1999 PLP 844 (MLD)

Crime Case No.6 dated 3-2-1998 stands registered under sections 156(1) 8, 14, 81, 82, 86 and 178 of the Customs Act, 1969 at the Directorate of Intelligence and Investigation (Customs and Excise) Lahore at the instance of Abdul Ahad Khan Superintendent Customs Intelligence, Lahore after the Deputy Director of the aforesaid Directorate Supervised the raid and checked the imported items lying in Container No. APLU 981340 earlier checked by Anjam Sheraz as an Examiner of the Customs Department posted at Dry Port, Lahore. The allegation against the importers is that they mis-declared the goods in terms of quantity and description and smuggled the same while the allegation against petitioner Anjam Sheraz is that he as an Officer of Customs is guilty of a wilful breach of Customs Act, 1969 who abetted and connived for the fraud with the importers for the purpose of injuring the Customs Revenue and that he did not give the information in writing to the Officers Incharge of the Customs House or Customs Station about the commission of the offence by the importers. Thus, he has been booked under section 156(81) (82) and (86) alongwith the importers who were found liable under the remaining penal sections mentioned in the F.I.R.

2. Apprehending his arrest Anjum Sheraz petitioner filed his petition before the learned Special Judge Customs, Lahore for his admission to pre-arrest bail which was dismissed. He could not be arrested and he has moved this Court through the filing of this petition for his admission to pre-arrest bail who has been allowed the interim relief.

3. I have heard the learned counsel for the petitioner as well as the learned counsel for the State and gone through the record before me. At the very outset I would express that while disposing of Writ Petition No.6734 of 1998 on 21-5-1998 I have quashed the F.I.R. on the ground that Directorate of Intelligence and Investigation (Customs and Excise) Lahore is not a "Police station" and the said F.I.R. could not be registered there. It means that there is no legal necessity on the part of Anjam Sheraz to get himself admitted to pre arrest bail who stands exonerated thereof.

3. The maximum punishment for each offence under sections 156(81) and 156(82) is imprisonment for a term not exceeding three years or to fine or to both and the maximum punishment under section 156(86) is one year ox to fine not exceeding Rs.25,000 or to both. For the sake of academic discussion and for the guidance of the learned subordinate Courts I am tempted to give my verdict as to whether the offences punishable with the aforesaid sentences are bailable or non-bailable. In this regard I have to refer to the Schedule II to Code of Criminal Procedure at its fag end containing the tabular statement of offences under the caption Offences against other laws. About an offence punishable with imprisonment for three years and upwards but not exceeding seven years or with whipping not exceeding 80 stripes with or without imprisonment the police is made competent to arrest the accused without warrant and the offence has been declared to be non-bailable. It is next mentioned there that an offence punishable with imprisonment for one year and upwards but less than three years or with whipping not exceeding forty stripes with or without imprisonment shall be bailable. It means that section 156(86) is bailable keeping in view the quantum of punishment. With respect to the offence (s) under sections 156(81) and 156(82) the contention of the learned counsel for Anjam Sheraz petitioner is that the accused of the offences has been made liable for imprisonment not exceeding three years or fine or with both and that the discretion having been vested with the Presiding Officer about punishment for fine only the offences can be held and termed to be bailable. On the contrary learned counsel for the State laid the emphasis that keeping in view the sentence upto three years the aforesaid offences are non-bailable and the accused of such offences can be arrested without warrant.

4. In this context I have to refer to the salutory principle for the interpretation of Penal Law, as is evident from "Maxwell on the Interpretation of Statutes (Twelvth Edition) by P.St.J. Langan, Page 239" which is reproduced below: "The principle applied in construing a Penal Act is that if, in construing the relevant provisions, there appears any reasonable doubt or a ambiguity, it will be resolved in favour of the person who would be liable to the penalty."

5. If there are two interpretations possible, I am persuaded to accept that interpretation which is more lenient and favours the accused person.

6. Technically speaking the sentence for the commission of the aforesaid offences under the Customs Act, 1969 being upto (not exceeding) three years or fine or with both, the same can safely be held to be bailable. Rather every offence against the other laws wherein the punishment is not exceeding three years or fine or with both is bailable. In the aforesaid provisions of Schedule 11 to Code of Criminal Procedure the offences under sections 137, 154, and 155 Pakistan Penal Code Punishable with fine are bailable. The punishment under sections 219, 220 of the Pakistan Penal Code is 7 years or fine or both and the offences are bailable. The punishment under sections 205, 218 and 225-A Pakistan Penal Code is 3 years or fine or both and offences are bailable. As such an offence against other Laws punishable with imprisonment not exceeding three years or with fine or with both can safely he held to be bailable unless specifically declared and made as non-bailable by the legislature in the aforesaid Schedule II. As expressed above the interpretation which is more lenient and favours the accused shall have to be followed in such a state of affairs as the offences against other laws punishable with imprisonment not exceeding three ears or with fine or wit are not included in the aforesaid Schedule II. I, therefore, hold that the offences under section 156 (81), (82) of the Customs Act, 1969 are bailable. Thus, the accused of the offences punishable against other Laws with imprisonment not exceeding three nears or with fine or with both are entitled to be admitted to bail as of right as contemplated under section 496 of the Code of Criminal Procedure. This bail application is disposed of in the aforesaid terms. H.B.T./A-272/L Bail granted.