ARSHAD FAROOQ SIDDIQUI/Accused vs THE STATE
This matter concerns a petition for confirmation of pre-arrest bail by the applicant, the proprietor of M/s Zunera International, who was accused of committing tax fraud under Section 33 of the Sales Tax Act, 1990. The prosecution alleged that the applicant claimed a sales tax refund based on fake shipping bills and false bills of lading, asserting that no goods were exported. Conversely, the applicant contended that the exports were genuine, providing bank statements as evidence of foreign exchange remittances received for the disputed transactions. The Court observed that both parties presented conflicting documentary evidence, the veracity of which required further investigation. Emphasizing that an accused is entitled to the benefit of doubt even at the bail stage and that personal liberty should not be jeopardized without sufficient evidence, the Court held that the prosecution failed to establish a clear case of fraud at this preliminary stage. Consequently, the Court confirmed the interim bail, directing the applicant to cooperate with the investigation while granting the prosecution liberty to seek bail cancellation if subsequent evidence proves the allegations.
- Is an accused entitled to the benefit of doubt at the stage of bail?
- Can pre-arrest bail be confirmed when both the prosecution and the accused present conflicting documentary evidence requiring further investigation?
- Does the absence of sufficient evidence against an accused justify the grant of bail to protect the fundamental right to liberty?
- Section 33, Sales Tax Act 1990
ORDER
1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The applicant/accused who is proprietor of M/s Zunera International, Karachi, is required by the Sales Tax Department, for the commission of offence under section 33 of the Sales Tax Act, 1990.
2. ' The prosecution case is that the applicant submitted a claim for refund of sale tax stating therein that export was made by him against three shipping bills which were found to be fake. According to prosecution, no container were "passed in" against the shipping bills on the basis whereof the refund was claimed. It was further the case of prosecution that the bill of lading was false.
3. ' On the other hand, the learned counsel for the applicant has produced the bank statement to show that not only the export has been made by the applicant against the disputed shipping bills but the remittances in foreign exchange have also been received in the Bank Al-Falah Limited, and has been credited to the account of M/s Zunera International.
4. ' The learned counsel for the applicant has submitted that the applicant is being harassed unlawfully and in fact the export has been made and the remittances have been received which is sufficient proof of the fact that the applicant lawfully claimed the refund and no tax fraud has been committed.
5. ' On the other hand, the learned Standing Counsel and Mr. Tanvir Sibtain Mahmud, learned counsel for the Sales Tax Department, have opposed the confirmation of interim bail to the applicant. They have placed reliance on the reports of PRAL and Clearing and Forwarding Agent United Marine Agencies (Pvt.) Ltd. They have further contended that the condition precedent for grant of bail before arrest is that there should be mala fide on the part of the prosecution, or there should be material available on record to show that harassment was being caused and none of condition has been fulfilled in the present case.
6. ' I have carefully considered the contentions raised by the learned Advocates for the parties. Since the case is under investigation, therefore, I would not like to make any observation about merits of the case, as it is likely to affect the accused or the prosecution. I would only observe that both the parties are equipped with documents in their possession in support of their respective contentions, which shall be ascertained after completion of investigation. In any case, it cannot be said that the contention on behalf of the applicant or prosecution is without substance. It is trite law that an accused person is entitled for benefit of doubt even at the stage of bail. So far the contention of Mr. Sibtain Mahmud, that the condition precedent for grant of bail before arrest has not been fulfilled, I am of the opinion that if sufficient evidence is not available with the prosecution, then the liberty of a person should not be jeopardized, as it would amount to depriving the citizen of his fundamental right. The liberty of a person can be deprived if there is sufficient material produced by the prosecution, otherwise it would be a case of harassment to a citizen.
7. ' Taking of the above facts and circumstances, I am of the opinion that, since it is not possible to say whether the version of the applicant is correct or the prosecution version is reliable, therefore, the interim bail before arrest granted to applicant on 12-9-2005 is hereby confirmed.
8. ' However, the applicant is directed to cooperate with the prosecution till the completion of investigation and if the applicant fails to cooperate with the prosecution, the prosecution shall be at liberty to submit application for cancellation of bail. If after completion investigation, the prosecution is able to collect sufficient evidence against the applicant and after examination of bank record is able to show that it has no nexus with the shipping bills on the basis whereof the prosecution of the applicant is required, the prosecution shall be at liberty to move application for recalling of the order and cancellation of the bail.