1. ' The applicant/accused has been challaned in the Court of learned Special Judge (Customs and Taxation) Karachi along with several other persons for the commission of offences under sections 2(s), 16, 32(1) and (2) and 178 of the Customs Act, 1969, punishable under sections 156(1), 1, 8, 14 and 85 of the Customs Act, 1969.
2. ' The prosecution case against the present applicant is that he is Manager (Operation and Admin)
3. Sialkot Dry Port Trust Karachi. Certain importers imported goods and made misdeclarations to the Customs Authorities. The port of destination was Sumbrial Dry Port, Sailkot and the goods were imported at Port Qasim Karachi. The containers were handed over to Sialkot Dry Port Trust, Karachi, who are (bonded carriers). The applicant as Manager of the Transporters handed over the containers to the truck drivers with direction that they shall hand over their trucks to one Muhammad Sarwar near Bhanse Colony, Karachi, and go to their hotel. They shall return after few hours and then take the containers to the port of destination. The truck drivers were threatened by the applicant that if the directions were not complied with they shall be sacked and it was further told to them that the goods packed in the containers belong to Army and therefore, they were bound to co-operate. In pursuance of the direction, the truck drivers handed over the trailors with the containers. Thereafter the imported goods were taken out from the containers and other goods were stuffed in the containers which were in accordance with the declarations made with the Customs authorities.
4. ' The Directorate General of Intelligence and Investigation, detected this scam and recorded the statements of truck drivers who implicated the applicant with the commission of above offences.
5. ' The applicant submitted bail application before the learned Special Judge (Customs and Taxation) Karachi, who rejected the bail application for the reason that the offence alleged against the applicant is punishable under clause (8) of section 156(1) of the Customs Act, 1969, which provides punishment for 14 years and consequently the offence falls within the prohibited clause.
6. ' Mr. M. Llyas Khan, learned counsel for the applicant has contended that the F.I.R. Was lodged on 10-4-2004 and the interim challan was submitted on 26-4-2004, whereafter no final challan has been submitted before the trial Court. He has further contended that the alleged smuggled goods which were stated to be in the containers at the time of import and which were subsequently stated to be changed were never secured by the prosecution.
7. ' Mr. M. Ilyas Khan, has next submitted that one official of the Sumbrial Dry Port, Sialkot who is also involved in this case, has been released on bail by the trial Court.
8. ' Mr. M. Llyas Khan has further submitted that the interim challan has been submitted stating that the offences have been committed under sections 2(s), 16, 32(1) and (2) and 178 of the Customs Act, 1969 and none of these sections are attracted to the acts allegedly committed by the applicant. He has submitted that section 2(s) of the Customs Act, merely provides a definition of the word "smuggle". Section 16 of the Customs Act, empowers the Federal Government to issue notification in the Official Gazette from time to time to prohibit or restrict the bringing into or taking out of Pakistan of any goods of specified description by air, sea or land. Thus, these two provisions of law are in general terms and do not specify any act or omission which is an offence. So far, the provisions contained in subsections (1) and (2) of section 32 of the Customs Act, 1969 are concerned, they pertain to nusdeclaration or misstatement. According to Mr. Llyas Khan, there is no allegation that the applicant made any mis' declaration as a declaration is to be made by the importer or clearing agent and not by the transporter. Section 178 of the Customs Act, 1969, provides that if any two or more persons in company are found together and they or any of them, have goods liable to confiscation under this Act, every such person having knowledge of this fact is guilty of an offence and punishable in accordance with the provisions of this Act, as if goods were found on such person. He has submitted that the offence under section 178 is punishable under clause 85 of section 156 (1) of the Customs Act, which provides punishment of imprisonment for a term not exceeding two years, with the result that the offence alleged against the applicant is bailable.
9. ' On the other hand, Mr. S. Mahmood Alam Rizvi, learned Standing Counsel for the State has opposed the bail application for the reason that the applicant was instrumental in the entire scandal, as he knew that the prohibited goods were imported and in order to screen off the offence and facilitate the evasion of customs duty, as well as avoid the confiscation of goods, got the containers tampered with on way to Sialkot Port. In pursuance of the active collaboration of applicant the containers were tampered with, the prohibited goods were taken out and other goods were stuffed in the containers, conformable to the declaration made to the customs officials. The main contention of Mr. S. Mahmood Alam Rizvi, is that the applicant Munawar Hussain Talat has played a pivotal role in the commission of offences committed by the importers and has actively participated in evasion of customs duty. Mr. S. Mahmood Alam Rizvi was asked to point out, the provision of law under which the acts committed by the applicant are punishable. Mr. S. Mahmood Alam Rizvi, after doing a bit of research in Court, came with the plea that the offence alleged against the applicant is punishable under Clause 89 of section 156 (1) of the Customs Act, which provides that if any person without lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing, or in any manner dealing with smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods, shall be punished with imprisonment for a term not exceeding six years and to a fine not exceeding ten times the value of such. Goods and if the Special Judge in discretion so orders also to whipping.
10. ' After a careful consideration of the contentions raised by the learned Advocates for the parties and the material placed on record, I am of the view that, prima facie the offence alleged against the applicant is punishable under section 156(1) (89) of the Customs Act. Though this section is not mentioned either in the F.I.R. Or in the interim challan but it is of no consequence, because the ignorance of any Investigating Officer or even any Court shall have no bearing on the provision of law. The Court' is required to examine the substance of the matter and then to ascertain, as to on the basis of material available on record, whether any offence has been made out and if so punishable under which provision of law. I am of the opinion that the learned trial Court has incorrectly observed that the offence alleged against the applicant is punishable under clause 8 of section 156(1), which is punishable with 14 years imprisonment.
11. ' After a tentative assessm ent to the effect that the offence alleged against the applicant is punishable under section 156(1) (89) of the Customs Act, which provides a punishment for six years and to a fine not exceeding ten times the value of such goods, the question for consideration is, whether the applicant is entitled to be released on bail? While dealing with the offences punishable under the Customs Act, it is to be kept in view that the Customs Act, is a special law and it contains certain special provisions which are not available in general law. For instance, it is provided in section 156(1) (89) of the Customs Act, that the burden of proof lies on the accused and this provision is distinct from the provisions contained in the general law that the burden of proof is always on the prosecution. Keeping in view this specific provision, the general principles as applicable to the grant or refusal of bail, cannot be adhered to.
12. ' The rulings of the superior Courts have laid down the principle that, if an offence which does not fall within the prohibited clause of section 497, Cr.P.C. Normally the accused shall be released on bail and the refusal shall be exception. However, this principle is not applicable to the present case, which falls within the category of white collar crime. The Courts cannot remain oblivious of the fact that the instances of evasion of the State revenue is increasing at alarming rate and consequently in the matter of granting bail, no liberal view can be taken. Notwithstanding, the fact that the punishment provided in clause 89 of the Customs Act 156(1) is six years, it appears from the material brought on record that the applicant is alleged to have been involved in series of offences and such tendency is to be curbed, as it is likely to affect the national economy.
13. ' In such cases the Honourable Supreme Court has laid down the principles, in the case of Imtiaz Ahmed v. The State PLD 1997 SC
545. The Honourable Supreme Court observed that, "by now it is a well-settled proposition of law that even in respect of offences not falling under prohibitory clause of section 497, Cr.P.C. The Courts may decline to admit an accused to bail if there exists a recognized exceptional circumstances".
14. ' The Honourable Supreme Court further observed as follows:-- "I may observe that a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail. In my view, the above category of the offenders belong to a distinct class and they qualify to be treated falling within exceptional circumstances of the nature warranting refusal of bail even where maximum sentence is less than 10 years R.I. For the offence involved, provided the Court is satisfied that prima facie, there is material on record to connect the accused concerned with the commission of the offence involved.
15. ' The Courts should not be oblivious of the fact that at present Pakistan is confronted with many serious problems/difficulties of national and international magnitude, which cannot be resolved unless the whole Pakistani nation as a united entity makes efforts. The desire to amass wealth by illegal means has penetrated in all walks of life. The people commit offences detrimental to the society and the country for money."
16. ' For the foregoing reasons I am of the opinion that, it is not a fit case for bail at this stage and consequently, the bail application is rejected.
17. ' Before parting with this order, I would like to clarify that all the observations made in this order are tentative in nature and shall have no bearing on the final disposal of the case and the learned trial Court shall frame the charge, notwithstanding, any observations made in this order, on the basis of material placed before it and shall decide the case accordingly.
18. ' Mr. M. Ilyas Khan has pointed out that the accused is in custody from 10-4-2004 and the learned trial Court is not proceeding with the case, as no final challan has been submitted.
19. ' A perusal of the Interim challan shows that the learned trial Court has already taken cognizance on the interim challan and has issued non-bailable warrants against the absconders, while remanding the present accused in custody. If no final challan has been submitted so far, the trial Court is directed to treat this Interim challan as final challan and proceed with the case. The proceedings against the absconding persons may be separated, after issuance of proclamation under sections 87 and 88, Cr.P.C. And making compliance of the provisions of law. This entire process should be completed within a period of two months and thereafter the case of the absconding accused persons shall be kept on dormant file and evidence shall be recorded under section 512, Cr.P.C. The charge shall be framed against the present applicant and the other accused persons, if any present before the Court within three months and the case shall be concluded within six months from today.