On 29th May, 2004, Muhammad Aslam, Deputy Suptrintendent, Customs Station Torkham reported the matter to the Collector Customs. Peshawar for registration of formal case to the effect that on 27th May, 2004 the accused. (mentioned in the FIR) have entered a Shipping Bill No, 20618, dated 27.5.2004 in the Export Register of Customs Deptt. stationed at Torkham for the export of 207386 liters petrol to Afghanistan and also did enter the Registration Nos, of the oil tankers allegedly carrying the petrol.. The accused marked the same to the Muhammad Aslam Inspector with the forged signatures of Deputy Superintendent and since the petrol tankers were not available at the checking spot, therefore, seven gate passes were got from Muhammad Aslam Inspector and thus the shipping bill was cleared with the forged signatures of Inspector -Muhammad Aslam and Deputy Superintendent Customs stationed at Torkham. Later on On checking by the Political authorities, Seven No, gate passes were found missing or short. During investigation it came to surface that the political authorities have stamped the said seven gate passes but the same have not been deposited with the administration and later on the political authorities recovered the shipping bills as well as the stamp from the customs agency at Torkham and arrested certain concerned persons. Accordingly, a case vide FIR No, 37, dated 27th May, 2004 was registered at Police Station Custom Investigation & Prosecution Branch, Peshawar, against the accused under Sections 32/131 read with Sections 156(1)(14)(77)(84)/167/178 of the Customs Act, 1969.
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 has 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 are loaded from the Refinery and which is taken by the Carriage Contractor to Torkham and after clearance by the Custom Clearing Agency, the same leaves for its destination.' 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 that the Central Excise staff and responsible persons of the customs authorities always 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; that none of the petitioners has been named in the FIR; that the shipping bills etc. are prepared and cleared by the Customs authorities and the petitioners have no nexus with the said process which otherwise cannot be completed without the active participation of the Customs authorities stationed at Torkham in that the authorities at the helm of Customs Department in order to save their skin, have made them scape goats and to this effect the company has also got registered a criminal case against the carriage contractor etc. and finally he argued that none of the offences mentioned in the FIR visits 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 extra ordinary 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 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 no pilferage of goods etc. to foreign country/Afghanistan can be expected to take place without active knowledge or participation of the Customs authorities. As regards the involvement of the petitioners, the petitioners have not been charged in the FIR by name and even tentative assessm ent of the record, at the moment, does not show any nexus of the petitioners with the present illegal activities committed at Tokram and they have been involved in the present case on the basis of mere inferences as in the presence of the Custom as well as the Excise staff at the premises of the Attack 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 Investigating 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 Custom authorities, therefore, malafides 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.