2020 PLP 1488 (MLD)

OMAR SIAL, J.--Sped Qamar Ali (the petitioner in C.P. No.4252 of 2017) and the petitioner Mumtaz Ali Nizamani (the petitioner in C.P. No. 5835 of 2017) are both accused and facing trial in NAB's Reference No. 14 of 2018. Through these petitions they have sought pre-arrest bail.

2. The allegation against the two petitioners is that both were working as Inspectors, RTO-II, FBR and that petitioner Syed Qamar Ali submitted false physical verification reports regarding the premises and manufacturing units of Z.A. Exports whereas petitioner Mumtaz Ali Nizamani submitted false physical verification reports regarding the business premises of Wakeel Enterprises and Majestic Industries. The false reports enables the three businesses to register under the sales tax laws and subsequently claim sales tax refunds to the tune of Rs.12,472,375 and 68,469,027. 3 We have heard the learned counsel for the petitioners as well as the learned Special Prosecutor, who was assisted by the investigating officer of the case, and have perused the record with their able assistance.

4. The verification reports that were submitted by the petitioners basically record that they had visited the respective premises and that the said businesses did indeed exist at those locations. On the strength of those verifications the businesses were registered under the sales tax laws. The allegation against the petitioners, as recorded in NAB's investigation report, is that the petitioners "willfully and knowingly prepared physical verification report of (the businesses) which never worked/existed at the declared address".

5. The only ground argued before us by NAB to show the involvement of the two petitioners in the alleged sales tax refund scam is that had the two inspectors filed the correct physical reports that had recorded that the business entities that claimed the refunds were not doing business on their stated business addresses, the subsequent sales tax refunds claimed by them would not have been claimed. We are not convinced at this stage that this is a good enough ground to deny the petitioners bail. No evidence has been shown to us to establish that the two petitioners were beneficiaries of the ill gotten money. Further, whether the sales-tax refund claims were false or genuine is still to be established after evidence is led at trial.

6. We asked the investigating officer of the case to show us the memo of inspection of the business premises, however, he not only expressed his inability to produce the said memos but informed us that he had not prepared such memos during the course of his investigation. Quite shockingly, he also admitted that not once had he visited the business premises during the course of inquiry or investigation. We are at a loss to understand how the authenticity of the allegation against the petitioner could be ascertained when the investigation officer never went to see what the situation on the ground was. It appears that either the officer did not take into account that it was his duty to conduct a fair, transparent, neutral, honest and comprehensive investigation or he chose not to do so for reasons best known to him. Either way, at this stage, it cannot be conclusively determined that the manufacturing units did not exist at the given location or that fake and false sales tax refunds were made by the owner of the business. The fundamental right of freedom and movement of the petitioners cannot be curtailed on a mere unsubstantiated allegation that the manufacturing unit does not exist. The observations made hereinabove are tentatiye in nature and will not prejudice the case of either party.

7. Above are the reasons for our short order of 14-2-2019 in terms Of which we confirmed the ad-interim pre-arrest bail granted to the petitioners on 6.10.2017 and 29.8.2017 on the same terms and conditions. SA/Q-12/Sindh Bail confirmed.