1994 PLP 1032 (MLD)

In these bail applications applicant Abdul Majeed Askani who is Proprietor of Askani Clearing and Fowarding Agent at Gwadur is accused in F.I.R. No.32 of 1992 lodged by one Muhammad Saleem, Principal Appraiser Directorate of Inspection and Training (Customs Central Excise and Sales Tai), Karachi; on 24-2-1992 under section 32 of Customs Act, 1969 punishable under section 156(1) (14)(82). On the basis of initial F.I.R. No.10 (19) Dv-Inv Misc/91, separate final charge sheets were filed in the Court of Special Judge (Customs and Taxation), Karachi. Since all the bail applications arise out of the same F.I.R. initially registered on 24-2-1992 and the facts and grounds are also similar, the same are being disposed of by a single order. The facts as gathered from the F.I.R. are that a credible information was received by Muhammad Saleem the complainant, that 19 consignments comprising 499 bales of Polyester Jacquard Fabrics and one wooden case containing Glass Marbles were fraudulently exported to Dubai from Gwadur Port for the purpose and intent to obtain customs duty drawback coupled with import licence fee refund totalling to Rs.2,69,19,

321. Shipping documents were prepared, filed and processed by Abdul Majeed Askari, a Clearing Agent on behalf of Exporters M/s. Charly Enterprises. On preliminary investigation it was revealed that said fabrics were never exported, the shipping bills were false and the Customs Officers, namely, Inspector Khalid Aziz, Deputy Superintendent Ali Ahmed Balouch (applicant No.1), Superintendent Shahid Hussain (applicant No.2) and Assistant Collector Mumtaz Ali Changazi were actively involved in commission of this offence. On completion of shipping bills, the Exporter Haroon Rashid and his employees moved an application for export rebate and submitted the same before Collector of Customs, Quetta which was sanctioned, as a result of which M/s. Charly Enterprises received refund of customs duty to the tune of Rs.1,92,65,

477. This claim on enquiry was found to be based on bogus documents and the case was accordingly registered. The applicant who is a Clearing and Forwarding Agent is also alleged to have joined hands with the Exporter and the Customs Officers and thereby an aggregate amount of Rs.2,49,94,170 was paid to the Exporter as refund of Customs duty. On coming to know of the F.I.Rs. he filed an application for bail before arrest in the Court of Sessions Judge-cum-Special Judge Makran at Turbat where he and some of the co-accused were granted interim bail which was not confirmed. He then applied for bail before arrest before the Special Appellate Court of Balochistan at Quetta, which granted interim pie-arrest bail but it was not confirmed. However, protective bail was granted. Applicant alongwith others applied for bail before arrest before the Special Appellate Court of Sindh at Karachi and was granted protective pre-arrest bail for ten days. He therefore alongwith others filed applications for bail before arrest before the Special Judge (Customs and Taxation), Karachi and on 5-5-1992 he was granted interim pre-arrest bail which order was not confirmed and was recalled on 12-5-1992. Applicant and co-accused were taken into custody. Applicant then moved application for bail after arrest which was also rejected. In the meanwhile, co-accused Mumtaz Ali Changazi and Khalid Aziz filed bail applications before the Special Appellate Court of Sindh and by order dated 2-8-1992 my learned brother Shoukat Hussain Zubedi, J.;, was pleased to grant bail to said two accused. On the basis of the order of this Court dated 2-8-1992, applicant moved fresh bail application before the learned Special Judge (Customs and Taxation), Karachi but his application was rejected, on 7-9-1992 the applicant filed Special Criminal Bail Nos.58 of 1992 and 59 of 1992 before this Court but same were withdrawn along with applications of 3 others accused in view of the fact that five charge-sheets instead of two interim charge-sheets were filed in the Court of learned Special Judge (Customs and Taxation), Karachi. The applicant has therefore moved five separate bail applications before this Court. The contention of the learned Advocate for the applicant is that he was merely acting as Clearing and Forwarding Agent and his job was restricted only to the preparation of certain documents like shipping bills etc. on the basis of documents supplied by the Exporter and submitted before the concerned authorities. According to the learned Advocate the applicant performed his job strictly in accordance with rules and regulations and it was for the concerned Customs Authorities to scrutinise the documents and find out if any fraud or forgery was committed. It is also contended that this Court considered the bail applications of Customs Officers Mumtaz Ali Changazi and Khalid Aziz and granted them bail as the offence for which the said accused were charged fell under section 156(1)(82) of Customs Act, 1965 punishable to imprisonment for 3 years only. The applicant herein is also charged for the same offence and the rule of consistency would require that he is also enlarged on bail. The learned Advocate for the State has vehemently opposed the bail application. He has contended that huge amount of duty drawback was claimed by the Exporter which was paid to him with the connivance of Customs officials as well as the applicant who is a Clearing and Forwarding Agent. He has not disputed that the offence with which the applicant is charged is punishable with imprisonment for 3 years. Without entering into the merits of the case, it would be pertinent to refer that Assistant Collector of Customs Mumtaz Ali Changazi and Inspector of Customs Khalid Aziz were granted bail in Spl. Criminal Bails Nos.37 and 39 of 1992 by my learned brother Shoukat Hussain Zubedi, J. by order dated 2-8-1992. State filed petitions for leave to appeal before the Supreme Court of Pakistan being Nos.82-K to 85-K of 1992 challenging the grant of bail to said accused Mumtaz Ali Changazi and Khalid Aziz. Said petitions for leave to appeal came up for hearing before the Supreme Court and by order dated 4-11-19921eave to appeal was refused and order dated 2-8-1992 passed by my learned brother Shaukat Hussain Zubedi, J. was maintained. Admittedly, the charge against the applicant is also similar as the one against co-accused Mumtaz Ali Changazi and Khalid Aziz. The perusal of the record shows that applicant acting as a Clearing and Forwarding Agent for the Exporter filed the Shipping documents before the concerned authorities of the Customs Department but he does not seem to have derived any advantage out of the amount of duty draw back and sales tax paid to the Exporter. Be that as it may, the maximum punishment for the offence with which he is charged is 3 years. Following therefore the rule of consistency, I am inclined to grant bail to the applicant. He shall be released on bail on furnishing one surety in each bail . application in the sum of Rs.500,000 (Rupees five lacs) and P.R. bond in the like amount to the satisfaction of the trial Court. N.H.Q./A-1443/K Bail allowed.