1988 P Cr (PLP)

3. Thereafter, it is alleged that the present applicant while acting in collusion with Commodore (Rtd.) Syed Fazle‑e‑Rub, the then General Manager of the K.P.T. by passing the usual procedure and without referring the case to the concerned department for scrutiny deliberately violated the provisions of section 44 of the Karachi Port Trust Act, 1886 and after misguiding the members of the Board of Trustees of the K . P . T . in regard to the actual legal position got a resolution passed by the Board in favour of the consignee; thus obtaining illegal pecuniary gain for the consignee to the tune of Rupees 236 Million and causing corresponding wrongful loss to the Government, and thereby committed an offence punishable under section 5 (1) (d) of the Prevention of Corruption Act (II of 1947).

4. It may be pointed out that an application for pre‑arrest bail was filed by the applicant before the learned Special Judge (Central), Karachi who first granted interim‑bail to the applicant but later his application was dismissed vide order of his successor, dated 19‑7‑1987 and hence the present application. The applicant was granted interim‑bail by this Court on 22‑7‑1987 pending final disposal of this application.

5. Mr. Khalid M. Ishaque, learned counsel for the applicant, has vehemently argued that waiver of demurrage was allowed not by the applicant alone, but by the entire Board of Trustees of the K.P.T. and the usual practice and procedure was followed and the same cannot be questioned by the F.I.A. According to him, the case has been pending with the F.I.R for the last two or three years and needs further enquiry and consequently, it attracts the provision of section 497 (2), Cr.P.C. Lastly, it has been urged that the applicant has acted in the best interest of the trust by recovering a total amount of Rs.7.29 millions from the consignee, although by the Board's resolution the importer was allowed to deposit only 1.4 million rupees.

6. As far as the case of the prosecution is concerned, the contention of Mr. Abdul Ghafoor Mangi, learned A . A .‑G. is that the case of the consingees was covered by section 44 of the Karachi Port Trust Act, 1886 which provides as follows: "

44. The Board may, in special cases with the previous sanction of the Federal Government, remit the whole or any portion of toll, due, rate or charge leviable according to any scale for the time being in force under the last preceding section: Provided that the sanction of the Federal Government s not be necessary if the remission in any one case does exceed such maximum limit as may be notified by the Fe Government in the official Gazette: Provided further that the Board may direct that their powers under this section shall, in such circumstances and object to such conditions, if any, as they may specify, be exerciseable also by the Chairman or an officer specified by them." Therefore, according to the learned A.A.‑G. the applicant and the co-accused, while clearly disregarding the above provisions, wrongly invoked note 6 of the aforesaid S.R.O., treating the case as a case of "free slip". Note 6 provides as follows:‑

"Note 6: Seven working days after the landing date will be treated as FREE DAY except in the case of Afghan‑in‑transit cargo where 14 days will be allowed. The Traffic Manager or his Deputy may, at his discretion, grant extension of free days where a full consignment has been landed after the 'landing date'. In exceptional case, an extension of free days may also be granted where portions of consignments are landed subsequent to the landing date. Where consignments cannot be cleared through no fault of the importer, an extension of free days may be allowed, but the period of such extension will be regulated by the quantity of goods ready for clearance and will commence from the time they are available for delivery." The learned A.A.‑G. has relied upon a Notification, No. S.R.O. 79 (KE) 74, dated 16‑10‑1974, issued under section 44, according to which cases of remission exceeding fifty thousand rupees requires sanction of the Federal Government. The learned A.A.‑G. has also referred to the statements of Muhammad Adil and Muhammad Athar Qureshi, recorded during the investigation, both of whom were members of the Board of Trustees of the K.P.T. and they have to a great extent supported the prosecution's version by stating that they had been misguided by the applicant as they had not been made aware of the proper legal procedure to be adopted in the case. Therefore, according to the learned A.A.‑G. there is sufficient evidence to establish a prima facie case against the applicant.

7. A copy of the Resolution (No. 747) passed by the Board of Trustees has been filed by the applicant as Annexure' A.I'. indicating that the decision had been taken by the members of the Board on the case being put up before them. Annexure 'A‑1' further shows that on the recommendation of the General Manager, the case was put up by the applicant to the Board which then passed the resolution allowing the remission as aforesaid. On the basis of this, it has been contended by Mr. Khalid M. Ishaque that the applicant cannot be made responsible for the waiver of the aforesaid amount in favour of the consignee as he did not act on his own but the decision was a joint decision taken by the members of the Board.

8. One of the most important factors to be considered by they Court while granting bail to the accused is, whether the prosecution has established a prima facie case against the accused. Consequently the material against the accused in the hands of the prosecution should be such which can raise a reasonable probability that the charge against the accused will be sustained. At this stage the Court has to form only a tentative opinion about the guilt of the accused Now, whether the accused has acted with culpable motive or not while referring the case of the consignees to the Board of Trustees cannot be conclusively determined at this stage as the same can only be determined by the trial Court at the conclusion of the trial by there are statements made by two of the members of the Board before the F .I. A. showing that the members of the Board were misguided by the applicant in this connection. No doubt, the statements are of exculpatory nature but nothing can be said about them at this stage as their credibility can only be determined when evidence is recorded by the trial Court. Besides that there is clear indication in the F.I.R. that the applicant and the General Manager, the co‑accused in the case, by‑passed the usual procedure by referring the case directly to the Board of Trustees. The reading together of the provisions of section 44 of the Port Trust Act, the aforesaid Note 6 and the Notification, dated 16‑10‑1974 prima facie indicate that the sanction of Federal Government was required in the case. It also appears to be doubtful whether Note 6 at all could be invoked in this case because the clearance of the consignments in question appear to have been delayed owning to the fault of the consignees themselves. It is further interesting to note that the power to extend free period under Note 6 vests in the Traffic Manager, but without consulting him applicant and the co‑accused referred the matter to the Board, Under such circumstances the contention of the learned A . A .‑G . that a prima facie case has been made out against the applicant does not appear to be without substance. However, the observations in regard to K.P.T. Act and the rules are tentative.

9. Mr. Abdul Ghafoor Mangi, the learned A.A.‑G. had further argued that the grant of bail before arrest in a cognizable offence is not a rule but an exception, and the same can only be allowed if it is shown that the accused is being arrested owing to some ulterior motive on the part of the concerned authorities as in the normal course, the applicant can legitimately apply for bail after, but not before his arrest. Reliance in this respect has been placed on various cases including Ch. Ameer Khan v. The State (1970 S C M R 283), Murad Khan v. Fazle‑Subhan and another (P L D 1983 SC 82) Muhammad Safdar and others v. The State (1983 S C M R 646) and Zia‑ul‑Hassan v. The State (P L D 1984 SC 192). However, it has been stated by the applicant in para No.12 of his bail application as follows:‑

"

12. That the proceedings against the applicant are mala fide and have been started on account of ulterior motive with a view of harras and humiliate the applicant, who apprehends that if he is arrested he may even be tortured with a view to create false evidence against him."

10. While referring to the case relied upon by the learned A . A .‑G. it may be pointed out that in the first case, the accused had been charged with offence under sections 302 and 307, P.P.C., etc. On an application filed by him for bail before arrest it was held by the Supreme Court that his application for bail before arrest was misconceived as an assessment of the pleas raised by the defence could not be made at such stage. In the next case reported in P L D 1983 SC 82, the accused had been charged with attempted murder, and since the accused failed to satisfy the Court that his apprehended arrest was due to mala fide reasons the Supreme Court declined to grant leave to the applicant to appeal. In the case of Muhammad Safdar, the applicant had been charged with causing injuries to opposite party and his prayer for bail before arrest was held you have been rightly rejected by the High Court in absence of any plea of mala fides. In the last case cited by Mr. Mangi, the accused who was a Moharrir of Police Malkhana had been charged with misappropriation of valuable articles thereof and, therefore, in absence of any allegation of mala fides on the part of the prosecution his prayer for anticipatory bail was held to have been rightly cancelled by the High Court. The present case, in my opinion does not appear to be distinguishable for the above cases. Mr Khalid M. Ishaque, although, has relied upon the case of Jamaluddin v. The State (1985 S C M R 1949) wherein the Supreme Court while referring to the cases of Murad Khan and Zia‑ul‑Hassan, earlier decided by it, had held that the grant or refusal of bail in criminal cases primarily depends upon the facts of each case, but there is nothing in the case to show that the Supreme Court, in any manner, has departed from the view taken earlier by it in those cases. No doubt, the applicant has alleged mala fides against the prosecution as indicated by para. No. 12 of his application, but mala fides on the part of the prosecution or the arresting authority can be established not only by mere allegations made by the applicant in that behalf, but by circumstances of the case. A weakness in the prosecution case, which may palpably appear to be clear on the face thereof can lead the Court to an inference of mala fides. On the other hand, establishment of a bona fide case by the prosecution can defeat such plea. Since there are no specific allegations of mala fides made by the applicant against any particular person, the cases cited by the learned A . A .‑G. are fully attracted to the present case.

11. Consequently, this application is rejected and the order passed by this Court, dated 22‑7‑1987, granting interim bail to the applicant, is recalled and the bonds furnished by the applicant and his surety are cancelled. It is therefore up to the concerned authorities to deal with the applicant in the manner they like. M. Y.H./M‑352/x Anticipatory bail refused.