1996 PCr (PLP)

(8) Case of Collector of Customs (Preventive) v. Muhammad Mahfooz PLD 1991 SC 630: In this matter the Honourable Supreme Court has granted leave to appeal to examine the scope and powers of Customs Authorities under section 163, Customs Act, 1969 and on the point of interpretation of various Notifications issued by Board of Revenue under section 3, Customs Act, 1969. (9) Case of Abdul Hay-uz-Zafar v. The State 1983 PCr.LJ2010: In this authority the Honourable Judge has held as under:-- "I have considered the arguments of the learned counsel for both the parties and find that the amount involved is of course sufficiently large and this fact by itself would be no ground for refusing bail particularly when the investigation is complete, except that the report of the handwriting expert is awaited. There is some force in the contention of the learned counsel that the proposed evidence to be adduced at the trial comprised documentary evidence and tampering with the same is not possible. As far as the question of prohibition contained in subsection (1) of section 497 is concerned, a Court is not supposed to keep in view only the maximum sentence provided under relevant law rather it is to be seen what punishment is likely to be awarded ultimately to an accused in particular circumstances of the case. To grant the bail is rule and to refuse is an exception. " (10) Case of Saeed Ahmed v. The State 1995 SCMR 170: In this authority D.B. of the Honourable Supreme Court has observed as follows:- "The learned counsel for the petitioner contended that there is no prohibition for grant of bail in respect of offences mentioned above, but with mala fide intention subsequently offence under section 409, P.P.C. has also been added in order to bring the petitioner's case within the prohibitory clause of section 497, Cr.P.C. The case entirely depends upon documentary evidence which seems to be in possession of the prosecution and challan has already been submitted. The objection of the learned counsel regarding addition of section 409, P.P.C. may carry some weight while considering the bail application. As there is no possibility of tampering with the evidence, which is entirely documentary in nature and in possession of the prosecution, in the circumstances, we convert the petition into appeal and allow it, and grant bail to the petitioner. " Case of Sikandar A. Karim v. The State 1995 SCMR 387: The D.B. of the Honourable Supreme Court consisting of Mr. Justice Saiduzzaman Siddiqui and Mr. Justice Mukhtar Ahmad Junejo, has held as under:-- "Section 32 of the Act provides that if a person in connection with any matter of customs makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs -any declaration, notice, certificate or other document or makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer, knowing or having reason to believe that such document or statement is false in any material particular, he shall be guilty of an offence under this section. The punishment for making false declaration under section 32 ibid is provided under section 1560), (14) of the Act which reads as follows:--

14. If any person commits an offence under section 32.

Such person shall be liable to penalty not exceeding twenty-five thousand rupees or three times the value of the goods in respect of which such offence is committed; whichever be greater; and such goods shall also be liable to confiscation; and upon conviction by a Special Judge, he shall further be liable to imprisonment for a term not exceeding three years, or to fine, or to both'. " It is quite clear from reading of the above provisions that upon conviction of an accused by a Special Judge for-an' offence under section 32 of the Act, the maximum punishment to be awarded is only three years or fine or both in addition to a penalty which may extend to rupees twenty-five thousand or three times the value of the goods in respect of which the offence is committed whichever is greater. It is, therefore, quite clear that offence under clause 14 of section 156 of the Act does not fall within the prohibitory clause of section 497, Cr.P.C." The Honourable Supreme Court in this very authority has observed as follows:-- "If the items alleged to be smuggled by the prosecution were available freely in the open market and imports of such goods were not banned in the country, a presumption may arise that these goods were lawfully brought in the country unless contrary is shown." Learned counsel for the applicants have also cited-unreported cases (i) (Special Criminal Bail Application No.87 of 1988), decided by his Lordship Mr. Justice Saiduzzaman Siddiqui, who has observed as follows:-- "There appears prima facie, violation of section 161 of the Customs Act as well as section 167 of the Cr.P.C. in this case and therefore, I am inclined to admit these accused persons to interim bail without going into merits of the bail application although this is opposed by the learned D. A.-G." (ii) Special Criminal Bail Applications Nos.86 of 1988 and 87 of 1988, decided by his Lordship Mr. Justice Qaiser Ahmed Hamidi, brief facts of the case are as follows:-- "The staff of the Directorate General Intelligence and Investigation (Customs and Excise), Karachi, received a credible information that the local market of electronic and general merchandise was being fed with the banned/ contraband goods through diplomatic bond in the name and style of Ocean-Trade situate at Taj Mahal Hotel. On 25-6-1988, during surveillance it was noticed that sealed lock of the bonded warehouse was opened in a absence of Customs Officer with a duplicate key. The persons namely Irshad and Sohail, who were supervising the loading of foreign goods in two pick-ups were asked to produce clearance documents relating to the said goods, which they could not produce. Consequently the registers of the bonded warehouse were taken into possession. The physical verification of the warehouse and scrutiny of documents revealed that large quantity of deposited goods had been fraudulently removed from the bonded warehouse, thereby causing loss to Government to the tune of Rs.83,47,910 in customs duty and taxes. On 20-7-1988, the F.I.R. in this case was registered. During the course of investigation applicant Irshad, Incharge, Shahid Hussain, Trainee Clerk and Shakeel Ahmed, Licensee of the bonded warehouse were taken into custody and after usual investigation were sent up before the Special Judge (Customs and Taxation), Karachi, to stand trial for the offence under section 1560) (8)(59)(77)(82) and (89) of the Customs Act, 1969. " The learned Judge after hearing the parties has observed as under:-- "The basic question which must be present in the mind of the Court, while considering the question of bail, is whether the grant of bail is necessary in the interest of justice. The general policy of law is to allow bail rather than refuse it." (iii) Special Criminal Bail No. 59 of 1986, decided by His Lordship Mr. Justice Nasir Aslam Zahid. Brief facts of the case are as under:-- "Case of the prosecution against the applicants is that they imported staple fibre (man-made) and other goods, which were kept in the bonded warehouse at the Karachi Port and the same could not have been cleared without payment of customs duty and taxes but by forged, fake and fabricated documents, the applicants got the goods cleared and in this way duty and taxes amounting to over Rs.2 crores were evaded. The offence is alleged to have been committed in 1984-85. The F.I.R. was lodged on 19-6-1987, whereafter the three applicants were arrested. Challan dated 3-7-1986 was presented by the prosecution before the learned Special Judge." The learned Judge after hearing the parties observed as follows:-- "In view of the reasons hereinabove, I am of the view that this is a case for further enquiry and as such all the three applicants/ accused are entitled to the concession of bail. It was pointed out by Mr. A. Sattar, learned counsel for the State that the amount involved is very huge. This by itself is no ground for denying the concession of bail as has been held by the Supreme Court in 1978 SCMR

64. It was further submitted by Mr. A. Sattar that in case the applicants are released on bail they are likely to tamper with the evidence and witnesses. This is also no ground for denying the concession of bail to the applicants where otherwise they have made out a case for grant of bail. "

14. Admittedly the F.I.R. is delayed by more than 13 months and there is no direct evidence against the accused/applicant. The case of the prosecution is based on the documents which are collected by the prosecution during investigation and genuineness and correctness of the same is to be established by the prosecution at the trial after the evidence is recorded by the learned trial Court. It would be pertinent to point out that notice under section 168 of the Customs Act, 1969, dated 11-7-1994 issue by the Investigating Officer contains the same figure of video magnetic tape "A" grade, 12.65 mm width in packes of 16.280 feet length, 13,000 pancakes packing: Secure and seaworthy export packing, which is mentioned in Packing List, showing number and date of Invoice M9405-1-017-01 May, 17, 1994 and number of L.C. 182-LC942764 April 28, 1994, which is one and same, Likewise other documents, filed by the applicants, which are referred in the earlier part of this order, the Packing List can also be considered and adjudicated by the trial Court after the evidence is recorded.

15. The learned D.A.-G. has contended that Special Criminal Bail Applications Nos.60, 71, 56 and 63 of 1995 which were filed on behalf of the accused/applicants were rejected by this Court. Relevant portions of the orders dated 23-8-1995, 5-10-1995, 7-8-1995 and 16-1-1995 are reproduced as follows:-- "23-8-1995 Mrs. Ismat Mehdi for the applicant. Mr. Ikram Ahmed Ansari, D.A.-G. The learned counsel withdraws this application. She would be at liberty to file application after final challan is submitted which may be submitted within 2 to 3 weeks." "5-10-1995 Mr. Ikram Ahmed Ansari, the learned D.A.-G. had appeared in the previous bail application and therefore, he was fully aware about the facts and legal aspects of this case. He suggested that the matter be adjourned to some other date. However, I do not see any need for the same. Hence the bail application is dismissed. May I expect that such applications would not be repeated in future?" "7-8-1995 In the light of reasons enumerated above, I do not consider it to be a fit case to grant bail to the present applicants, as such the bail application is dismissed. However, learned counsel for the applicants would be at liberty to move fresh bail application if the applicants can produce the documents to satisfy the Court that these documents relate to these 11 containers and that the documents were genuine without any reasonable doubt. The prosecution is required to submit challan as soon as possible. The Investigating Officer of this case states that he can submit the final challan within two weeks if Razzak Baba, who has been granted interim bail, in connected Special Criminal. Bail Application No.59 of 1995 joins the investigation." "16-1-1996 Mr. Muhammad Saleem for the applicant. Mr. Muhammad Roshan Essani for the State. The learned counsel withdraws the application, provided some document is given to the prosecution. The prosecution is required to submit the challan as soon as possible. The learned counsel is at liberty to move fresh bail application after the challan is submitted before the trial Court. Application stands disposed of." I would also like to reproduce the order of, the Honourable Supreme Court passed in Criminal Petition No.88-K of 1995, certified copy of which is produced in Special Criminal Bail No.56 of 1995, filed in this Court, which is as under:

"Khawaja Naveed Ahmed, A.S.C., the learned counsel for the petitioners does not wish to press the petition as according to the learned D.A.-G. final challan has been submitted in this case on 2-11-1995. Accordingly, the petition is dismissed as withdrawn."

16. The bail applications submitted on behalf of the accused/applicants, referred hereinabove, were either withdrawn or dismissed at the stage the case was not finally challaned by the prosecution. According to the learned D.A.-G. the case -is finally challaned by the prosecution before the learned Special Judge, Customs and Taxation, Karachi and the learned D.A.-G. has admitted that co accused Sardar Mahmood, Principal Appraiser, Custom House, Karachi is already on pre-arrest bail, granted by this Court on 29-1-1996, relevant portion of which is reproduced as follows:-- "Interim bail is granted till 31-1-1996 to the applicant namely Sardar Mahmood in F.I.R. No.265/DCI/95, dated 30-5-1995 in the sum of Rs.50,000 for P.R. bond in the sum of Rs.5,00,

000. Security already submitted previously in Bail Application No.78 of 1995 be treated as the surety in this case. However, the personal bond be given before the Nazir of this Court." Since then this co-accused, Sardar Mahmood is on bail and other Custom Officer, Muhammad Amin, Officiating Appraising Officer, who has been shown as absconder in the case, is also not apprehended by the prosecution so far. Learned D.A.-G. has admitted in Court that proceedings under sections 87 and 88 are not initiated against Muhammad Amin by the prosecution as yet though he is absconding. How and why a serving Custom Officer is absconding as yet? Prima facie it is clear that deliberately he is not being arrested by the prosecution.

17. Admittedly there is no recovery of alleged smuggled goods and the goods allegedly so smuggled are of common pattern, which are easily available in the open market and according to 1995 SCMR 387 "if the items alleged to be smuggled by the prosecution were freely available in the open market and imports of such goods were not banned in the country, presumption could arise that the goods in question were lawfully brought in the country unless contrary was shown".

18. The accused/applicants are in custody since around for 11 months. The case-law cited by the learned counsel for the applicants, referred hereinabove, is very much relevant. and applicable to the facts of the present case I, therefore, most respectfully follow the rules laid down in the authorities specially at S. Nos.4, 9, 10, 11 and unreported case (i) and (ii). From the perusal of record and the material discussed hereinabove, without discussing further the merits or demerits of the case, prima facie, I am of the opinion that keeping in view of the principles of requirement of consistency, as held by the Honourable Judge in 1979 SCMR p. 9, the accused/applicants are entitled to be released on bail as co accused Sardar Mahmood is already granted pre-arrest bail by a Bench of this Court on 19-1-1996.

19. The learned trial Court while rejecting bail application in Case No. 142 of 1995 has observed as under:-- "I, therefore, reject the bail application. However, they are at liberty to repeat the bail application but only after the case proceeds, as the heavy financial loss is alleged to have been caused to Government Exchequer in this case, at the hands of applicants in connivance with two Customs Officers (accused)." This observation of the learned trial Judge is hardly to be considered because one of the Customs Officer Sardar Mahmood, allegedly involved in this crime, is already on pre-arrest bail whereas Muhammad Amin, one of the co-accused is shown absconder, which means that he is not in custody. Moreover, I respectfully follow the observations of His Lordship Mr. Justice Nasir Aslam Zahid, made in Special Criminal Bail Application No.58 of 1986, in which case the accused/applicants were allowed bail though allegation against them was that the applicants got the goods cleared and in this way duty and taxes amounting to over Rs.2 crores were evaded.

20. It would be pertinent to refer the order of the Honourable Acting Chief Justice, dated 18-2-1996, passed in Criminal Miscellaneous Application No.12 of 1996, which is as follows:-- (1) It is inter alia contended that trial of the applicants is not warranted by law, inasmuch as neither the arresting officer was empowered to arrest the applicant, nor was the challan submitted by an authorised officer as envisaged by S.R.O.338(i)82, dated 22-4-1982, under section 3/4 of the Customs Act. The contention requires consideration. Admit. Notice. (2) None for D.A.-G. in spite of notice. Repeat notice to D.A.-G. Proceedings before the trial Court are stayed till next date."

21. From the perusal of the material placed by the parties in the case and the case-law cited by the learned counsel, which is also discussed hereinabove, Criminal Miscellaneous Application No.12 of 1996, moved on behalf of the applicants for quashment of the proceedings, was admitted by the Honourable Acting Chief Justice. Admittedly the accused are in custody since May, 1995 and their case has not proceeded as yet. Co-accused Sardar Mahmood is already on pre-arrest bail, granted by a learned Single Judge of this Court and Muhammad Amin, one of the co-accused is shown as absconder. Prima facie, case of the accused/applicants is that of further enquiry as contemplated under section 497, Cr.P.C. As such they are entitled to be released on bail. Each one of the accused/applicants is to be released on furnishing solvent surety in the sum of Rs.30,00,000 (Rupees Thirty lacs only) and P.R. bond in the like amount to the satisfaction of the Nazir of this Court or trial Court.

22. The observations made hereinabove are tentative in nature so far these bail applications are concerned. N. H. Q./R-11/K Bail allowed