' NAZIM HUSSAIN SIDDIQUI, C.J.--- Petitioner, Asif Ali Zardari, under Article 185(3) of the Constitution of Islamic Republic of Pakistan has impugned the order/judgment, dated 3-6-2003 of a learned Division Bench Lahore High Court, Rawalpindi Bench passed in Writ Petition No,430 of 2002, whereby bail was declined to the petitioner in Reference No,59 of 2002 (BMW Car Reference).
2. The charge against the petitioner is that being a Member of National Assembly/holder of Public Office in July-August, 1995 by misusing his power, position and public authority illegally and fraudulently imported a BMW bullet proof vehicle/car with Engine No,604 D0346 Chassis No,WBAGC5090 CD9H66 Model, 1993 by showing it an ordinary 1600 horse power car in the name of Sajid Qayyum and got it registered, as such, by preparing false documents and fabricating the record, thus, committed an offence of corruption and corrupt practices, as defined under section 9 punishable under section 10 of the National Accountability Bureau Ordinance, 1999. Further, the charge is that the petitioner caused a loss of Rs,1, 42, 06,622 to the National exchequer by evasion of Customs duties and taxes. It is said that thereby the petitioner committed an offence of corruption and corrupt practices, punishable under Article 8 of the Schedule of the National Accountability Bureau Ordinance, 1999.
3. The petitioner was taken into custody on 5th November, 1996 on the day of the then Government of Pakistan People's Party was removed by the then President of Pakistan.
4. In all following cases were registered against him: Accountability References
(1) Asset Reference No,14 of 2001.
(2) Polo Ground Reference No,6 of 2000.
(3) Ursus Tractor Reference.
(4) Steel Mills Reference No,27 of 2000.
(5) SGS Reference No,41 of 2001.
(6) ARY Gold 23 of 2000. Criminal Cases
(1) Mir Murtaza Bhutto Murder Case F.I.R. No,443 of 1996 Police Station Clifton, Karachi.
(2) Container case F.I.R. No,2 of 1997 of F.I.A. S.B.C. Circle Karachi.
(3) Alam Baloch Murder Case F.I.R. No,70 of 1997 of Police Station Qasim Abad, Hyderabad.
(4) Nazim Murder case Police Station Ferozabad, Karachi.
(5) Sajjad Hussain Murder case Police Station Defence, Karachi.
(6) Two suicide cases F.I.R. No,65 of 1999 and F.I.R. No,66 of Police Station, Civil Lines, Karachi.
(7) Narcotics case F.I.R. No,525 of 1997 of Police Station, Qila Gujar Singh, Lahore.
5. It is contended on behalf of the petitioner that the car in question was imported from London by Sajid Qayyum P.W. Lawfully and duty amount of 55 lacs, assessed by the Customs Authority was paid, that said car was neither registered in the name of the petitioner, nor there is any material on record to connect him with the import of said car nor with the payment of custom duties for its clearance, that bill of entry for its clearance was not filed by the petitioner nor by any person on his behalf or under his instructions, that original importer namely Sajid.Qayyum had transferred said car in favor of one Badaruddin and at present one Saeed Khan is its owner, that the car was not sent for repair by the petitioner from Zardari House to the garage of Aitizaz Niazi, that no material was available on record to invoke section 32 of the Customs Act, 1969 against the petitioner, that the Appraisement Collectorate, Customs, granted necessary permission to aforesaid Sajid Qayyum, that bill of entry was filed on behalf of above named person and the custom duty was assessed and paid by said Sajid Qayyum, that no notice under section 32 of the Customs Act, 1969 was issued and it is enough to prove that no custom duty was evaded, that if any duty was at all payable it could not be recovered beyond three years from 1995/96, that trial of the petitioner was violative of the Constitutional rights of the petitioner as contained in Articles 2-A, 4, 9, and 25 of the Constitution, 1973, that the petitioner was not holding any portfolio of the minister at the relevant time and no evidence worth-mentioning has been brought on record to show that he influenced any person or misused his authority for the purpose of making misdeclaration of the value of the car, that there was no evidence on record to show that any document was prepared on his direction, supervision or threat, that the trial of the petitioner was hit by the principles of double jeopardy and under the Constitutional and statutory guarantee no person shall be vexed twice for the same offence, that initial declaration by the import of BMW was not accepted by the Customs Department and after summary adjudication the Collector Customs reassessed the value of the car and imposed penalty, which was duly paid by the importer, that the Collector of Customs ordered the confiscation of said car, subject to the option to redeem it on payment of fine equivalent to 15% of the ascertained value in addition to the customs duty and taxes leviable thereupon, that under. S.R.O. No,238(I)/95, dated 27-3-1995, the Federal Government had exempted the custom duty and sales tax leviable on import of bullet proof car designed for the transport of persons falling under the 1st Schedule to the Customs Act, 1969, that no case is made out against the petitioner in view of statements of P.Ws. Namely, Anis Ahmed, Syed Hasan Raza Jaffery, Deputy Collector of Customs and Masood-ul-Hassan. On above grounds it was pleaded that the case of further enquiry was made out. Above grounds were also raised before High Court.
6. Raja Muhammad Ibrahim Satti, Advocate Supreme Court appearing for the respondents before this Court vehemently opposed the bail and learned High Court agreeing with Deputy Prosecutor- General (Abdul Baseer Qureshi) declined bail to the petitioner, inter alia, that entire evidence has not yet been recorded and that deep appreciation of the evidence at this stage is neither permissible nor possible, that there are grounds to believe that the petitioner is guilty of the offence he stands charged.
7. It is established from record that original importer was Sajid Qayyum, who transferred said car to Badaruddin and later transferred it to one Saeed Khan. It is also evident from record that it was Sajid Qayyum, who had imported it and paid the custom duty according to law. There is irrefutable evidence to the effect that the petitioner at the relevant time was not in power. Nothing concrete has been brought on record to show that the petitioner had any link with said Sajid Qayyum or for that matter with Badruddin and Saeed Khan. Also, there is no evidence worth relying that the car was sent from Zardari House to the garage of Aitizaz Niazi. Neither Sajid Qayyum nor Badruddin nor Saeed Khan nor any Custom Officer nor any Registration Officer has been joined as accused. One of the main witnesses of the prosecution namely, Anis Ahmed, during the trial was declared hostile as he did not support the prosecution. No evidence worth-mentioning is available on record to indicate that custom duty and other charges were paid by the petitioner. Proceedings against the petitioner in this matter were initiated when he was already granted bail/acquitted in other cases registered against him.
8. We asked learned counsel for the respondents that it appeared that the case against the petitioner was mala fide, as he was involved in this case only after he was granted bail in other cases. Learned counsel was unable to give any satisfactory reply but submitted that there was no question of false involvement and the case was registered strictly in accordance with law. Prima facie, there is no evidence worth relying and the evidence so collected is not enough to decline the bail. Intrinsic value of documentary evidence at this juncture can neither be negated, nor minimized, nor can said evidence be ignored. A strong case of further enquiry is made out and bail was granted to the petitioner in terms of short order, dated 22-11-2004, which reads as under:-- "For reasons to be recorded later on, the petition is converted into appeal and the same is allowed, The order, dated 3-6-2003 delivered in Writ Petition No,430 of 2002 by a learned Division Bench of Lahore High Court, Rawalpindi Bench is set aside. Bail is granted to petitioner Asif Ali Zardari in Reference No,59 of 2002 (BMW Car Reference) to the satisfaction of trial Court (Accountability, Court, Rawalpindi/Islamabad) in the sum of Rs,10,00,000 (Rupees ten lacs only) and P.R. Bond in the like amount."
9. Above are the reasons for the short order announced earlier?