by Muhammad Aslam Bajwa is concerned, he, in his capacity as Superintendent, Survey and Rebate, Collectorate of Central Excise and Sales Tax, Lahore, is a signatory to the inventory prepared regarding the so-called machinery installed in the premises of the factory in question. The inventory is dated 10-6-1992 Of the same date the Collector of Customs sent a letter to the Central Board of Revenue to the following effect:-- "2. Superintendent, Mr. Khursheed Hasan. Survey and Rebate, Mr. Qazi Nascer Ahmad, Deputy Superintendent (S&R) and Mr. Aslam Bajwa, Deputy Superintendent (S&R) visited the premises of Messrs Irfan Seamless Pipe Industries Salamatpura, Lahore. They have reported that the unit has sufficient in-house facility to manufacture special precision shafting of iron and alloy steel. The list of machinery as verified by the staff is attached as Annexure
11. The company's correspondence with the Allied Bank Limited, Peshawar and other documents, which are part of the list of documents being relied upon by the prosecution before the learned trial Court, indicated that the machinery had not been manufactured as yet when the afore- referred report was sent regarding the in-house facility of manufacturing. Hence, there is prima facie, sufficient evidence to connect him with the alleged offence.
12. Petitioner Qazi Naseer Ahmad (in Writ Petition No,6963 of 2003) also visited the factory. He is signatory to the survey report and there is his handwritten note at page 410 of the paper containing list of documents being relied upon by the prosecution to the effect that "I Naseer Ahmad visited the premises of Messrs Kan Seamless Pipe Industries (Pvt.) Limited, 338-G.T. Road, Salamatpura, Lahore. It was found that they had sufficient in-house facility to manufacture special precision shafting of iron and alloy steel. The list of machinery installed in the mill is attached as Annexure 'A-. Hence, his case is not different from Muhammad Aslam Bajwa accused.
13. Coming to the case of petitioner Rashid Ahmad Khan (in Writ Petition No,8146 of 2003). He is linked with the preparation and submission of consumption certificate signed by the Assistant Collector Customs to the effect that Messrs Irfan Seamless Pipe Industries (Pvt.) Limited, Lahore had used the raw material provided B to it although factually neither the machinery was in operation nor the raw material was utilized. The role of petitioner in his capacity as Superintendent, Central Excise and Sales Tax was that he alongwith others carried out the spot inspection of the premises of the factory. On the report submitted by these officials, the Assistant Collector (Customs) Ms. Adila Rehman issued the consumption certificate. His criminal liability, ex facie, is no less than the petitioners/co-accused.
14. For what has been discussed above, we do not find any merit in all the four writ petitions mentioned in para.1 of this judgment which are hereby dismissed.