P L D 2007 Karachi 325 (PLP)

ALI SAIN DINO METLO, J.

Heard Messrs. Kamal Azfar, learned counsel for the applicant and Mehmood Alam Rizvi, Standing Counsel. The latter opposes bail mainly on the ground that the amount involved in the case is big.

2. The case of the prosecution, in brief, is that during the period from March 2006 to August, 2006, the applicant exported 48 consignments of `mixtures of odoriferous substances' involving duty drawback at the rate of Rs.96.59 per kilogram under S.R.O.787(I)/2005, dated 6th August, 2005. Claims regarding 36 consignments total amount to Rs.16,192,865 were sanctioned and paid to him, while claims regarding 12 consignments were pending. According to the prosecution, the goods exported were of substandard quality. This had been assumed mainly on the basis of the value declared, which was US $4.00 to 8.00 per kilogram. According to the prosecution, such value could be only of a substandard quality.

3. The other grounds for assuming sub-standard quality of the exported goods are that liquids found in four barrels available in applicants factory lacked necessary ingredients and that the applicant had failed to provide sufficient documentary evidence regarding procurement of goods of standard quality. In this regard, it may be mentioned that the goods in the factory, which lacked some necessary ingredients, were not in the form of finished product and the rules did not oblige the exporter to produce proof about procurement of the exported goods. It is not the case of prosecution that the goods were not exported.

4. Neither the reports of the Examining Officers suggested substandard quality, nor representative samples were available to determine the standard and quality of the exported goods and nor any complaint regarding quality was received by customs from any foreign importer. It is also not the case of prosecution that any officer of customs examining the consignments or sanctioning the claims was in collusion with the applicant. Indeed, none from customs has been arraigned.

5. There is also no force in the contention of the learned Standing Counsel that prior to his arrest the applicant had himself made confession before the Investigating Officer regarding exporting goods of sub-standard quality, as according to Article 38 of Qanun-e-Shahadat, 1984 such confession is inadmissible.

6. The S.R.O. entitling the applicant to claim duty drawback does not specify the ratio of the ingredients. The rate is quantity-wise and not value-wise and therefore, the value is not directly relevant for the purpose of determining the amount of duty drawback. Thus, any mis declaration about the value of the goods will have no direct bearing upon applicant's claims of duty drawback.

7. The learned Standing Counsel referred to a formula on the basis of which the rate of duty drawback was determined by the Central Board of Revenue, but conceded that it was not made public and was not notified and the S.R.O. did not prescribe any formula about the percentage of ingredients. Moreover, as mentioned above, there is no direct evidence about the ratio of ingredients contained in the exported goods so as to say that they were not of standard quality.

8. In view of the above mentioned facts and circumstances of the case, it is clear that the Investigating Agency has failed to collect sufficient evidence to establish reasonable grounds for believing the applicant guilty of the offence and the matter requires only further inquiry as contemplated by subsection (2) of section 497 of the Code of Criminal Procedure, 1898, and the applicant is entitled to bail. To a query as to how much amount, according to the prosecution, has been overdrawn by the applicant, the learned Standing Counsel, after consulting the Investigating Officer, replied that it was approximately rupees ten million. The applicant is, therefore, directed to be released on bail on furnishing one surety solvent in the sum of rupees ten million and personal bond in the like amount to the satisfaction of the trial Court. N.H.Q./M-39/K Bail allowed.