1997 PLP 1394 (MLD)

The learned D.A.-G. agreed to this proposition but he contended that there were no such circumstances on account of which this Court could exercise its powers to grant bail directly to the present applicant. This contention of the learned D.A.-G. was ascertainable and therefore, by keeping in view the anxiety of F.I.A. shows through the learned D.A.-G., I considered it necessary to determine whether there were circumstances on account of which interim bail be confirmed or the same be refused with direction to the applicant to approach the trial Court.

5. The I.O. of the case, in reply to several questions put by the Court, disclosed that: (i) Final charge-sheet had not been submitted in this case till date although more than three months were consumed under the garb of investigation. (ii) First F.I.R. in the case bearing No. S/Misc. 872/94-AIB was lodged on 1-1-1995 by one Mr. Muhammad Tufail A. O. (A. I. B). (iii) 2nd F.I.R. was lodged by the F.I.A. after the case was transferred to A.D.G. F.I.R. vide letter, dated 4-5-1P

95. The second F.I.R. is merely a reproduction of the F.I.R. dated 1-1-1995. (iv) Nothing has been brought on record to show what had happened during the expired period of about 4 months which started from 1-1-1995 when first F.I.R. was lodged and ended on 4-5-1995 when case was transferred to the F.I.A. (v) The F.I.A. failed to disclose whether any enquiry was held or not by anyone during that period of four months? and if any enquiry was held, then what was its result? However it cannot be presumed that no enquiry or investigation was held during that period. Therefore it can be believed that the present applicant might have been exonerated in that inquiry from the charges, if any, levelled against him. He was not treated by the C.B.R. on the same footing as the co-?accused namely Wali Khan was treated. Besides the above disclosure, the I.O. of this case, in reply to a question, stated that final charge-sheet in this case could not be submitted because several persons had not been arrested and moreover applicant Dr. Arsalan as well as co-accused Wali Khan had not joined the investigation although notices were served upon them. If they had joined the investigation, the final charge-sheet could be submitted within shortest possible time without arresting them. In the light of this stand the applicant was, ordered to join the investigation and the matter was adjourned. The applicant was investigated for three days in the police station by the F.I.A. and then he was allowed to go.

6. On 7-9-1995, when this matter was again tabled for hearing, the F.I.A. Authorities disclosed that they had completed the investigation and the applicant was no more required for further investigation. Several other factors were also brought into light to decide the question whether circumstances existed or not to confirm the interim bail granted to the applicant. The following factors are worth-mentioning to decide the said questions: (i) One Mushtaq Ahmed, examining officer, to whom bail was granted by the trial Court gave a statement before the F.I.A. which was found contradictory from his previous statement recorded on 22-12-1994. According to his statement he had accompanied the Clearing and Forwarding Agent to check the containers on the direction of the present applicant. Containers could not be checked and he informed Dr. Arsalan that the clearing agent had refused to get the containers checked. (ii) The smuggled goods were released after receiving instructions from Mr. Wali Khan, Collector of Customs who informed that these containers contained the classified nature of goods.? (iii) One Mr. Amjad Shah, S.P.O., D.E.C. examined Waseem Sharif who disclosed that bills of entries were passed on to Dr. Arsalan for completion. It is notable that this Waseem Sharif has been shown as absconder in the final charge-sheet. I need not to comment upon this point of investigation regarding the statement of absconders against another person and his abscondence after he was examined by the said Amjad Shah. (iv) Dr. Arsalan had given illegal orders to release the goods but the said orders were not complied with. It is thus admitted position that offence had not been committed if it is believed that the applicant had given illegal orders. Even otherwise these orders are stated to be verbal orders which evidence can be termed as "hearsay" evidence. (v) Wali Khan, the then Collector of Customs (Appraisement Collectorate) had directed to release the goods. The said order was complied with. (vi) D.C. (Preventive) and A.C. (Preventive) had informed Wali Khan about the forged document but he ordered to release the goods by saying that they were classified goods. Hence they had no option but to release the goods. Thus it is evident that offence was committed under the orders of Wali Khan. Although, at this stage, the record of case is silent about any other role of the present applicant yet the I.O. stated in the charge-sheet, still to be submitted before the trial Court that Wali Khan and Dr. Arsalan Subugutgeen, had played the vital role in the clearance of 11 containers. Thus I asked the I.O. how he could say so that the role of the applicant was similar to that of Wali Khan? The reply of the I.O. was that applicant was working under Wali Khan and he had attempted to get the containers released under the instructions of Wali Khan. May be so but admittedly there is no convincing evidence except hearsay evidence and even if it is believed that the applicant had done so, he had obeyed the orders of his senior only to the extent of conveying the said message. Whether such an act can be treated an attempt to commit an offence? It needs not to be commented upon at this stage because it can either damage the case of prosecution or the applicant.

7. By keeping in view all these factors, the question before this Court can be easily answered on the basis of following realities: (i) If the applicant did not appear to have been found guilty by the authorities of Customs Intelligence before the case was transferred to F.I.A. then there must be strong evidence to establish the contrary findings. (ii) No specific role has been assigned to the applicant in the commission of this offence except verbal evidence that he has attempted to get the goods released by giving verbal illegal orders but admittedly these orders were not complied with. Hence the effects of giving illegal orders which were totally ineffective, have still to be judged particularly when this role has been based upon the statement of an accused who is absconder. Why he was not arrested? when his statement was recorded? The investigation is silent on these points. (iii) If he had conveyed any message of his senior he had not committed any crime unless he is proved to be in collusion with Wali Khan in commission of this offence. No strong or even weak evidence is on record to prove that offence was committed on account of his co?operation with Wali Khan. (iv) The whole case revolves around Wali Khan because commission of offence was attributed to be the outcome of his orders, no matter the charges levelled against Wali Khan are true or not as I need not to touch his case, but it can be said with certainty that charges against the present applicant cannot be proved unless some evidence is brought on record during proceedings before the trial Court. When those proceedings shall start? No one knows the reply of this question because the charge-sheet in this case has not been submitted, admittedly, till date. (v) If the F.I.A. could not submit the final charge-sheet because the applicant had not joined the investigation then the said plea has also lost its importance because the applicant joined investigation and was investigated thoroughly for three days in the police station by the Investigating Authorities. The outcome of that investigation has not added anything more to the inquiry already done and completed. (vi) Another ground, although not too weighty to be relied upon as the sole ground yet not to be termed as weightless, is that the applicant came from Faisalabad which is situated several hundred miles from Karachi. He reached the trial Court to get bail before arrest but after apprehending that he may be arrested on account of presence of F.I.A. officials in the trial Court, he immediately approached this Court because there was no other alternative for him except to pray this Court to invoke its jurisdiction to save his respect. The Courts have to prove to be the Courts of justice and not the Courts of prosecution or persecution. The facts narrated by the applicant were more than enough to grant him interim bail till such time the same are controverted by the prosecution. If the prosecution proves that facts narrated by any accused were based on falsehood, then the Courts must recall the order of granting interim bail. Contrary to that, if the facts stated by any applicant for grant of interim bail are found to be the same as stated by the prosecution and the matter appears to be falling within the ambit of further inquiry then bail becomes a right of an applicant under section 497(2), Cr.P.C. no matter the applicant is in custody or free. In spite of all these factors, I would have preferred to grant protective bail to the applicant provided the trial Court had refused to grant bail to co?-accused Mushtaq Ahmed and provided further that the case of present applicant had not been on better footing. In these circumstances, granting protective bail to the applicant as suggested by the learned D.A.-G. instead of confirming the interim bail shall amount to burden the applicant with undue worries particularly when he is neither a previous convict nor alleged to be a criminal. He is to be treated a responsible officer of the C.B.R. no matter he has been nominated as an accused in this case. To be an accused does not mean to be a criminal. Therefore, the collective result of all these factors puts the case of applicant as an exception which justifies this Court to exercise its power to grant interim bail instead of granting him protective bail. These were the reasons on account of which interim bail granted to the applicant on 24-8-1995 was confirmed on 7-9-1995. N.H.Q./1586/K?????????????????????????????????? ??????? ??????????????????????????? Interim bail confirmed.