MUHAMMAD ASIF VS State, 2016 PTD-SUPREME-COURT 2393 (2016)

(Against the order dated 4-12-2015 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.15427-B of 2015)

Criminal Procedure Code (V of 1898)---

----S. 498---Sales Tax Act (VII of 1990), Ss. 2(37), 33(5), 33(8), 33(11-C), 33(12), 33(13) & 33(16)---Evasion of sales tax---Pre-arrest bail, grant of---Accused was director of a business concern and the allegation against him and his co-accused was that the record recovered from their business premises disclosed huge discrepancies pointing towards a wilful and deliberate evasion of the sales tax---Order-in-original passed by the competent authority fixing liability upon the accused was completely set aside by the Appellate Tribunal---Department had filed a Reference against order of Appellate Tribunal, which was pending before the High Court with no interim relief in favour of the Department---Present FIR was based upon a permission granted and a direction issued by the competent authority in Inland Revenue, which in turn was based upon the liability of the accused determined by the Department but if the said determination of the liability itself had been set aside (by the Appellate Tribunal) then the foundation of the present criminal case appeared to be shaken and in the absence of any determined or established liability of the accused insistence by the investigating agency upon arrest of the accused may smack of lack of bona fide on its part---Apart from that the allegations levelled against the accused required explanation of the record of his business concern and the accused was likely to be handicapped in his defence if he was taken into custody---Even if the accused was admitted to bail he still had to keep on joining the investigation if and when required to do so by the investigating agency and if he failed to do so then that may be considered to be a valid ground for seeking cancellation of his bail---Supreme Court clarified that if the Reference presently pending before the High Court was decided in favour of the Department and if the accused's liability was determined on the basis of the answer to the Reference even then the Department may have a basis to apply for cancellation of the petitioner's bail---Accused was admitted to pre-arrest bail accordingly.

Shahzada Mazhar, Advocate Supreme Court with Petitioner in person for Petitioner.

Asjad Javaid Ghural, Additional Prosecutor-General, Punjab for the State.

Umar Riaz, Advocate Supreme Court, Mrs. Tasneem Amin, Advocate-on-record with Respondent No.2 in person.

Date of hearing: 4th February, 2016.

ORDER

ASIF SAEED KHAN KHOSA, J.---Through this petition Muhammad Asif petitioner has sought leave to appeal against the order dated 04.12.2015 passed by a learned Judge-in-Chamber of the Lahore High Court, Lahore in Criminal Miscellaneous No. 15427-B of 2015 whereby pre-arrest bail was refused to him in case FIR No. 01, registered at Police Station Intelligence and Investigation, Inland Revenue, Lahore on 20.10.2014 in respect of offences under sections 33(5), 33(8), 33(11-C), 33(12), 33(13) and 33(16) read with section 2(37) of the Sales Tax Act, 1990.

2.After hearing the learned counsel for the parties and going through the record we have observed that the petitioner is a Director of a business concern and the allegation against him and his co-accused is that the record recovered from the petitioner's business premises disclosed huge discrepancies pointing towards a willful and deliberate evasion of the sales tax. It is not disputed that the order-in-original passed by the Deputy Commissioner, Inland Revenue, Lahore on 17.09.2014 fixing a liability upon the petitioner was partially set aside by the Commissioner, Inland Revenue, Lahore on 04.12.2014 and thereafter the said order-in-original was completely set aside by the Appellate Tribunal, Inland Revenue, Lahore on 31.08.2015. We have been informed that a Reference has already been filed before the Lahore High Court, Lahore in that connection and the said Reference is presently pending with no interim relief in favour of the Department. The present FIR was based upon a permission granted and a direction issued by the Director-General, Intelligence and Investigation, Inland Revenue, Islamabad which in turn was based upon the liability of the petitioner determined by the Department but if the said determination of the liability itself has been set aside then the foundation of the present criminal case appears to be shaken at present and in the absence of any determined or established liability of the petitioner insistence by the investigating agency upon arrest of the petitioner may smack of lack of bona fide on its part. Apart from that the allegations leveled against the petitioner surely require explanation of the record of the petitioner's business concern and the petitioner is likely to be handicapped in his defence if he is taken into custody. It goes without saying that even if the petitioner is admitted to bail by this Court he still has to keep on joining the investigation if and when required to do so by the investigating agency and if he fails to join the investigation then that may be considered to be a valid ground for seeking cancellation of the petitioner's bail. It may also be clarified that if the above mentioned Reference presently pending before the Lahore High Court, Lahore is decided in favour of the Department and if the petitioner's liability is determined on the basis of the answer to the Reference even then the Department concerned may have a basis to apply for cancellation of the petitioner's bail.

3.For what has been discussed above this petition is converted into an appeal and the same is allowed and, consequently, Muhammad Asif petitioner is admitted to pre-arrest bail in the above mentioned criminal case subject to furnishing bail bond in the sum of Rs.5,000,000/- (Rupees five million only) with one surety in the like amount to the satisfaction of the trial court within a period of two weeks from today.

MWA/M-35/SCBail granted.