1999 PLP 2013 (MLD)

After finalization of the investigation interim charge-sheet was filed before the learned Special Judge Customs and Taxation Karachi. Bail application on behalf of the applicant/accused was moved before the learned trial Court which was rejected vide order dated 1-4-1998. Hence the present bail application. Mr. Sohail Muzaffar, learned counsel for the applicant/accused contends that applicant is neither owner of the consignment, nor the importer, nor the representative of the importer. Learned counsel further contends that he even is not a clearing agent, but an agent of the clearing agent and was not engaged to clear the container, as he has no licence to carry out such job. That the container was allegedly seized on National High way near K.M.C. Check post and the nearest place to search the container was the Custom Area of Post Qasim but no search was carried out there or on the spot which shows that truck was intercepted somewhere near the A.S.O. head office where search was carried out. That admittedly no private person was made mashir in this search, applicant/accused is no more required for further investigation. Co-accused Muhammad Hussain has been granted pre-arrest bail by the learned trial Court which was rejected vide other dated 1-4-1998. Hence the present bail application. Mr. Sohail Muzaffar, learned counsel for the applicant referred to (1) Manzoor and 4 others v.The Sate (PLD 1972 S.C. 81), (2) Munir Muhammad and 3 others v.The State (1976 SCMR 145) (3) Noorul and others v.The State (1976 SCMR 190) (4) Ghazi Shah and others v.The State (1983 SCMR 727) (5) Arif Ali. and another v.The State (1984 PCr.LJ 2418). Mr. Mubarak Hussain Siddiqui, learned Deputy Attorney-General submits that final charge sheet has not yet been submitted, investigation is still going on and he opposes the bail application. I have gone through the material placed with the case. Admittedly container involved in the case was intercepted at the National Highway near K.M.C. Check Post and the goods were cleared by the Customs Authorities from the-Customs Area of the Post Qasim but none from the Customs Officials have been joined as co-accused in this case. Since interim charge-sheet has been filed on 17-3-1998 under the circumstances applicant/accused is no more required for investigation purposes. Applicant/accused is neither owner of the company nor is a clearing agent. I would like to discuss the case law referred to by the learned counsel for the applicant. (1) (PLD 1972 S.C. 81): In this case dictum laid down by their Lordships is that bail is not to be withheld as punishment. (2) (1976 SCMR 145): In this matter appellant was in custody for some months without any prosecution evidence having been recorded and appellant was granted bail. In this case also applicant is in custody since 17-3-1998, even then final charge sheet has not been submitted. (3) (1976 SCMR 190): In this matter real beneficiary of smuggled goods, owner of launch, was not available and accused/petitioners were only paid servants of owner of launch were arrested and prosecuted. Keeping in view the above facts their Lordships of the Supreme Court were pleased to grant bail. (4) (1983 SCMR 727). In this matter main accused was granted bail, co accused being merely 'carrier', was also held to be entitled to be released on bail. (5) (1984 PCr.LJ 2518). In this case accused was mere carrier of contraband and he was granted bail. The case law referred to hereinabove is relevant to the facts of the present case which I respectfully follow. Moreover, co-accused Muhammad Hussain Usman has been granted pre-arrest bail by the Special Judge (Customs & Taxation) Karachi vide order dated 30-3-1998. Rule, of consistency, under the circumstances is also applicable in this case. For the facts, circumstances and case law, I am of the considered opinion that case of the applicant/accused requires further inquiry. Consequently, application is granted, he may be released on bail on furnishing surety in the sum of Rs.5,00,000 and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. N.H.Q./N 84/K Bail allowed