1. ' The applicant is facing his trial in Court of Special Judge (Customs and Taxation), Karachi in F.I.R.
2. No, C. No, Appg-20-M/DCl/2004, dated 1-7-2004. The Applicant during his posting as Superintendent, Dry Port Mughulpura, Lahore, connived with the exporter Messrs H. Sheikh Noour- ud-Din, who through bill of export, made an untrue statement with regard to the weight, value, quantity and quality of the consignment with purpose of claim duty draw back and refund of sales tax. The precise allegation against the applicant in F.I.R. Is that 'the customs officials, as mentioned in column 4 above, have not examined the consignment according to the Examination Manual thereby facilitating the tax evader involved in tax fraud, misdeclaration of goods in description, quantity and value of the goods, thus they have connived/abetted in the commission of offence.
3. ' In interim charge-sheet, similar allegation was that 'the customs officials, as mentioned in column 4 above, have not examined the consignment according to the Examination Manual thereby facilitating the tax evader involved in tax fraud, misdeclaration of goods in description, quantity .And value of the goods, thus they have connived/abetted in the commission of offence.
4. ' The application for concession of bail moved before the trial Court was dismissed, following the dictum laid down in Imtiaz Ahmed and others v. The State (PLD 1997 SC 545), that 'the people commit offences detrimental to the society and the counter for money. In the above scenario the Court approach should be reformation-oriented with the desire to suppress the above mischief. To achieve the above objective, it is imperative that Court should apply strictly the laws which are designed and intended to eradicate the above national evils but at the same time, they are duty bound to ensure that the above approach should not result in miscarriage of justice.' Hence the present bail application.
5. ' I have heard Mr. Shaukat Hayat, learned counsel for the applicant and Syed Tariq Ali, learned Federal Counsel representing the State.
6. ' Learned Federal Counsel has opposed the bail application on the ground that the applicant has connived with the exporter by not examining the consignment, if the consignment would not have been retrieved from the port of destination, the Export would have caused loss to the public exchequer by claiming duty draw back and refund of sales tax by misdeclaration of goods in description, quantity and value.. During the hearing, the bill of export was also produced to show that the applicant only countersigned the bill of export without application of mind. His further contention was that by new offence 'fiscal fraud' has been brought on the statute book through Finance Act, 2004 and punishment of which may extend to ten years but not less than five years, therefore, the offence does not fall within the prohibitory clause.
7. ' Learned counsel for the applicant has canvassed the following grounds in support of the bail application.
(1) That the offence alleged against the applicant at most fall under the clauses (81) and (82) of section 156(1) of the Customs Act, which are punishable with a term not exceeding three years or fine or both; therefore, the case of the applicant does not fall within the prohibitory clause,
(2) That the co-accused Ejaz Ahmed Chaudhry with same allegation as that of the applicant, has been extended bail by this Court in Spl. Crl. Bail. A. No, 29 of 2004 by order, dated 27-8-2004, therefore, the applicant is also entitled for bail under the principles of rule of consistency.
(3) That the evidence consists of documentary evidence, which are in possession of the prosecution and there is no possibility of tampering of the evidence. The superior Courts in such circumstances, have extended the concession of bail.
8. ' No doubt, new offence in the shape of tax fraud has been brought on the Statute Book by virtue of insertion of section 32A by Finance Act, 2004. Section 32A reads as follows:-- '32A. Fiscal fraud.---(l.) if any person, in connection with any matter related to customs-
(a) causes to submit documents including those filed electronically, which are concocted, altered, mutilated, false, forged, tampered or counterfeit to a functionary of customs;
(b) declares in the bill of entry or bill of export or electronically filed customs .Declarations, the name and address of any exporter or importer which is physically non-existent at the given address;
(c) declares 'in the bill of entry or bill of export or electronically filed customs declaration, an untrue information regarding description, quantity, quality, origin and value of goods;
(d) alters, mutilates or suppresses any finding of the customs functionary on 'any document or in the computerized record; or
(e) attempts, abets or connives in any action mentioned in clauses (a), (b), (c) and (d) above.
9. Clause 14A in section 156(1) of the Act has been inserted, making the offence of 'tax fraud' punishable with ten 'years. It reads as follows:-- ' In the instant case, occurrence is of 12-6-2004 and it has been contended that the F.I.R. Lodged on 1-7-2004 and the Finance Bill was presented on 12-6-2004, therefore, from the said date, the offence would be deemed to be on the Statute Book. No doubt, the Finance Act is the money bill, it was presented on 12-6-2004 and it was passed by the Parliament and the President assented to the Bill on 30-6-2004 and published on 1-7-2004 subsection (3) of section 1 contains the date of enforceability of the Act at once except the provisions of section 6 which shall come into force from the first day of July.
10. 2004.
11. ' In terms of Article 75 clause (3) of the Constitution of the Islamic Public of Pakistan, when the President assented to a Bill, it shall become law and be called an Act of Parliament, therefore, to contend that new offence would be deemed on the Statute Book when Bill was presented, is contrary the statutory provision, it will come into force on the day when the President assented to Statute Book and in the instant case, the President assented the Bill on 30-6-2004. The tax fraud becomes new Law w.e.f, 30-6-2004 and not from 12-6-2004. The new offence cannot be given retrospective effect.
12. 'The allegation against the applicant is that he has not examined the consignment which was short of description, quantity and value as per declaration made in the Bill of Export. The allegation against the applicant brings his action punishable under clauses (81) and (82) of section 156(1) of the Customs Act, which offence do not fall within the prohibitory clause.
13. ' Adverting to the second ground, learned counsel for the applicant contended that co-accused Ejaz Ahmed Chaudhry has been extended the concession of bail against whom the prosecution has the same charges, therefore, under the rule of consistency, the applicant Fazal Mahmood is.
14. Also entitled for equal and fair testament for the concession of bail.
15. ' In Fida Hussain v. The State (PLD 2002 SC 46), bail was granted to the petitioner on rule of consistency by observing that "we are conscious of the rule of consistency, which must be followed in order to maintain balance and the doctrine of equality before the law. Since co-accused Muhammad Ismail has been admitted to bail by a Bench of this Court, in similar circumstances and on the same charge, it would not be just proper and reasonable to decline bail to the ,petitioner. In Khalid Masood v. The State (2002 M LD 1012), bail was granted to the applicant by applying the rule of consistency as the case of the applicant was on better footing than that of co- accused, who was granted by the Division Bench of this Court.
16. ' There is no cavil with the proposition enunciated in cases referred to above that the rule of consistency requires that co-accused is entitled for the concession of bail, if his case is identical to that of a co-accused, who has been extended such benefit, in order to maintain balance and under the doctrine of equality before the law.
17. ' The rule of proprietary demands that two persons placed on similar circumstances be given equal treatment. The case of the applicant is similar to that of case of Ijaz Ahmed Chaudhry. Co- accused, Ijaz Ahmed Chaudhry has already been extended the concession of bail. Therefore, the applicant is extended the concession of bail pending his trial, provided he furnishes surety in the sum of Rs,5,00,000 (Rupees Five Lacs) with P.R. Bond of like amount to the satisfaction of the trial Court.