Khalil ur Rehman (Petitioner) VS D.G NAB (Respondent)

4ta 'l] IN THE HIGH COUR T OF SINDH KARACHI Before:- Mr. Justice Ahmed Ali M. Shaikh, C.J.

Mr. Justice Mohammad Karim Khan Agha, J.

Petition number. name of the D etitioner and their counsel' 1. C.P. No.D-177O of 20\6 Jameel Akhtar V. Chairman NAB & others.

Jameel Akhtar S/o Abul-Haq (petitioner No. i) Through Mr. Iftikhar Hussain, Advocate.

2.C.P. No.D-5599 of 2016 Khalil ur Rehman V. Director General NAB & others. Khalil ur Rehman S/o Muhammad Hanif (petitioner No.2) Through Mr. Muhammad Rehman Ghous, Advocate.

3.C.P. No.D-6276 of 2016 Abdul Hameed Khan Ghouri V. Chairman NAB & others Abdul Hameed Khan Ghouri S/o Abdul Ghani Khan (petitioner No.3)

Through Mr. Iftikhar Hussain, Advocate.

Counsel for the Respondents

Mr. Yassir Sidcliqui, Speclal Prosecutor, NAB

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Date of hearing: 13.12.2O17.

Date of order: 13.12.2017

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Mohammad Karim Khan Asha. J Through the above petitions, the petitioners seek pre arrest bail in Reference No.51 of 2O16 (The State v. Muhammad Yousuf and others).

2.Brief facts of the cas6 as narrated in the NAB Reference No.51 of 2076 are that the investigation revealed that accused No. 1 Muhammad Yousuf got registered a firm in the name and style of M/s Samee Textile by misusing the CNIC of his I employee namely Muhammad Hanif with the Sa-les Tax Department vide Sales Tax Registration No. 120499997 5482 on 13.6.2003 as an exporter. Subsequently M/s Samee Textile applied for changd of particulars of its business status lrom exporter of General items to Exporter/ Importer of Textile l"/

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No.1/1-1-2, Jethanand Building, Burns Garden Area' Halif Karachi. The passport and travel history of Muhammad he was in purported owner of M/s Samee Textile revealed that the firm M/s Oman from 2B.g.2OO3 lo 72'11'2OO4' However' g Samee Textile obtained the sales tax refunds for the months of March, Sep, Oct and Nov, 2O04 when he was not in Pakistan.Thisshowsthatthefirmwasregisteredinhisname but operated bY accused No 1'

The investigation further revealed that M / s Samee

tune of Rs' Textile obtained tota'i Sales Tax Refund to the during the period from March' 2oo4 to March' 3,745,534 l- 2005 as Per the following details:

CHEQUE RPO PRO DA'TE

TAX REFUND SANCTION

CLAINI NO NO. NO,

PERIOD CLAIM AMOUNT

439994 24564 20-Sep-04 I -Mar 04 s00 202 500 T12030410050s 483437 2A236 O8-Dec-O4 l-Se -04 83,668 83,668 rrzogoqlooiog 6i3 oq2 48431 I 29046 28-Dec-04 T1210041000I9 I -Ocl-04 b73.O42 24-Mar-O5 irztto,ttoo+so 1-Nov-04 8l,446 32027 24-Mar-05 Y T 1212041003a 1 I -Dec-04 216 373 216,37 3 7 t2,277

507211 3203 3 24'Ma*Os Tr20I05100122 I-Jan-05 712 277 26-M -05 1-NIar-05 I 7i6 528

T I 20305100201

Total 3,745 834 3, 7 45,834

Samee Textile used 4 The investigation revealed that M/s Sales Tax invoices of following Supplies 15% Sales Tax Sales Tax Registra tion Sr. Name of SuPPlier Sales Amount Amount No

No I I 22 9 9 06 3 3 7

I white Line Tra ders 1 1 7 oo 5 1 1 1 0)9 13, 545,7 44 I 7 66,ao6 l G.S. Ex orters Total 3,7 45 834

the above said

5.The investigation also revealed that Ghouri and RetjLan claims were bogus as Muhammad Arshad Ahmed, the purported owners of supplier firms M/ s White

LineTradersandM/sG.S.Exportersrespectively,denied firms with FBR and owning / registering these supplier name of these firms' opening of any bank account in the that the firm M/s GS 6 The rnvestigation further revealed Abdui Hameed Exporters got registered by (accused No.5) and signatures of Rehan Ghouri bY misusing the CNIC

48o Ahmed. Further, the u.{r".a No.S also prepared ;O submitted the fake t".r..,cyt'ag..ement to FBR in the name of Rehan Ahmed for registerir-r! tn" M/s GS Exporters in Sa-les Tax. The investigation ,..r6d.d that office premises Flat No.269, Matia Apartments, North Karachi of the said firm was taken by accused No.5 ori rent. Further, accused No.S also got registered another firm M / s White Line Traders and opened a bank account no.+iS+-Z of M/s White Line Trades at Bolan Bank, New Chali Branch, Karachi by misusing the CNIC of Arshad Ghouri.

7.The investigation ,revealed, that a forged cheque No. 0036758 of M/s Samee. Textile Faysal Bank Cloth Market Branch, Karachi amounting to Rs. 155,500/- dated 29 .06.2004 issued in tiie name of M/ s While Line Traders was submitted to FBR as a proof of payment to the supplier for the compliance of section 73 of sales .t.ax Act 1990. However the tnvestigation revealed that the actua.l cheque no. 0036758 of Rs. 1,552,500/- dated 24.06.2OO4 was issued in the name of M/s Fatani Internarional and the same cheque was credited on 29.6.2004 in the account of the said firm maintained at Faysai Bank Cloth Market Branch. The investigation revealed that the said bank account of M/ s Fatali International was opened by accused No.1 which 1 established that M / s Samee Textile submitted the fake invoices of M/ s White Line Traders as no payment was actually made to the said supplier.

B. The investigation revealed that Muhammad yousuf (accused No.1) was the Real proprietor and beneficiary of M/s Samee Textile who fraudulently and in active connivance of accused No.2 Jamil Akhtar got registered the firm in the name of his employee Muhammad Hanif in Sales Tax as commercial exporter. Subsequently, accused No. i in connivance with accused no.3 got the particulars of M/s Samee Textile changed lrom General Exporter to Textile Exporter and also changed the business address. Further, the accused no. 1 submitted lake tenancy agreement to FBR

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i executed between his employee Muhammad Hanif and the owner of the premises namely Saad Ahmed Qureshi' Th'e investigation further revealed that the office premises i'e' Office No.1/ I and 211, Jethanand Building, Khushaaldas t\ Street Burns Carden Area, Karachi was never rented out to Muhammad Hanif but the same was actuaily rented out to accused no.1. Further, from Bank Alfalah account No.01356785 of M/s Samee Textile, where the cheques of refund were deposited two payments were made to Abdul Wahid by the accused ho.l which shows that he was rea'l operator of M/s Samee,Textile and actuai beneficiary of the Sales Tax Refund.

g. The investigation . revealed that the accused No.2 Inspector Jamil Akhter submitted the physical verification report of M/s Samee Textile wherein he mentioned that he met with Mr. Feroze. Further, accused no'2 did not meet with

Muhammad Hanif, the purported owner of the firm for the

\ purpose of verification of the owner and the firm' Thus' accusedno.2withoutverificationofownershipofthefirm prepared the physical verification report resulting in illegal registration of said firm which subsequently obtained Sales Tax Refund.

10.The investigation revealed that when M/s Samee Textile and applied for Change in Particulars of business address business nature the accused no'3 Inspector (Retired) the same and Khursheed Ahmed Khan on 13 4'2004 verified prepared the fake physical verification report by mentioning of the the meeting with Muhammad Hanif purported owner said firm. However, investigation revealed that Muhammad

HanifwasinOmanduringthesaiddate.Hence,accusedNo.3 enabled M/ s' prepared the false verification report which obtain illegal sales Samee Textile to remain in existence and loss to the tax refund on fake and flYing invorce causing National Exchequer.

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11.The investigation further revealed that accused No.4 I{hali.l ur Rehman assisted, aided and abetted accused no.1 by opening fake and fictitious bank accounts in the nalne of I M/s Samee Textile, M/s GS Exporter, M/s Wasay t International and M/s Iqra Corporation. The accused No.4 made multiple paper entries by transferring the amount from ,/ his business bank account titled as M/s Khalil Hanif Impex to these balk accounts and after touting the amount multiple times, the amount again deposited into his bank account. This enabled M/s Samee Textile to show the transaction as a proof of payment to its supplier M/s GS Exporters' This act of accused faciiitated the accused no.1 in obtaining illegal Sales Tax Refund which caused loss to the National Exchequer.

12.The investigation further revealed that accused No'5 Inspector Abdul Hameed Ghouri got registered the fictitious firms M/s GS Exporters and M/s White Line Traders' The said firm issued fake invoices to M/s Samee Textile and caused hear,y loss to the National Bxchequer.

13.'lt has been established that the accused No' 1 in connivance with accused no.2 to 5 obtained illegal sales tax refund to the tune of Rs.3,745,834/-, causing loss to the National Exchequer. The accused no.2, 3 and 5 misused their authority to extend undue favor to the accused No'l' The I accused No.4 abetted, aided and assisted accused no'1 by opening fictitious bank accounts. Thus the accused persons have committed the offence of corruption and corrupt practices as defined u/s 9(a) of NAO, 1999 punishable u/s 10 of the Ordinance and scheduled thereto and thus Reference No.51 of 20 16 (The State v. Muhammad Yousuf and 1 others) has been filed against them before an accountability court in Karachi'

14.Learned counsel for the petltloners submitted that to post accused No. 3 Khursheed Khan had been admitted in CP D arrest bail by this Court vide order dated O3-O4-2O17

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6120/2016 in the same reference and that his role was equal if not greater than that of the petitioners and as such based on the rule of consistency all the petitioners were entitled to have their pre arrest bail confirmed. .

1 5. Learned Special 'Prosecutor NAB was unabie to rebut this contention.

1,6. We have considered the submissions of learned counsel for the parties; case law cited by them and carefully perused the material available on record.

17.Khursheed's case (Supra) has not been challenged by NAB and has reached finality. It appears that petitioners 1, 2 and 3 and accused Khursheed Khan all connived with each other and the alleged main accused Muhammed Yousaf in one way or the other in order to enable the alleged main accused Muhammed Yousaf, who is now absconding, to illegally claim a sales tax refund in the region of RS 37 lacs.

18.Having considered the roles of each of the petitioners it appears that each of their roles was similar to, or no worse than, that of the accused Khursheed Khan who vide above referred order dated 03-04-2017 has aiready been granted post arrest bail by this court. As such in our view the petitioners are prima facie entitled to have their pre arrest bail confirmed based on the rule of consistency. We have also taken into consideration that the amount involved is relatively rninor being in the region of RS 37 lacs in the context of this being a NAB case under the NAO which is meant to deal with cases of mega corruption especially if we split the liability 5 1 ways between each of the 5 accused which would make the liability of each accused on NAB's own calculations less than RS 8 lacs per accused.

19.It is true that these petitions relate to pre arrest bail which requires different considerations to post arrest bail which was the case of Khursheed (Supra) as mentioned .bou7,.-.

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such as the presence of malafide on the part of the 7 complainant or the investigative agency. However in our' view to recall the petitioner's pre arrest bail on this ground alone 7 would serve no useful purpose and would defeat the ends of justice as based on Khursheed's case (Supra) the petitioners would a-11 be granted Post arrest bail in any event on the rule of consistency. In this respect reliance is placed on the case ol Muhammed Ramzan V Zaffarullah (1986 SCMR 1380).

20.Thus for the above reasons Jameel Akhtar S/o Abul- Haq (petitioner No.1), Khalil ur Rehman S/o Muhammad Hanif (petitioner No.2) and Abdul Hameed Khan Ghouri S/o Abdui Ghani Khan's (petitioner No'3) pre arrest bail is confirmed on the same terms and conditions'

BY

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