1. ' All the above criminal bail applications arise out of the common facts and circumstances and therefore, have been heard together and are disposed of by this common order.
2. ' For the sake of convenience the facts as stated in the charge sheet in Case No,38 of 2005 State v.
3. Muhammad Munaf and others are reproduced below:- "Whereas, on importation of a used Toyota Platz Car Model 2002 bearing Chasis No,SCP11-0056438 the importer Mrs. Bilqees Akhtar applied for issuance of an import authorization vide Application Serial No,003485, Reference No,IM/CAR/G326/05-VII dated Nil along with the documents as provided vide paragraph '1(d), Appendix-0 to the Import Policy Order-2004.
(1) Gift undertaking dated 28-12-2004 in her name by her son namely Muhammad Amjad Parvaiz.
(2) Attested photocopies of Passport No,KD-337288.
(3) Earning Certificate No . Com-II/1/98 dated 29-12-2004 purportedly issued by the Embassy of Pakistan, Seoul, South. Korea.
(4) Photocopy of NIC No,33105-0317299-6 of the importer.
(5) Purchase Receipt dated 26-11-2004.
(6) Bill of Lading No,KMSA-015A, dated 29-11-2004.
(7) Undertaking furnished by Clearing Agent namely Muhammad Munaf, Proprietor of Messrs Munaf International, confirming the genuineness of the registration documents of the vehicle.
4. ' Since the documents mentioned at serial numbers 1, 2, and 3 were neither issued and/or were duly attested by the Commercial Counsellor, Embassy of Pakistan, Seoul, South Korea, the import authorization was accordingly issued, as per practice, pending post clearance verification of import documents.
5. ' The import documents were forwarded to the Commercial Counsellor, Embassy of Pakistan, Seoul, South Korea, vide letter No,SI/MISC/01/93-VIII (CAR CELL), dated 17-2-2005. The Commercial Counsellor, Embassy of Pakistan, Seoul, South Korea, had responded vide their letter No,Corn.11/1/98 dated 16th March, 2005 wherein they have denied the verification of the genuineness of the Gift Undertaking, Earning Certificate and stated that their office had not issued the Gift Undertakings and Earning Certificate in the name of the importer. Hence the same are fake/forged. Resultantly, an F.I.R. No,SI/MISC/59/2005-AIB was lodged in this Honourable Court by the complainant.
6. ' After lodging of F.I.R., investigation of the case was entrusted to the undersigned. During the course of investigation statements of the persons acquainted with the facts were recorded under section 161, Cr.P.C. Apart from the statement, correspondence was carried out with Shipping Lines, Karachi Port Trust, Motor Registration Authority etc. The oral and documentary evidence so collected had brought on record that Muhammad Munaf of Messrs Munaf International filed application on behalf of importer and submitted the relevant documents essential for issuance of the import authorization. The documents submitted also include the fake Gift Undertaking and Earning Certificate bearing fake signatures of the officials of Embassy of Pakistan, Seoul, South .Korea. The statements of the examining staff have also been recorded under section 161, Cr.P.C. Confirming that the Goods Declaration was presented before them for -the examination of the vehicle by the representative of Messrs Munaf International, Clearing Agent, namely Muhammad Asif. It has further emerged that the delivery of the vehicle was also obtained by the representative of Messrs Munaf International, namely Muhammad Javed holding valid K.P.T. Delivery Licence No,1933 on behalf of above mentioned clearing agency. The amount of duty and taxes were also paid by Muhammad. Munaf through his D.A. (Deposit Account) maintained at Account Section, Custom House, Karachi. The aspect of payment of duty and taxes is being probed further and this Honourable Court will be informed accordingly. The documents received from various Government/non-Government agencies will be produced during the course of trial. It has further come in evidence that the Delivery Order of the vehicle was received by the representative of accused Clearing Agent from the Shipping Agent Messrs HA's Logistic Inc.
7. ' During the course of investigation accused Muhammad Munaf has disclosed that he has received the documents viz. Fake Gift Undertaking, Earning Certificate and verification letter, MC of Giftee .
8. (Importer), attested photocopy of Passport, Purchase receipt and Original Bill of Lading, from one Karim Bakhsh resident of 17-D, Muhammad Ali Housing Society, Karachi. However, Mr. Karim Buksh has not been traced. Apparently it seems that accused Muhammad Munaf has not given the correct whereabouts of Mrs. Karim Buksh. He was asked many times to provide the information regarding the real owner of the vehicle, the whereabouts of the vehicles and the show room involved in this shady transaction, but accused Muhammad Munaf has not provided any complete information.
9. ' The initial inquiry into the matter suggests that accused Muhammad Muriaf is hiding the real information. He was asked to arrange the Pay Orders through which payment was made for the release of the vehicle, but has not arranged that as yet, despite verbal promises. It seems that accused Muhammad Munaf is actively involved in this nefarious activity.
10. ' Efforts are being made to trace out Karim Baksh in order to check the veracity of disclosure made by the accused Muhammad Munaf. In support of his disclosure accused Muhammad Munaf has also made available five envelops dispatched from Korea by one Javed Bajwa and Faisal Ahmed in the name of Karim Baksh containing fake Gift Undertakings and Earning Certificates. These envelops have been taken into custody under the cover of a Musheernama for the purpose of investigation.
11. ' Efforts are, being made to locate the released vehicle in order to impound the same and to trace out the person presently holding the custody of vehicle in order to interrogate him about the aspects pertaining to the purchase and registration of it. The matter has also been taken up with Motor Registration Authority (Excise and Taxation), Karachi, so that, necessary action may be taken to forestall the registration of the same. Moreover, certain aspects regarding issuance of import permit are being scrutinized. The outcome of such aspects would also be brought on record and would be presented before this Honourable Court accordingly.
12. ' Letter to the importer have been dispatched, reply are still awaited. The outcome of this aspect will also be presented before this Honourable Court accordingly. The role of importer is also under investigating including the existence of the same and whether the vehicle was originally or actually imported by her.
13. ' In the light of above mentioned facts it is prima facie, established that accused Muhammad Munaf succeeded in obtaining the clearance of used vehicle, on the basis of fake Gift Undertaking and Earning Certificate, which otherwise is not importable in terms of Appendix-G of the Import Policy Order, 2004. The acts of omission and commission, committed by accused Muhammad Munaf (Clearing Agent) and Bilqees Akhtar (Importer) warrants action under' sections 2(s), 16, 32, and 192 of the Customs Act, 1969, punishable under clauses (8), (14), (77), (86) and (89) of section 156(1) (ibid), read with Import Policy Order, 2004, notified vide S.R.O.634(I)/2004 dated 22-7-2004.
14. Letters to the importers have been dispatched and replies are still awaited."
15. ' The common features in all the fourteen cases are that the importers/donees are ladies, all of whom are not traceable, the documents on the basis whereof import authorization were issued have been reported to be fake/forged, the amount of duty and taxes have been paid by applicant Muhammad Munaf, the Clearing Agent through his D.A. (Deposit Account) maintained at Account Section. Custom House, Karachi, delivery orders of the vehicles were received by the representative of applicant/accused from the Shipping Agent, the fake/forged documents are alleged to have been received from one Karim Buksh, who is not traceable, the real owners of the vehicles is not known. The show-room involved in the transaction is unknown, the pay orders through which payment was made for release of the vehicles has not been produced and as stated by the learned Standing Counsel, the vehicles have not been registered with the Excise and Taxation Authority at the places of their destination.
16. ' Mr. M. Ilyas Khan, learned counsel for the applicant has submitted that the applicant is merely a Clearing Agent and has presented the documents, which were delivered to him by Karim Bux. He stated that the notice issued by the Investigating Officer has been served on Karim Bux. He further contended there is no mens rea on the part of applicant, who acted as Clearing Agent in good faith, and therefore, he is entitled to be released on bail. He further contended that the pay orders through which payment was made for the release of vehicle are available, which can be produced.
17. However, no pay order has been produced by the learned counsel.
18. ' On the other hand, Mr. Haider Iqbal Wahaniwal, learned counsel of the Customs Department, has submitted that the applicant furnished undertaking confirming the genuineness of the registration documents of the vehicle, which undertaking has been found incorrect. He further contended that it has been wrongly contended by the learned counsel for the applicant that notice on Karim Bux from whom the fake documents are alleged to have been received by the applicant, has been served. He contended that applicant has disclosed the name of Karim Bux, who is not traceable and therefore, at present it appears that he is a fake person with an, imaginary address. He further contended that the importers/donees are not traceable. The investigation has revealed that the vehicles have not been registered at their purported stations of destination and therefore, all the circumstances indicate that the applicant Muhammad Munaf has himself arranged everything fraudulently and he is the actual beneficiary of the entire fraudulent transaction. He has further contended that under section 209(3) of the Customs Act, a Clearing Agent is deemed to be the principal of the goods imported and cleared on presentation of documents by the Clearing Agent.
19. He has submitted that the applicant is instrumental in causing huge loss to the State Revenue, through the scandalous transaction and, therefore, he is not entitled to be released on bail.
20. ' In support of his contention that applicant is entitled to be released on bail, Mr. Ilyas. Khan has placed reliance on the following judgments:-
(1) Salooka Steels Ltd. v. Director-General Coast Guards of Pakistan PLD 1981 Quetta 1, (2) Saeed Ahmed v. The State 1996 SCMR 1132, (3) Muhammad Shafique v. State 1999 PCr.LJ 830, (4)
21. Muhammad Mustaqeem v. State 2004 YLR 68.
22. ' In the case of Salooka. Steels Ltd. (supra), an order under sections 168 and 171 of the Customs was assailed through a Constitution petition, on the ground that the Coast Guards have no jurisdiction to proceed with the matter, as the territorial jurisdiction of the Coast Guards does extend to goods imported in Pakistan, within the limits of various ports. The contention was accepted and it was held that the limits of the ports were specifically excluded from the coastal areas, and therefore, the Coast Guards have no jurisdiction. The petition was allowed and the show-cause notice issued by the Coast Guard was held to be without lawful authority. It is obvious that the facts and circumstances of the cited case are entirely different from the facts requiring consideraon in the present bail applications. The judgment is not relevant at all.
23. ' In the case of Saeed Ahmed, a retired Cashier of the Police Department was, granted bail by the Honourable Supreme Court, mainly for the reasons that initially the accused was alleged to have committed offences under sections 406, 420, 468 and 471, P.P.C. And subsequently, section 409, P.P.C. Was added with mala fide intention in order to bring the case within prohibitory clause of section 497, Cr.P,C., and that the case entirely depended upon documentary evidence. The facts of this case are also distinguishable from the facts of the present case and as such the ratio of cited order is not attracted.
24. ' In the case of Muhammad Shafique (supra) the relevant facts were that pursuant to spy information by the Customs officials that heroin powder in a shipment of leather bags was arranged to be smuggled abroad through unaccompanied 'baggage. The Clearing^Agent, who presented Shipping Bill was arrested. The heroin was detected and recovered. Owner of the goods was also present and was also arrested. On his pointation, a Carpet Dealer was arrested and on his pointation, two foreign nationals were also arrested. The Clearing Agent, was convicted and remaining accused persons were acquitted. While hearing appeal against the conviction preferred by the Clearing Agent, it was held that the Clearing Agent presented a Shipping Bill and did not produce case property to the Customs Authorities. It was observed that, the Clearing Agent had no domain over the property. It was also observed that, "while linking a Shipping Agent with the offence and acquitting the exporter is beyond our comprehension". The appeal was allowed and the conviction and sentence was set aside. This judgment is also of no help to the applicant, first, for the reason that the cited judgment was delivered in appeal in which in-depth scrutiny is to be made by the Court, while considering a bail plea the Court is not supposed to enter into deeper appreciation of the facts, more particularly when evidence has not been recorded at trial.
25. Secondly, in the cited case all the persons to whom any role was attributed were available while in the present case, except the applicant no person is traceable. I am, therefore, of the view that this judgment is also of no help to the applicant.
26. ' The last judgment in the case of Muhammad Mustaqeem is by a learned Single Judge of Lahore High Court. In this case under Emigration Ordinance, 1979, the bail was granted on the ground that alternate sentence of fine is provided in two sections and therefore, the offence would be out of prohibitory clause. I am not persuaded to agree with the view held by the learned Single Judge of Lahore High Court, that if alternate sentence is also provided in law then the offence providing punishment for 14 years does not fall within the prohibitory clause of section 497(1), Cr.P.C.
27. Secondly, in the cited case the alleged offence was punishable with imprisonment for a term which may extend to 14 years or with tine or with both.' While the punishment provided under clause (8) of section 156 of the Customs Act, 1969, is 14 years and fine and if the Special Judge in his discretion so orders, also to whipping. Thus, there is marked distinction in the sentence provided under section 22 of the Emigration Act, which provided punishment with imprisonment which may extend to 14 years or with fine or with both and under the law relevant in the present bail applications. The punishment provided in the present is imprisonment for a term not exceeding 14 years and fine.
28. Thus, in the present case the sentence of fine is not by way of alternate sentence but it is in addition to the sentence of imprisonment.
29. ' I am of the view that the offence alleged in the present bail applications pertains to import of smuggled goods on the strength of fake/bogus documents coupled with evasion of State Revenue.
30. The offence, therefore, falls within the realm of white collar crime and is governed by the law laid down by the. Honourable Supreme Court in the case of Imtiaz Ahmed v. State PLD 1997 SC 545.
31. ' In view of the fact that the importers/donees all of whom are ladies are not traceable, the documents on the basis whereof import authorizations were issued have been reported to be fake/forged, the pay orders through which the applicant alleges to have received the amount of duty and taxes have not been produced and the payment has been made by the applicant/Clearing Agent through his Deposit Account, maintained with the Custom House, and Karim Bux through whom the fake/forged documents are alleged to have been received by applicant is not traceable, the .Entire circumstances lead to the presumption at this stage that applicant is himself the beneficiary as alleged by Mr. Iqbal Haider Wahaniwal, learned counsel for the Custom Department. In these circumstances, I am of the opinion that it is not a fit case for bail and consequently, all the bail applications stand dismissed.