Haji MUHAMMAD YASIN vs The STATE and another

ORDER

SHAHID HAMEED DAR, J.---The petitioner, Haji Muhammad Yasin seeks post-arrest bail in case-FIR No,108/13, dated 3.10.2013, under sections 419, 420, 468, 471, 409, 109, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, registered at Police Station FIA/ACC, Lahore.

2. Mirza Nadeem Munawar Baig, Commissioner Inland-Revenue (complainant) got lodged the above said FIR with the allegation that:-- Some persons suspiciously attempted to encash income tax refund-vouchers at the counters of Habib Bank Limited, Model Town-A Branch, Bahawalpur, whereon its manager reported the matter to the Chief Commissioner Inland-Revenue, Regional Tax Office, Bahawalpur, so as to verify the genuineness of these refund-vouchers and other refunds; twenty (20) cases were picked up and scanned, which led to the revelation that none of the recipients and beneficiaries thereof ever existed at the given addresses; the LESCO office reported that the electricity bills, on the basis of which refunds were claimed were bogus and forged; a fact-finding committee headed by Commissioner Inland-Revenue (complainant) initially checked 352 cases, in which refunds were issued from 1.8.2010 to 31.1.2011; unit-06 of the defunct Enforcement Collection Division-III, RTO Lahore was investigated, inquirieswere conducted and spot visits were made to ascertain the genuineness or otherwise of the refund-vouchers issued, and multiple deficiencies/ irregularities were detected in all 352 refund-vouchers (details given in the FIR). The break-up of these cases of refund was drawn as under:- No, of bogus refundsAmount involved No, of bogus refunds Amount encashed 305 23,623,187 222 17,140,167 No, of non bogus refundsAmount Involved Amount encashed 47 4,727,281 3,399,764 It was formulated by the Committee that the whole scam might not remain restricted to the officials posted in the unit but extend to the officials posted at Bahawalpur and also involve a few bank officials; Haroon Ahmad, Inland-Revenue Officer remained posted in Unit-06, Enforcement and Collection Division-Ill, Regional Tax Office, Lahore from 30.07.2010 to 06.01.2011; prima facie Haroon Ahmad and Mumtaz Khan UDC, in connivance with other officials of the department and persons from general public, filed belated returns of income, claimed refunds on account of bogus certificates of deductions of the tax and forged electricity bills.

3. At the outset, learned counsel for the petitioner has submitted that the investigating officer worked out a liability of Rs,14,32,400/- against the petitioner by concluding that the mentioned amount, gotten by the co-accused through fake refund vouchers was deposited by them, firstly, in the bank account (UBL, branch Bahawalnagar) of Adeel Faazil, the son-in-law and Abdullah's (UBL, branch Bahawalnagar), a friend of the petitioner and then transferred it to the petitioner's account with UBL, Nagina Chowk branch Pakpattan Sharif, wherefrom it was withdrawn and shared by him with his co-accused; the petitioner has deposited Rs,8,57,270/-, under protest, on 7.7.2017, courtesy his son Waheed; earlier on, an amount of Rs,5,80,130/- was deposited voluntarily in the treasury in April 2011 by some co-accused, who had a joint liability with the petitioner to the tune of the mentioned amount, which, together with the recently deposited amount (Rs,8,57,270), easily surpassed the amount, allegedly embezzled/misappiopriated by the petitioner. Learned counsel has relied on Shamraiz Khan's case reported as 2000 SCM R 157 with the submission that the petitioner's continued incarceration since 17.5.2017 may be of no consequence to the prosecution case.

4. Learned Assistant Attorney General for Pakistan though opposed this bail application, but lukewarmly.

5. The petitioner is not a public servant, but a private person, who got into this case due to transfer of ill-gotten funds (Rs,14,32,400/-) by the co-defrauders to his bank account, which he operated to his and that of their benefit by issuing cheques for withdrawal thereof. His involvement in this case for an offence under section 409, P.P.C. may be open to a serious exception during his trial. He may, at the most, be prosecuted for offences under sections 420, 468, 471 P.P.C., which are punishable by seven years imprisonment each, two of them being non-cognizable and the 3rd one under section 420, P.P.C. being cognizable as well as bailable. Grant of bail in such like offences has been considered a rule by the apex court as well as by this court and rejection thereof an exception.

There exists no such exceptionality that may impede acceptance hereof. Learned law officer has admitted it as correct that the embezzled money, which routed through the petitioner's bank account has already been deposited by him and pecuniarily speaking, he owned nothing to the public exchequer for now. The petitioner's case somewhat assimilated with that of Shamraiz Khan (supra), who was granted bail before arrest by the apex court mainly for the reason that a major portion of the embezzled amount had been deposited by him and for rest of the amount, Rs,5,25,00,000/- he let his securities, almost equal to the residual amount lying with the Prudential Commercial Bank Ltd., Quetta, be encashed by the Nazar of the Balochistan High Court, followed by its withdrawal by the provincial government. In such a situation, keeping the petitioner behind the bars may not be advisable. Let continued incarceration of the petitioner as an under trial prisoner not be exploited by the prosecution as a tool to inflict pre-mature punishment on him.

6. Therefore, this application is accepted and the petitioner is admitted to post-arrest bail subject to furnishing bail bonds in the sum of Rs,2,00,000/- (two lac) with one surety in the like amount to the satisfaction of the learned trial Court.