2006 PLP 485 (MLD)

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.

This is an application for bail before arrest, The F.I.R. reads as follows:- "

6. Facts of the Case.

The brief facts of the case are that in pursuance of an information that fake of Rs.3.91 million for tax period November, 2004 has been obtained by M/s P.Q. Enterprises, Karachi having Sales Tax Registration No.12-01-9999-363-19 vide Sales Tax Refund Payment Order dated 2-2-2005, an investigation was initiated. In the first instance, the refund profile of the claimant was obtained which revealed that an other claim of Rs.7.72 million for the tax period December, 2004 was pending, which was immediately withheld for further inquiry.

3. In order to ascertain the genuineness of the claimant, notices under section 37 of the Sales Tax Act, 1990 were issued to the claimant for appearing in person on 1-7-2005, 9-7-2005 and 21-7-2005 but none of the directors/representative appeared along with documents to substantiate the genuineness of claims. However, the claimant vide their letters sought extension of time period. The physical verification of the claimant was conducted and it was found that declared office address is a residential place. To further investigate the matter, registration record of the claimant was obtained which revealed that M/s P.Q. Enterprise, 121 Kokan Society, Karachi, submitted a tenancy agreement declaring their manufacturing premises at House No.KRC 41-K, Gali No.2, Sector-A, Kashmir Colony, Korangi Road, Karachi. The physical verification of declared factory premises of M/s. P.Q Enterprise, Karachi, revealed that no unit in the name of M/s P.Q Enterprises existed there. In this regard the statement of the owner of the declared factory premises was also recorded who, inter alia, stated that the said premises was vacated by Muhammad Irfan Parkar and Rashid Qureshi, the tenants on 1-6-2000.

4. Furthermore, physical verification of suppliers in the claims in question namely M/s M.C.R. Pvt. Ltd., Karachi and M/s Nasim Trading Company, Karachi was conducted and it was found that both the suppliers were fake as the declared address of M/s M.C.R. Pvt. Ltd., Karachi is an international franchise namely Pizza Hutt, related to Pizza business and M/s. Nasim Trading Company, Karachi is distributor of matchboxes, etc. another supplier namely M/s. Uni Leather International, Lahore also does not exist on the declared address." Since it is an application for pre-arrest bail, therefore, I asked the learned Standing Counsel and Mr. Tanveer Sibtain Mahmud, learned counsel for the Sales Tax Department, to show whether there was any evidence in their possession indicating any tax fraud or claiming of tax .fund not warranted in law. The learned Standing Counsel and the learned counsel for the Sales Tax Department have shown me some evidence, which has been collected. At this stage, I would not like to discuss the evidence and would not like-to dilate on the genuineness or otherwise of the evidence in possession of the prosecution as the case is still under investigation and any observation by this Court at this stage is likely to adversely affect any of the parties. After being shown some evidence on record, I asked Mr. Khawaja Shamsul Islam to show any act of mala fide on the part of prosecution, because for the purpose of granting bail before arrest the condition precedent is that there should be mala fide on the part of prosecution. At this stage, I would like to observe that if there is no evidence at all available with the prosecution and a citizen apprehends his arrest in such circumstances, then it would be treated as an act of mala fide because a citizen can be deprived of his liberty if there is something tengible against him constituting the commission of cognizable offence. Once it is shows that there is some evidence then it is for the person approaching the Court to show that his intended arrest is mala fide for ulterior purpose or for political reasons or on account of some enmity or vengeance. If this condition precedent is not fulfilled in the wake of some evidence in possession of prosecution, then the bail before arrest is not to be granted as the provision for bail before arrest is not meant to hinder or hamper the investigation. This provision is meant to protect the citizens from unnecessary humiliation or harassment and insult. Mr. Khawaja Shamsul Islam has argued the case on merits but he is not able to show that there is any ulterior purpose on the part of prosecution or there is any mala fide intention to cause unnecessary harassment, to the applicant or humiliate him at the instance of some body inimical to him. So far, the merits are concerned, they cannot be considered at this stage. As already observed above the condition precedent for the grant of pre-arrest bail is the establishment of mala fide. However, for the purpose of granting bail after arrest this is not the condition precedent and the Court considering the plea of bail shall consider if there is any prima facie case made out against the accused and whether it is a case of further inquiry under section 497(2) Cr.P.C Thus, the consideration for the pre-arrest bail and post-arrest bail are entirely different. In this case, since no case of mala fide is made out, therefore, I alp of the opinion that it is not a fit case for grant of pre-arrest bail. I would like to clarify that the refusal to confirm the interim bail before arrest shall not affect any application if submitted before the trial Court in case the applicant is arrested. For the foregoing reasons, it is held that it is not a fit case for pre-arrest bail and consequently, order granting interim bail dated 6-10-2005 is hereby vacated and the application stands dismissed. H.B.T./I-3/K??????????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.