2003 PLP 2734 (YLR)

Khawaja Sharful Islam for Applicant. Mahmood Alam Rizvi, Standing Counsel. Date of hearing: 22nd April, 2003. Applicant is booked for an offence under section 156(1)(14)(82) read with section 32 of the Customs Act, 1969. Briefly stated the prosecution case is that Messrs S. Noor & Company, North Napier Road, Karachi owned by Fazal Elahi imported 40 bales of "Rugs and Second hand clothing" imported from Unic International Trade, P.O. Box No.77211, Los Angeles C.A., U.S.A. He did not get the consignment cleared for the reason that freight was to be paid by exporter as per the terms of the agreement. The consignment was auctioned on 30-10-1999 to Messrs Allah Diwaya of Shershah, Kabari. Bazar, Karachi and the bid struck at Rs.2,38,

000. It was accepted and Custom Authorities realised its leviable duties and taxes to the tune of Rs.1,44,500 and the remaining amount was to be paid to Messrs Noor & Company. During investigation it revealed that remaining amount of Rs.93,427 was, released to the claimant through a cross cheque which was delivered to one Shakil who was a fake person, at the instructions of accused Shahid Sabzwari (Treasury Officer). The said amount was credited in the account of Naushad Ali. The investigation further revealed that appellant Shahid Sabzwari in connivance with Customs Staff got the aforesaid cheque encashed. The F.I.R. was registered and accused was arrested. After investigation, interim challan has been filed in the Court of Special Judge (Customs and Taxation), Karachi. It is submitted by the learned counsel that the allegations to the effect that Treasury Officer encashed the cheque credited in the account of Naushad Ali is not substantiated by any evidence. Accused Naushad Ali is still absconding who is beneficiary in the case. The applicant is no more required to police. The offence with which the applicant has been charged is punishable for three years imprisonment. Nothing incriminating has been recovered by the police to connect the applicant with the commission of crime. Reliance is placed upon the cases of Saeed Ahmad v. The State 1995 SCMR 170, Tariq Bashir and 5 others v. The State PLD 1995 SC 34, Sikandar A. Karim v. The State 1995 SCMR 387, Ch. Muhammad Aslam v. The State 1992 MLD 880, Noorul and others v. The State 1976 SCMR

190. Mr. Mahmood Alam Rizvi learned Standing Counsel has argued that section 3:2 of Customs Act is not applicable. He opposed the bail plea but argued that case of applicant does not fall under the prohibitory clause of section 497(1), Cr.P.C. The record shows that applicant Syed Shahid Ali Sabzwari was Treasury Officer. He had not signed any document for auctioning the goods. No evidence is collected by the police which could show that he opened account in the bank. Accused Naushad who eras beneficiary is still absconding. The relevant record has been taken in possession by the police. Ingredients of section 32 of Customs Act have not been attracted as no such allegations have been levelled against the applicant that he made any false or untrue statement before Custom Officers. The remaining sections are not covered by prohibition contained in section 497(1), Cr.P.C. The offence with which the accused has been charged is punishable for three years' imprisonment. He is granted bail in the sum of Rs.1,00,000 (Rupees one lac only) and P.R. bond in the like amount to the satisfaction of the trial Court. N.H.Q./S-311/K Bail allowed.