The Director-General Customs Intelligence, Islamabad, received spy information that the Attock Petroleum Limited was selling PMG petrol in the Pakistani market illegally in the garb of its export to Afghanistan and due to their this act, the Government exchequer sustained huge losses in the form of taxes and duties. In the light of this information, a probe by the Customs high-ups was made Which unveiled that various Carriage Contractors with the help of Pir Baba (Aryana), an importer of Afghanistan, were involved in this ugly business. Further investigation revealed that certain shipping bills contained forged signatures and stamps of the Customs Authorities and as such the petrol, etc. Which were to be exported to Afghanistan, were actually not exported and rather the same were sold out in the Pakistan Market illegally. Accordingly, the carriage contractors, Attock Petroleum Ltd. And Khyber Trading Agency were found involved in the case. Resultantly, a criminal case under sections 3/38/49 of the Central Excises Act, 1944, Sections 3/4/6/34/35/36 of the Sales Tax Act 1990, Rule 12-A and 13 of the Central Excise Rules 1944, S.R.O. No,137(I)/2002, dated 7-3-2002, Sections 32/131 read with sections 156(1)(14)(77)(84)(89)/ 157/167/178 of the Customs Act, 1969 at Police Station I & P Branch Customs House, Peshawar, vide F.I.R No,41, dated 5-6-2004, was registered.
2. Since in the aforesaid case, the concerned officials of Attock Petroleum Ltd., Carriage Contractor and the Clearing Agents have been involved in the case, therefore, Masood and Yousaf Khan, officials of the Attock Petroleum Limited, were connected with the commission of offence.
3. After having been involved in the case, the accused approached the learned Special Judge, Customs, Peshawar for their bail before arrest which was initially granted but later on the same was not confirmed. Now the accused have approached this Court by moving separate applications for their bail before arrest. I am disposing of both the applications by this single order.
4. The learned counsel for the petitioners have contended that the petitioners who are responsible officials of the Attock Petroleum Limited Company which is a Public Limited Company. This Company is engaged in selling petroleum products/petrol to Afghanistan which is loaded from the Refinery and which is taken by the Carriage Contractor to Torkham and after clearance from the Custom Clearing Agency as well as the Customs Authorities, the same leaves for its destination in Afghanistan. At the time of loading of the petrol/petroleum products at the Refinery, its information is faxed by the Company to the Customs Authorities at Torkham and also Central Excise staff and responsible persons of the Customs Authorities remain present at the gate of the premises and after issuance of gate passes and clearance from them, the same leaves for Torkham. The learned counsel made stress on the point that when the products leave the premises of the company, then it becomes liability of the Carriage Contractor as he is responsible for its safe delivery at Afghanistan and the company has no concern with the illegal activities whatsoever of'the said Contractor and on the basis of above submissions, the learned counsel contended that the petitioners have falsely and malafidely been implicated in the present case in order to tarnish the good name of the company; that none of the petitioners has been named in the F.I.R; that the shipping bills etc. Are prepared and cleared by the Customs Authorities and the petitioners have no nexus with the said process in that the Authorities at the helm of Customs Department in order to save their skin, have made them scapegoats and finally he argued that none of the offences mentioned in the F.I.R visit imprisonment of more than three years and requested for the confirmation of the bail before arrest.
5. While on the other hand, the learned Deputy Attorney General representing the respondents has submitted that the petitioners are prima facie involved in the commission of offence and they are hand in gloves with the co-accused charged in the case and with the connivance of the petitioners, the Government exchequer has been deprived of millions of rupees in the form of various taxes and duties; that the petitioners do not fulfill the pre-requisites essential for the grant of extraordinary concession of pre-arrest bail.
6. On going through the record it transpires that the network of the entire exercise appears to have been woven at the spot of Torkham where the Customs Authorities and also the Custom Clearing Agents have their good offices for the completion of the entire legal formalities required for the lawful export of the goods to foreign country/Afghanistan and it would be needless to say that nothing could be expected to be pilfered without the active knowledge or participation of the Customs Authorities to foreign country/Afghanistan. As regards the involvement of the petitioners, the petitioners have not been charged in the F.I.R by name and even tentative assessment of the record, at the moment, does not show any nexus of the petitioners with the present illegal activities committed at Torkham and they have been involved in the present case on the basis of mere inferences as in the presence of the Customs as well as the Excise Staff at the premises of the Attock Petroleum Ltd., any act of hoodwinking on the part of petitioners is a matter which obviously does not appeal to human reason and on the face of it, requires further probe. Besides, the material available on record shows that the petitioners duly participated in the investigation and associated with the Investigation Officer and to this effect their detailed statements have been recorded which too prima facie do not show their involvement in the instant case at present.
Furthermore, since the commission of present offence has become possible on account of lapses on the part of Customs Authorities, therefore, mala fides on their part to drag the petitioners into the present case cannot be ruled out.
7. In view of the above reasons, I am of the view that it is a fit case for the grant of bail before arrest and accordingly, by accepting this application, the ad interim bails already granted to the accused/petitioners by this Court on 25-6-2004 stand confirmed. However, the petitioners are directed to make themselves available to the investigating agency whenever/wherever they are required.
8. The perusal of the record as well as the contention of the learned counsel for the petitioners qua involvement of the Customs Staff stationed at Torkham, forces one to ponder over entrustment of the investigation of the present case to some other competent agency, may be, F.I.A. (if competent) as in case of involvement of the Customs staff, it would not be difficult for the Customs Authorities to mould the investigation in their favour just to oust themselves from the present embarrassing situation and in such state of affairs their effort to shift the responsibility to others cannot be taken out of consideration. Therefore, it would be in the interest of justice, fair play and would also meet the requirements of natural justice if the learned Deputy Attorney General should look into this aspect (entrustment of the investigation to some other competent agency) of the case under the guidance of learned Attorney General for Pakistan. However, if during the investigation at any time it came to surface, by collecting some evidence, that the petitioners are connected with the commission of offence, the prosecution may approach the Court for the recall of their bail.