1998 P Cr (PLP)

I had heard this application on 14‑7‑1997 and by a short order granted bail to the applicant in the sum of.Rs.1,00,000 with P.R. Bond in the like amount to the satisfaction of the trial Court. The detailed reasons of the said order are being recorded now asunder: The Prince Glass and Mirror Industries (Pvt.) Ltd. had imported a consignment of float glass, which was meant to be stored in their warehouse known as the Bonded Warehouse No.6‑96 (Pvt.) at Gadoon Amazai. An information was received by the Appraising Intelligence Branch of the Collectorate of the Customs, Karachi that the said glass was ‑fraudulently sold by the said firm in the open market. Thus, an enquiry was held which revealed that Messrs Prince Mirror Glass Industries after receiving the three consignments of Clear and Bronze Float Glass, filed the Bills of Entry through their clearing agent Messrs Ghausia Impex; under safe transportation system for removal of goods from Karachi Port to their Private Warehouse at Gadoon Amazai. The transportation was allowed under Custom Rule on 16‑4‑1997 and 6‑5‑1997. According to the enquiry the goods instead of being despatched to the Bonded Warehouse at Gadoon Amazai were despatched to various dealers to Lahore, Multan and other places under instruction of the Clearing Agent and the papers were prepared for despatch and for transport to the glass houses at Lahore and Multan, with intention to avoid payment of customs duty and. other taxes. Accordingly F.I.R was registered15‑5‑1997 at Custom House, Karachi by Customs Act, 1969 which offences are punishable under clauses 10‑A and 14 and also under section 156(1) of the Customs Act. An interim challan was submitted before the trial Court on 30‑5‑1997. The applicant surrendered before the trial Court and filed a plea for bail before arrest, which was dismissed on 25‑6‑1997 and he was arrested on 7‑7‑1997. After having failed to obtain bail from the trial Court filed this application. It was contended that the challan would clearly show that Zia Khan accused was Manager of Kohinoor Glass Corporation, Lahore, while Amir Zia was connected with Messrs Prince Mirror Glass Industries (Pvt.) Limited: The only allegation against the applicant could be that he had purchased the float glass on which no duty was paid. The applicant semis' to be a purchaser of float glass from the open market and, as pointed out such glass was not specified in clause 8 and not notified as such no offence under the circumstances was made out under section 156 of the Customs Act. It is yet to be determined if section 32, which ha been invoked, ‑is applicable and it is also contended that section 10(a) provides for punishment for two years hence the case does not fall within the prohibitory clause of section 497, Cr.P.C. Above all, the case is of a mistaken identification and the applicant whose name is Ziaullah Khan has been roped in place of Zia Khan the Proprietor of Kohinoor Glass Corporation, Lahore. In support of her contentions the learned counsel has relied upon the following authorities viz.: (1) PLD 1986 Pesh. 186, (2) 1995 SCMRI387 and (3) 1996 SCMR 1132. It is contended that in view of these authorities the applicant is entitled to the grant of bail, which may be granted to him. The learned Deputy Attorney‑General opposed the grant of bail on the ground that even if it is a case of mistaken identification, and that the father's name of Ziaullah applicant is not mentioned anywhere yet he was not entitled to the grant of bail. Even if he is a bona fide purchaser it is for him to establish this fact during the trial. His application may be rejected. I have carefully considered the contention made at the Bar and also the record and so also gone through the authorities referred herein. The names of the accused in the F.I.R. seem to be Zia Khan and Amir Zia but surprising enough that before filing the case an enquiry was held yet the full details of these accused could not be ascertained. There is nothing to show if the applicant was Zia Khan or Amir Zia. Both of them are proprietors of the firms hence their full particulars would be available on the official record yet the name of the accused Zia Khan was not verified nor mentioned in. the challan. The name of the applicant Ziaullah does not find place anywhere either in the F.I.R. or in 'the challan. Thus, it is a case of mistaken identification. The prosecution is supposed to send up a proper‑person to face the trial and not a person whose identity is not established. The applicant even if is Zia Khan he does not seem to have any connection with Messrs Prince Mirror Glass Industries (Pvt.) Ltd. According to the challan he is proprietor of Kohinoor Glass Corporation, who is the purchaser of Glass from the market. There is nothing with the prosecution to show that it was a restricted item and liable to duty. It is freely available in the market. It is a 1 settled law that where the goods were on free list of import and importable not being banned or prohibited items and purchased from open market after satisfying himself of lawful import thereof, the burden of proof would shift to the prosecution to prove that no duty was paid for import of said item. This has been held in Muhammad Zubair v. Government of Pakistan and 2 others reported in PLD 1986 Pesh.

186. The applicant, as already mentioned, as a purchaser of the glass from open market could not be dragged into the case on the ground that he has purchased the glass on which no duty was paid, although it was freely available in the market. The offence under clause 14 of section 156(1) of the Customs Act does not fall within the prohibitory clause of section 497, Cr.P.C. as the offence would be punishable with three years or a fine which may extend to Rs.25,000 (rupees twenty‑five thousand) or three times the value of the good in respect of which the offence is committed. Reliance has rightly been placed on Sikandar Khan v. State 1995 SCMR

387. It appears that the entire case of the prosecution depended upon documents which were in possession of the customs authorities and the applicant cannot temper with these hence the apprehension of tampering with prosecution evidence was not possible, as held in the case of Saeed Ahmad v. State reported in 1996 SCMR 1132. It is also a settled law that bail cannot be withheld as punishment. The applicant had thus, succeeded in making out a prima facie case for the grant of bail as the case against the applicant required further inquiry hence he is entitled to the grant of bail. H.B.T./Z‑28/K Bail granted.