2022 PLP 20 (YLRN)

FAHIM AHMED SIDDIQUI, J.

The applicant is involved in a case originated by lodging FIR No. 04/2019 {File No. SI/Misc./59/2019- AlB(AW)} at PS Appraising Intelligence Branch, Custom House, Karachi under sections 16, 32(i), 32-A(I)(a) and 192 read with sections 3, 6 and 36 Sales Tax Act, 1990 and section 148 of the Income Tax Ordinance, subsection (1) of section 3 of Imports and Exports (Control) Act, 1950 read with Appendix-E of Import Policy Order, 2016 as well as penal Clauses 9, 14, 14-A, 77, 86 and 89 of section 156(i) of the Customs Act, 1969 and sections 33 and 34 of the Sales Tax Act and section 148 of the Income Tax Ordinance. He was arrested in the said case, and now through the instant application, he is seeking his release on bail during trial.

2. The learned counsel for the applicant as well as the learned Special Prosecutor, Customs and A.P.G. argued at length. In the light of their arguments and citations, I have observed as under: a) Concisely, the allegations against the applicant are that by the Import Policy, the overseas Pakistanis are required to present a Proceed Realisation Certificate (PRC) for availing the import of used vehicles as personal baggage under transfer of residence scheme. Under the said scheme, a used vehicle Toyota Paso was claimed to be imported by one Pakistani namely Moumin Khan. Accordingly, a PRC No. 2019042304041521 dated 23.04.2019 purportedly issued by HBL, Kashmir Road, Rawalpindi issued in his name bearing his A/C No. 12367900250901. The said PRC was showing the remittance amount to SR 22,640/- equal to Rs. 8,49,000/- for clearance of the aforementioned old vehicle. However, the said PRC was found a fake after verification and the same was placed for clearance of the vehicle by the clearing agent Shaharyar Ahmed of Messrs CGA Logistic, Karachi as such he is instrumental in the entire rip-off for illegal importing the said vehicle with intention to cause loss to exchequer. b) It has been admitted within the body of the FIR that the applicant is not the main culprit of the alleged offence but in fact he is only instrumental in the same, as such it requires further investigation whether the applicant has a conscious knowledge that the PRC placed by him is a fake document. c) It is also an admitted position that the applicant is a clearing agent working for CGA Logistic. The learned counsel for the applicant has drawn attention towards a letter written by Messrs CGA Logistic (page # 77) for verification of the PRC dated 27.04.2019 i.e. much prior to lodgement of the present case. d) Applicant being a clearing agent, cannot seek verification of PRC himself, as such a letter was written by or on behalf of him to the Customs Authorities for verification of the said document. e) A presumption can be taken that on such request of the applicant's firm, the enquiry regarding the PRC was carried out, as such mens rea is missing on the part of the applicant in this case. f) The vehicle so imported is still available with the Customs Authorities, as such no loss to the exchequer has caused and at the most it can be said that the vehicle is illegally imported, hence the same may be treated as per provision of law in such cases.

3. In view of the above observations, I am of the considered opinion that a case of bail has been made out. Hence, the applicant is admitted to bail subject to furnishing a solvent surety of Rs. 1.00,000/- (One Hundred Thousand) only and P.R. bond in the like amount up to the entire satisfaction of the trial Court through a short order dated 11.07.2019 and these are the reasons for the same.

4. Before parting, I would like to make it clear that if the applicant after confirmation of pre-arrest bail will not appear before the trial Court and the trial Court is satisfied that the applicant becomes absconder and fugitive to law, then the trial Court is fully competent to take every action against the applicant and his surety including cancellation of bail without making a reference to this Court.

5. I would like to make it clear that the above observations are purely tentative in nature, and the same are done for disposal of instant bail application and would have no bearing on either party's case during trial. ADN/S-137/Sindh Bail granted.