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Petitioner: WALI MUHAMMAD SHAIKH VS Respondent: FEDERATION OF PAKISTAN through Secretary and 2 others
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Aziz-ur-Rehman Title:WALI MUHAMMAD SHAIKH vs FEDERATION OF PAKISTAN through Secretary
and 2 others Case No.: Constitutional Petition No, D-1914 of 2015 Date of Judgment:2018-07-19 Reported As: 2018 YLR 2624 Result: Petition allowed Judgment ORDER AQEEL AHMED ABBASI, J.---Through instant petition, petitioner has impugned the order dated 10.12.2014 passed by the Presiding Officer, Special Court (Offences in Banks) Sindh at Karachi in Case No, 37/2010 (The State v. Muhammad Aslam Khan and others), Crime No, 49 of 2008 under Sections 409/419/ 420/468/471/109/34, P.P.C. at FIA, Crime Circle, Karachi, whereby, the application under Section 249-A Cr.P.C. filed by the petitioner, seeking quashment of the FIR and proceedings against the petitioner, has been dismissed. The petitioner has sought the relief in the following terms:,- I. Declare that the trial of the petitioner before the trial Court being in violation of law and without any basis or grounds and the petitioner is liable to be acquitted; II. Declare that the respondent No,2 and its officers have no lawful authority or jurisdiction under the law to take any action in respect of matters falling within the ambit of the provisions of the Income Tax Ordinance, 2001; III. Set-aside the impugned order dated 10.12.2014; IV. Pass order of acquittal of the petitioner from the Case No,37/ 2010 before learned trial Court initiated vide FIR No, 49/2008 registered by respondent No,2; V. Prohibit and restrain the respondents Nos,2 and 3 from proceeding with the trial/ prosecution of the petitioner lodged vide FIR No, 49/08 or taking any adverse action against the petitioner; VI. Grant any other relief deemed just and appropriate in the circumstances of the case; VII. Grant costs of the petition. 2. Briefly, the facts as noted by the learned Presiding Officer in the impugned order, while dismissing
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the application filed by the petitioner under Section 249-A Cr.P.C. are, that an FIR No,49/2008 was registered at Police Station FIA Crime Circle, Karachi under Sections 409/419/ 420/ 468/ 471/ 109/ 34, P.P.C. against accused persons nominated therein, whereas, petitioner has been nominated subsequently in the final Charge Sheet submitted by the prosecution before the trial Court. Petitioner is an employee of Federal Board of Revenue [FBR], presently working as Deputy Commissioner, Inland Revenue, Audit Unit-01, Zone-II, RTO-II, Karachi has been implicated on the .allegations that the petitioner along with other accused persons working on various posts under FBR, during the course of their employment and postings in the Inland Revenue Department, opened fake and fabricated bank accounts in the name and style of non-existing parties and companies, and by misusing their authority and powers, issued 3063 refund cheques during the year 2005, 2006 and 2007 and deposited the said refund, cheques in fake accounts and got the same encashed in connivance with bank officials, hence caused loss of revenue to the tune of Rs,83 million by their fraudulent act to the public exchequer. Accordingly, the aforesaid FIR was registered against the accused persons, including the petitioner, whereafter, challan against all the aceused persons has been submitted before the Special Court (Offences in respect of Banks) at Karachi where all accused are facing trial. Charge was framed against the petitioner on 27.05.2011 and since then, petitioner is facing trial. 3. It is pertinent to mention that prior to filing instant petition, petitioner had filed another petition being C.P.No,D-4280/2012, seeking declaration to the effect that FIA has no jurisdiction to investigate the matter against the officers of Income Tax Department, who were under the Federal Board of Revenue [FBR] to administer taxation laws, whereas, several other grounds were also raised in the said petition by the petitioner for seeking quashment of the FIR and proceedings emanating therefrom. However, in view of the fact that an application filed by the petitioner under Section 249-A Cr.P.C. before the trial Court, seeking quashment of FIR/Proceedings was already pending, therefore, above petition was disposed of vide order dated 21.10.2014 in the following terms:-- "The petitioner has prayed to this court to declare that the FIA has no jurisdiction to investigate the matters against the officers of Income Tax Department, who work under Income Tax Ordinance, 2001. He further prayed for quashment of Crime No,49/2008 lodged under sections 408, 419, 420, 468, 471, 109 and 34, P.P.C. at Police Station FIA, Crime Circle, Karachi. During the course of arguments, learned counsel for petitioner informed the court that he has already moved application under section 249-A, Cr.P.C., which is pending in the trial court without any decision. Learned Standing Counsel submits that directions may be issued to trial court to decide this application expeditiously to which learned counsel for petitioner is agreed. Since proper application is already pending and petitioner has directly approached this court without first waiting the decision of trial court. The petition is disposed of along with pending applications with the directions to trial court to decide application moved under section 249-A Cr.P.C., within a period of one month and compliance shall be submitted to this court through MIT-II." 4. Pursuant to aforesaid order passed by this Court, learned Presiding Officer has been pleased to dismiss the application of the petitioner under Section 249-A, Cr.P.C. through impugned order dated 10.12.2014, which has been assailed by the petitioner through instant petition, while raising several legal grounds, including the ground regarding jurisdiction of FIA, who according to petitioner cannot proceed against the petitioner while performing his duties under the Federal Board of Revenue (FBR) as an Officer of Inland Revenue, in respect of Assessment Proceedings under the Income Tax Ordinance, 2001. It has been vehemently argued by learned counsel for the petitioner that petitioner is innocent, who has been falsely implicated in the aforesaid proceedings by the FIA Authorities on the basis of a complaint wherein, there is no allegation whatsoever against the petitioner nor even in the FIR name of the petitioner has been mentioned. Per learned
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counsel, even no role whatsoever has been assigned to the petitioner by the prosecution while submitting the interim challan, however while submitting the final challan, the petitioner has been falsely implicated on the charges which are groundless and have no factual or legal basis to support the frivolous allegations against the petitioner. Learned counsel for the petitioner has argued that the aforesaid FIR was registered in the year 2008, whereas, the case was challaned in the year 2010 and since then, the prosecution has failed to examine any prosecution witness nor could produce any evidence or material, which may implicate the petitioner with the alleged crime, however, the petitioner is facing the agony of prolonged trial since last eight years and has to attend the Court on each and every date of hearing, however, without any progress whatsoever in the case. According to learned counsel, the only allegation against the petitioner, as detailed in the final charge sheet submitted by the prosecution before the learned trial Court which also reflects in charge framed against the petitioner on 27.04.2011 by the trial Court is. that petitioner has issued/ sanctioned six cheques of refund in the names of different persons, who were not entitled to such refund, with connivance of other accused persons, and has caused loss to the public exchequer in the sum of Rs,5,27,000/-. According to learned counsel, about 124 witnesses have been cited as prosecution witnesses, whose statements have been recorded by the Investigating Officer, however, none of the witness has implicated the petitioner nor there has been any connection of the petitioner with the cheques which according to prosecution were issued in the name of fake parties by the petitioner. Per learned counsel, prosecution could not produce a single document that petitioner has any role whatsoever in respect of the allegations as contained in the FIR, which has been registered against some account holders who are all private persons, as well as against the bank officials, who according to prosecution story, have managed to encash the refund cheques by depositing the same in bogus bank accounts with the connivance of the bank officials. Per learned counsel, not a single document or evidence has been produced by the prosecution against the petitioner to show that petitioner was either the Assessing Officer or has signed or issued any of the Refund Cheques in the name of fake parties, however, in spite of such fact, the prosecution is dragging the petitioner in the above frivolous proceedings for the last about ten years and have failed to examine a single witness, which amounts to abuse of process of law. Per learned counsel, the prosecution has to prove the allegations against the petitioner to the effect that petitioner has processed the refund cases of non-existing companies, or has issued refund cheques in respect of such non-existing companies, or encashed the same by depositing the same in bogus accounts with the connivance of bank officials. However, according to learned counsel, prosecution is not in possession of a single document or evidence, including Assessment Order, Refund Cheque etc. which may bear signatures of the petitioner. Learned counsel further argued that the entire proceedings initiated against the petitioner, pursuant to aforesaid FIR, besides having no legal or factual justification, are tainted with malice, as the prosecution has never confronted the petitioner with any material, including the assessment order refund cheques, which according to prosecution, have been passed or processed by the petitioner in violation of law and in respect of non-existing taxpayers. 5. Learned counsel further submits that according to prosecution story, the case against the petitioner and other accused persons, is based on documentary evidence and the official record of the Income Tax Department, as well as the record of Allied Bank Limited, Hyderi Branch, Karachi. However, prosecution has failed to examine a single prosecution witness to support prosecution story, in spite of lapse of more than ten years from the date of registration of FIR and eight years from the date of submission of final charge sheet, which fact alone is sufficient to prove that the case against the petitioner is of no evidence, and there is no possibility of conviction of the petitioner in the aforesaid FIR, which is otherwise based on false and frivolous allegations. Per learned counsel, charge against petitioner is groundless and there is no possibility of conviction of
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the petitioner in above crime. Learned counsel for the petitioner has submitted that the prosecution has not even recorded statements of such parties in respect of whom, the alleged refund cheques were issued by the petitioner, nor any one of them has come forward with a complaint that their refund cheques(s) have been deposited in some fake accounts and got encashed by the petitioner. Learned counsel has further argued that the petitioner is being otherwise, discriminated by the prosecution, as according to learned counsel, prosecution has already withdrawn cases against six officers of the Inland Revenue under Section 294, Cr.P.C, who according to prosecution, have issued refund cheques for an amount upto Rs,5,00,000/- on the pretext that the amount is meager, therefore, no officer would risk his career for such meager amount. Whereas, according to learned counsel, the total amount of six cheques attributed to the petitioner as per the charge framed against him by the learned trial Court is Rs,5,27,000/-, however, instead of according similar treatment to the petitioner, the prosecution intends to drag the petitioner in the aforesaid frivolous proceedings for an indefinite period, just to humiliate the petitioner, and to cause serious mental agony and injury to the reputation of the petitioner, who is a Public Servant in grade-18, and has never been charged for any such offence, nor has ever been issued any notice from his department for misconduct through the career. 6. While referring to the impugned order passed by the learned trial Court, learned counsel for the petitioner has vehemently argued that the reason, which has been assigned by the learned trial Court, while rejecting the application under Section 249-A, Cr.P.C, is totally erroneous, and contrary to the settled legal position, as according to learned counsel, the burden of proof lies against the prosecution to establish the allegations against an accused by producing evidence before the learned trial Court, and not upon the accused to prove his innocence, whereas, according to learned counsel, in the impugned order passed by the learned trial Court, such burden has been shifted upon the accused while observing "that petitioner Wali Muhammad Shaikh, who as per charge sheet, issued six cheques, has not brought any document on record or attached with the application under Section 249-A, Cr.P.C., to show that he had lawfully sanctioned refund cases of 6 persons or companies, which according to prosecution are non-existing parties." 7. While concluding his arguments, learned counsel for the petitioner has argued that the I.O. of the case present in Court, may be directed to produce any material, document or evidence or may refer to any such statement of PWs, which may somehow connect or implicate the petitioner with the alleged crime in the aforesaid FIR or the allegations as contained the charge framed by the learned trial Court against the petitioner, so that it may be ascertained as to whether there is any possibility of conviction of the petitioner in the aforesaid crime if such evidence is produced by the prosecution before the trial Court. Per learned counsel, this is a classical case of harassment and abuse of the process of law, particularly, when all the charges against the petitioner are groundless, whereas, inordinate unexplained delay of the trial, has otherwise rendered the proceedings against the petitioner as illegal, therefore, the FIR and proceedings against the petitioner, namely, Wali Muhammad Shaikh, are liable to be quashed. 8. In support of his contentions, learned counsel for the petitioner has placed reliance on the following cases: i) Miraj Khan v. Gul Ahmed and 3 others (2000 SCM R 122); ii) The State v. Ash Ali Zardari and another (1994 SCM R 798); iii) Safdar Ali v, Ghulam Mustafa (1995 M LD 595); iv) Abdul Qadir Wawala v. The State (2000 PCr. L J 1734): v. State of Islamic Republic of Pakistan v. Kenneth Marshal and 2 others (2003 PTD 675). 9. Conversely, Mr. Salman Talibud-din, Additional Attorney General, duly assisted by the officers of FIA including the Deputy Director (Law) and I.O. of the case, has controverted the submissions made by the learned counsel for the petitioner and has raised an objection as to maintainability of
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instant petition, on the ground that the case of the petitioner and other co-accused is pending before the trial Court for decision in accordance with law, after recording of evidence, whereas, there are specific allegations against the petitioner, therefore, the request of the petitioner, seeking quashment of FIR and proceedings, is misconceived, hence instant petition is liable to be dismissed in limine. It has been further contended by the learned Additional Attorney General that quashment of FIR and proceedings emanating therefrom in respect of one of the several accused in piecemeal is otherwise misconceived and not permissible, as according to learned Additional Attorney General, the trial has to be concluded in respect of all the accused persons, whereas, the entire case has to be decided through one combined order after recording evidence. Moreover, according to learned Additional Attorney General, the role assigned to the petitioner in the FIR and the final charge sheet is similar of the role assigned to some of other co-accused persons, who are officers of Inland Revenue [FBR] and have also been charged on the same set of allegations that they have fraudulently issued refund cheques in respect of non-existing taxpayers on bogus NTN which have been encashed while depositing the same in fake accounts with the connivance of private account holders and bank officials, therefore, have caused loss to the public exchequer. Per learned Addl. Attorney General, if the request of the petitioner at this stage, seeking quashment of FIR and proceedings is accepted, it will adversely affect the case of the prosecution against other co-accused persons before the learned trial Court, and the case against the petitioner would not be decided on merits, after recording of evidence. According to learned Additional Attorney General, as per his instruction, one of the prosecution witness, namely, PW-Ms. Reema Jamil has been recently examined, whereas, prosecution has filed list of 124 witnesses to be examined in the instant case, therefore, requests that learned trial Court may be directed to record the evidence of the remaining prosecution witnesses and to decide the case at an early date, instead of acceding to the request of the petitioner for quashment of the FIR and proceedings pending adjudication before the learned trial Court. It has been prayed that instant petition may be dismissed for being not maintainable for the above reasons. 10. We have heard the learned counsel for the parties, perused the record with their assistance and have also gone through the impugned Order passed by the learned trial Court. We have also examined the material placed before us by the Deputy Director [Law] and the Investigating Officer of the instant case through statement, which included case diaries of the trial Court, list of the prosecution witnesses and deposition of the solitary prosecution witness, namely, Ms. Reema Jamil in the instant matter. 11. Through instant petition, the petitioner has impugned the order dated 10.12.2014 passed by the Presiding Officer, Special Court (Offences in Banks) Sindh at. Karachi in Case No, 37/2010 (The State v. Muhammad Aslam Khan and others), Crime No, 49 of 2008 under sections 409/ 419/ 420/ 468/ 471/ 109/34, P.P.C. at FIA, Crime Circle, Karachi, whereby, the application under Section 249-A Cr.P.C. filed by the petitioner, seeking quashment of FIR and the proceedings before the trial Court, has been dismissed. Grounds agitated before the learned trial Court for seeking quashment of FIR and the proceedings are, firstly, the FIA has no jurisdiction to lodge an FIR against the petitioner, who is an officer of Inland Revenue, FBR, in respect of matters relating to Assessment of Income tax liability under the Income Tax Ordinance, 2001, which includes creation of Refund as well, particularly, in the absence of any allegation of corruption, or the allegation that petitioner has acquired assets, which are unexplained and beyond the known sources of his income. Secondly, the charge against the petitioner is groundless, and there is no possibility of his conviction, as the prosecution is not in possession of any material or evidence, which may connect the petitioner with the alleged crime. 12. From perusal of FIR No, 49/2008, registered at Police Station Crime Circle, FIA, Karachi dated 20.08.2008, it has been observed that pursuant to a complaint dated 19.08.2008 lodged by one Sarfraz H. Siddiqui, Regional Head, ABL, Nazimabad Region, Karachi to the Deputy Director, FR, Crime
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Circle, Karachi, against Muhammad Aslam Khan, Chief Manager; Kashif Shahid, Teller/Cashier of ABL, Hyderi Market Branch, Karachi; Muhammad Azeem Khan, his wife Mrs. Nishat Fatima and others, the aforesaid FIR was registered, while incorporating the complaint of Sarfraz H. Siddiqui, verbatim in the said FIR.' After incorporating the complaint, the Inspector, FIA, Crime Circle, Karachi has made endorsement to the effect that "acts of the accused persons named in the complaint, attract the commission of offences punishable under Sections 408/419/420/ 468/ 471/ 109/ 34, P.P.C., hence registration of case against the above accused persons and others under orders contained in letter No, 6544-45 dated 20.08.2008 of the Deputy Director, FIA, Crime Circle, Karachi, investigation is taken up by the undersigned." From tentative perusal of the allegations contained in the complaint incorporated in the aforesaid FIR, it has been noted that the accused persons named in the complaint have been charged with an offence to defraud the original bona fide beneficiary of State Bank of Pakistan [SBP] cheques with intention to deceive, hence committed an offence of criminal breach of trust and the banks' operation manual, whereas, there seems no direct allegation against the petitioner, namely, Wali Muhammad Shaikh, in connection with the offence committed by the accused persons named in the aforesaid FIR, who are either private account holders or the bank officials of Allied Bank Limited. However, after investigation, interim challans were submitted before the learned trial Court, wherein, the role of the petitioner does not appear, whereas, petitioner has been implicated by the prosecution at the time of submitting Final Charge Sheet No,08/2010 dated 04.02.2010, wherein, along with other private accused persons and bank officials. name of the petitioner and other officials of Inland Revenue has been inserted at Serial No, 25, wherein, it has been alleged that "during examination of the record of income tax, it transpired that accused income tax officers, after having issued bogus income tax refund cheques had fraudulently with common objective and criminal intention destroyed the complete record concerning such issuance, which they were bound to retain being Government Record". It has been further stated in the charge sheet that from the investigation, it has been established that the accused persons, in connivance with each other being bankers, private persons and public servants, have intentionally and 'deliberately embezzled a total amount of 5,25,18,742/-during the year 2007 through wrongful issuance of refund cheques, deposited in the account of Muhammad Azeem Khan, Mrs. Nishat Fatima, Muhammad Sohail Siddiqui, Muhammad Sharfuddin and Nadeem Akhtar and others causing wrongful loss to the government exchequer and corresponding wrongful gain to themselves, which act on the part of said accused persons rendered them liable for prosecution under Sections 409/ 420/ 468/ 471/ 473/ 109/34, P.P.C. read with Section 5(2), PCA-II, 1947. 13. It is pertinent to mention that during the course of hearing instant petition, the Investigating officer of the case was summoned from time to time with the directions to produce the relevant record and the material or evidence, if any, against the petitioner, which may connect the petitioner with the alleged offence i,e, having processed the refund case or issued subject refund cheques in the name of nonexisting taxpayer(s), however, the Investigating Officer, in spite of having shown appearance along with senior officers of FIA on number of occasions before this Court, could not place on record any requisite document(s) or statement of any witness recorded by him during the investigation, to support the allegation against the petitioner as contained in the Final Charge Sheet or the Charge framed by the learned trial Court against the petitioner in the instant case. The Investigating Officer of the case was also inquired as to how many prosecution witnesses, have so far been examined out of 124 PWs during last nine (9) years' before the learned trial Court, in response to which, he has candidly stated that only one PW, namely, Ms. Reema Jamil has been examined recently, copy of whose deposition has been placed on record along with statement dated 28.02.2018 signed by one Mumtaz-ul-Hassan, Deputy Director (Law), FIA, Sindh, Karachi. Along with above statement, copy of Case Diaries of the trial Court, List of Prosecution
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Witnesses, has also been filed. Perusal of the case diaries of the trial Court, starting from 29.06.2010 to 06.01.2018, shows that the prosecution has taken no efforts whatsoever to get the prosecution witnesses examined before the learned trial Court, whereas, it further appears that even the complainant of the FIR, namely, Sarfraz H. Siddiqui has not been produced so far before the trial Court for recording his evidence in support of the allegations as contained in the FIR or in the charge sheet submitted by the prosecution. The above FIR…
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