Messrs QADIR FABRICS through Managing Partner vs The FEDERATION OF PAKISTAN through Secretary Revenue Division_Chairman Federal Board of Revenue and 3 others
The petitioners approached the High Court through constitutional petitions seeking the return of post-dated cheques submitted by them to secure post-arrest bail before the Special Judge Customs and Taxation in connection with an FIR registered under the Sales Tax Act, 1990. The core legal question was whether the High Court, in its constitutional jurisdiction, could order the return of cheques voluntarily submitted by the accused persons for obtaining bail, and whether such recovery was unlawful. The court held that since the cheques were submitted voluntarily to obtain bail without any contemporaneous objection or challenge to the bail-granting order itself, the petitions were misconceived and unjustified. Furthermore, any dispute regarding sales tax liability must be resolved before the forums provided under the relevant statute. The key principle laid down is that an accused who voluntarily furnishes post-dated cheques to secure bail cannot subsequently invoke the constitutional jurisdiction of the High Court to reclaim those cheques without challenging the underlying bail order.
- Whether the High Court can order the return of post-dated cheques submitted voluntarily by an accused to secure post-arrest bail under its constitutional jurisdiction?
- Can an accused challenge the submission of cheques used for obtaining bail without challenging the bail-granting order itself?
- Whether disputes regarding tax liability and short payment under the Sales Tax Act, 1990 should be determined by forums provided under the statute?
- Section 11, Sales Tax Act, 1990
- Section 2(37), Sales Tax Act, 1990
Through aforesaid petitions, the petitioners have sought the following relief(s):- "(i) Cheques obtained by the respondents from the petitioner are without lawful consideration, in absence of mandatory notice for payment or adjudged short payment under the mandate of section 11 of the Sales Tax Act, 1990.
(ii) The, act of omission or commission on part of the respondents with help of the Special Judge (Taxation) for recovery of money from the petitioner is unlawful and having no legal effect on the legal rights of the petitioner.
(iii) Direction to the respondents to return the cheques (Annexure "C") back to the petitioner and not to fabricate/add names of the payee of their choice and not to present the name to the bank of the petitioner as to render the same as dishonoured . "
2. Briefly, the facts as stated are that both the petitioners who are registered under the Sales Tax Act, 1990 as manufacturers, have been nominated in FIR bearing No, 1/2013 under section 2(37) of the Sales Tax Act, 1990 P.S. Directorate I&I-IR Karachi through interim challan dated 19-9-2013 filed before the Special Judge Customs and Taxation, Karachi, whereafter to obtain bail from the trial Court, the petitioners had submitted three post-dated cheques amounting to Rs, 64,41,046 as detailed in Annexure "C" at page, 51 in C.P. No, 5270 of 2013 and 5 five post-dated, cheques amounting to Rs,64,49,314 as detailed in Annexure "C" at Page 53.
3. Learned counsel for the petitioners has contended that the said cheques were obtained forcibly by the prosecution with the help of the Special Judge Customs and Taxation, whereas, no such recovery could have been effected in that manner hence through instant petition the petitioners seek cancellation/return of the said post-dated cheques.
4. On the other hand the Standing counsel has opposed the maintainability of aforesaid petitions and has contended that the question as to whether such cheques were submitted voluntarily or otherwise cannot be determined by this Court under its Constitutional jurisdiction.
5. We have heard both the learned Counsel and perused the record. It appears that an FIR bearing No, 1/2013 was registered against one Shabbir Hussain before the Special Judge Customs and Taxation under the Sales Tax Act, 1990, where after investigation was conducted and through interim challan dated 19-9-2013, various other persons, including the petitioners have been nominated in the said crime of tax fraud. It further appears that pursuant to nomination in the interim challan the petitioners in order to obtain bail after arrest before the Court of Special Judge Customs and Taxation at Karachi, had submitted postdated cheques and had obtained bail from the said Court. Perusal of Annexure "C" (page 51) in C.P. No, 5270 of 2013 and Annexure "C" (Page 53) in CP No, 5272 of 2013, through which the said cheques were submitted for obtaining after arrest bail, it appears that the same were submitted voluntarily as no objection or reservation with regard to them being furnished without prejudice, has been endorsed or mentioned on the said letters of the petitioners. After having perused the record we are of the view that since the bail had been obtained by the petitioners after furnishing post-dated cheques on their own, the objection being raised through aforesaid petitions appears to be misconceived and is without any justification, whereas the petitioners have neither annexed nor have challenged the bail order itself through these petitions. It will be relevant to observe that petitioners have not sought declaration regarding legality or otherwise of the bail granting order passed by the Special Judge (Customs & Taxation), wherein, the petitioner deposited the cheques in favour of respondents. Whereas, there is no allegation by the petitioners that such cheques were obtained by Customs Authorities by force or under coercion. Moreover, the dispute regarding liability of the petitioners towards Sales Tax etc. Is to be determined and decided by the forums provided under the relevant statute, where all such objections may be raised, which may be decided on their own merits.
6. In view of herein above facts and circumstances of the instant case, we are of the opinion that no ground for seeking any indulgence from this Court under its writ jurisdiction has been made out.
Accordingly, both the petitions were dismissed by us vide short order dated 6-2-2015 and above are the reasons thereof.