' SYED ZAWWAR HUSSAIN JAFRI, J.---The applicant Farooq-e-Azam Cheema is facing trial in Crime No,Appg36/DCl/2004 in the Court of learned Special Judge (Customs and Taxation) Karachi for an offence punishable under section 156(1) (51) (52) (53) (54) (58) (59) (61) (62) (89) & (90) of the Customs Act, 1969. The bail application on behalf of the applicant was filed in the trial Court but the same was dismissed vide order dated 2-9-2004 by the learned Special Judge (Customs and Taxation) Karachi. The applicant has preferred application before this Court for seeking bail in the abovementioned crime on similar grounds.
2. The prosecution case is that the staff of the Directorate of Intelligence received information that defecto owner of Messrs Lakhani Company P.W.1. No,DP10/95 Karachi is involved in the illegal removal of assorted brands of liquor from the bonded warehouse without (D.D) ExhBond Bill of Entry or GD Shipping Bill and disposes these goods in the local market worth millions of dollars. In pursuance of above information surveillance was mounted on the M/s Lakhani bonded warehouse situated at Clifton Karachi.
3. On 3-8-2004 the Directorate General of Intelligence and Investigation (Custom and Excise), Karachi lodged the F.I.R. At the complaint of one Abdul Rasheed against Stephen Francis son of Francis Dannial owner of Messrs Lakhani Diplomatic Bond Karachi, Aijaz Ahmed Khan son of Muhammad Azam Khan and Zahid, Manager of Messrs Lakhani Diplomatic Bond Karachi as absconders being Crime No,M-883/Dci/Seiz/H/04 dated 4-2-2004, the said investigating officer seized Heineken Beer (made in Holand), 100 cartons plain each carton containing 3 small cartons each of 24 cans total 7200 cans of 500 ml each valued at Rs,3,50,000 approximately. The said Investigating Officer also seized Mazda Truck bearing Registration No,LHJ-3234 valuing Rs,6,00,000.
4. The preliminary investigation was conducted and the statement of the chowkidar namely Sher Bahadur and Gul Sher Khan were recorded who disclosed that the Manager of the bonded warehouse namely Zahid arranged re-packing of the goods two days ago and on 2-8-2004 at 1100/1130 hours the Manager after bringing of hired Mazda Truck opened the locks/seals of the bonded warehouse and personally supervised loading of cartons on the Mazda truck bearing Registration No,LHJ 3234 in the absence of the concerned customs staff. The seized truck was brought to the Directorate for detailed examination and another team of the Directorate staff raided the same bonded warehouse where inquiry was made from the applicant/accused as he was examining officer incharge of bonded warehouse. On inspection of the bonded warehouse the outer grill door was locked and sealed with plain adhesive tape having no signatures of anybody whereas the inner door of the actual godown was found locked with two locks without any seal. The Mushirnama was prepared at the site. During the interrogation the applicant/accused Farooqe- Azam Cheema disclosed that the Bonder's office is located at Khayaban-e-Touheed Phase-V. DHA Karachi which was immediately raided but the same was found locked. It was also disclosed that the defecto owner of the bonded warehouse are Riaz Malik and Muhammad Zahid. Muhammad Zahid arranged re-packing of the goods and brought the Mazda truck and supervised the loading of cartons on the said truck. It was also disclosed by the applicant/accused that he used to clear thousand of cartons of assorted branded of Liquor without filing of Ex-Bond Bill of Entry as well as shipping bill and handed over these cartons to the customs staff posted on the different Exit Gates without any acknowledgement for them. The investigating officer verified the account of applicant/accused which was about Rs,Six Million in the Allied Bank of Pakistan in Account No1321-3 maintained at Khayaban-e-Badar Branch D.H.A., Karachi. He was also having credit cards and two other cards meant for various purposes which shows that he is hand in glove with Malik Riaz and Muhammad Zahid defecto owner and Manager of the Diplomatic Bond Messrs Lakhani and Company. After due investigation the interim charge sheet was filed in the Court of learned Special Judge (Customs and Taxation), Karachi. Hence this application.
5. Mr. Suhail Muzaffar learned counsel for applicant/accused has contended that on 4-8-2004 F.I.R.
No,M-883/Cei/ Seiz/ H/04 was registered on the allegation that 7200 cans of 500 ml Heineken Beer (made in Holland) was seized by the staff of Directorate General of Intelligence and Investigation (Customs and Excise) Karachi from the truck but the truck driver was not arrested. In F.I.R. The owner of the Diplomatic Bond Karachi along with two others were named and accused persons shown absconders. The prosecution instead of filing interim or final challan in the above- mentioned crime registered another F.I.R. For the same subject matter being F.I.R. No,Appg- 36/DCl/2004 and arrested the applicant/accused who was working as examining officer. It is further argued that the applicant/accused is highly educated as Ph.D. Degree holder from the Karachi University in Public Administration. The allegation against him is defamatory. It is also argued that recording of second F.I.R. Is illegal as the name of the applicant/ accused was not disclosed in the earlier F.I.R. In the second F.I.R. Which reflects the mala fides on the part of complainant to involve the applicant/ accused in this case. Mr. Suhail again argued that on 7-3- 2005 after hearing learned counsel for both the parties learned Standing counsel was directed to prepare comments on the following points:--
(1) A chart showing the full details and description of the goods shown in the In-Bond Bills of Entry and the goods found in the Bonded Warehouse along with the comparison of discrepancy if any.
(2) The full details and descriptions of the goods shown in the Er-Bond Bills of Entry and the goods removed from the Bonded Warehouse and the discrepancy if any.
(3) The dates on which the goods were allegedly removed from the Bonded Warehouse without filing bill of entry.
(4) If at any time the seals were found to have been tampered with, whether any action was initiated in accordance with the law by the applicant or any other customs official.
6. The Investigating Officer on the basis of direction of this Court has provided the relevant information which is reproduced herein below:--
(1) As per record of the bonds register and PRAL's customs data, 63 consignments (statement at Annexure-I) were in-bonded under claim of S.R.O.-783(10/98 dated 7-6-1998 by Messrs Lakhani and Co. Since December, 1999 till August, 2004 as ship stores for subsequent supply to various ships. The scrutiny of record revealed that during this period a total of 472 Nos. Of Shipping bills were filed for supply of goods imported against these 63 consignments as ship stores. However on investigation it was found that 299 shipping bills (Annex-II) entered in the Bond's ledger were actually filed by other exporters and as such, no ex-bonding could have taken place against these shipping bills. Similarly, no ex-bonding could have been allowed against the remaining 173 shipping bills (Annex-III) which were filed by M/s. Lakhani and Company but the same were never processed/ completed. In fact, all the record maintained at the Port's Gate (Export Collectorate)
Division Office which cover ship stores supplies do not included any of these 173 shipping bills.
Furthermore the relevant shipping companies have already denied (Annex-IV) having received any ship stores from M/s. Lakhani and Company on their vessels against these 173 shipping bills. In fact, the Shipping Bill No,30044 dated 29-8-2003 presented by the learned counsel for the bail of arrested E.O. Has also been found to be fake and forged. Thus, all the goods ex-bonded against 472 shipping bills have been removed fraudulently by the bonder with the connivance of the E.O.
Incharge, posted at the bond. The aspect of removal of bond goods against fake Exemption Certificates is however still under investigation.
2. During stock taking carried out by staff of Directorate General, the following irregularities/discre- pancies were found in respect of Messrs Lakhani and Company of which the arrested E.O. Was incharge.
(a) Bonded goods over found lying in the bond in a haphazard manner, Bin Cards were not displayed on lots which would indicate the bond Execution No,IGM No, and date. Index No, Vessel's name, in-bonded quantity, Ex-bonded quantity and balance quantity, which was otherwise mandatory to be properly maintained for the warehoused goods by the E.O. Incharge.
(b) As per licence (Annexure-V) the warehoused/packages should not exceed 4000 in number, whereas, during stock taking, more than 11000 packages were found.
(c) The licence of diplomatic bond has been issued under section 13 of Customs Act, 1969, whereby the ceiling of duty/taxes chargeable on the bonded goods has been fixed up to Rs,2.5 millions at a given time. However, the available stock was found in very huge quantity involving duty/taxes to the extent of Rs,73.9 millions.
(d) The bonder also dumped food staff, cigarettes and soft drinks in a room adjacent with its office which is outside the notified premises and were in easy access for irregular removal of the same from the premises.
(e) Most of the liquors found of old lots which remained in the warehouse in violation of section 98 of Customs Act, 1969 beyond the permissible period. The E.O. Incharge was duty bound to take appropriate action under the law.
(f) Two hidden rooms were also found within the boundary wall of the said bond. The entrance of these rooms were blocked/concealed with heavy old and used furniture. The search of these rooms were carried out and 4777 bottles of assorted brand whisky/liquors and 84 crates of foreign origin beers were recovered. No identifications regarding its legal importation was found. Presence of liquor in these rooms was a clear indicator regarding dumping of smuggled liquor in the diplomatic bonds with a motive to get legal coverage and safe guard these contraband goods from the eyes of law enforcing agencies for subsequent bootlegging perorations. The E.O. Incharge is responsible for any such irregularity and should have taken cognizance of this.
(g) Eleven rooms found in bonded premises of the said bond as against seven room as is evident from autographic endorsement on the face of the blue print of the licensed premises. This violation is also attributable to the connivance of the E.O. Incharge who ignored it.
(h) It is pertinent to mention that the applicant or the E.O. Incharge who is a responsible Customs officer Has never reported any discrepancies despite visible violations rather they have facilitated annual renewal of the licence of the bonded warehouse.
3. The entries made in the bond's ledger (Annex-VI) against ex-bond G/D's in turn processed against fake/dummy shipping bills are indicative of the dates on which bonded goods including liquor was either removed or balanced for removal at an appropriate time keeping in view the local demand. One instance is the removal of 7200 cans of bear on 2-8-2004 in respect of which no specific bill of entry was filed.
4. In view of the above stated facts, the arrested E.O. As well as other customs officials not only failed to discharge their duty in terms of the prescribed procedure/law but they also actively connived with Messrs Lakhani and Company for fraudulent and illegal removal of bonded goods, especially liquor. So far nothing on record is available, whereby the arrested E.O. Or any other customs official had reported tampering of seals or any other violation of Messrs Lakhani and Company, prior to 2nd August, 2004, when the raid was conducted by the Directorate.
' Conclusion ' The arrested E.O. In connivance with Messrs Lakhani and Co. Had been operating a smuggling den instead of diplomatic bonded warehouse for maintaining illicit distribution network of alcohlic drinks throughout the country. Grant of any relief to him at this stage would jeopardize case of the State against the entire racket of illicit business in contrabands. Sdi (MUHAMMAD SADIQ)
INVESTIGATING OFFICER DIRECTOREATE GENERAL INTELLIGENCE & INVESTIGATION (CUSTOM AND EXCISE), KARACHI
7. Learned counsel for applicant/ accused in view of the information filed by the Investigating Officer has contended that no credit card was recovered from the applicant/accused and the allegation of maintaining bank account by the applicant/ accused is baseless as the applicant/accused had arranged money through his family to show transaction in his account in order to obtain British Visa. The brother of the applicant/accused had filed affidavit that the said money was given by him to the applicant/accused for proceeding abroad for his post of Ph.D.
Course at Caledonian University, Glasgow where the applicant/ accused was accepted unconditional offer. No role of misconduct has been assigned to the applicant/accused. The applicant/ accused was posted as examining officer in Lakhani Bond from 1-1-2004 to 13-4-2004 and during this period not a single consignment left the Bond. The applicant/accused was neither gate incharge nor he was dealing with boarding of the goods on the ship stores supplies to ship were duly accounted for and the remittances were duly received by the bonders as per information received by the applicant/ accused, therefore, responsibility cannot be fixed upon the applicant/accused of any act of bonder or an employee of the bonder if done outside bond area.
The applicant/ accused was arrested on 13-8-2004 but he was produced in the Court of law on 16- 8-2004 which shows that the applicant/ accused was kept under the wrongful confinement for more than 24 hours. It is further urged that the staff posted after and before the applicant/accused at the Diplomate Bond has neither questioned nor arrested as per charge sheet and even the names of customs staff have yet not been ascertained. It is further urged by the learned counsel for applicant that during the stock taking inspection by the staff of Directorate General Intelligence and Investigation (Customs and Excise), Karachi several irregularities/discrepancies were found but no action was taken by them as the Customs Officials were found involved and matter was not reported despite visible violation on the contrary have extended favour in renewal of the licence of bonded warehouse. It is further argued that Messrs Lakhani and Company was found in operating a smuggling den instead of diplomatic bonded warehouse for maintaining illicit distribution network of alcohlic drinks throughout the country. Mr. Sohail Muzaffar learned counsel for applicant in support of his arguments has relied on 1989 PCr.LJ 828 (Irshad v. The State), PLD 2002 SC 509 (Hakim Mumtaz Ahmed v. The State), 1996, SCMR 1132 (Saeed Ahmed v. The State), 1969 SCM R 233 (Haji Wali Muhammad v. The State). Conversely Mr. M. Shafi Muhammadi learned State counsel has opposed this application and has submitted that the applicant has signed register as he was posted as examining officer in Messrs Lakhani bonded warehouse. He supplied liquor, food stuff and cigarettes to diplomatic and established stores for crew. The applicant was operating a bank account and he was living beyond his ostensible means which, prima facie, established that the applicant has committed an offence punishable under section 156(1) (51) (52) (53) (54) (58) (59)
(61) (62) (89) & (90) of the Customs Act, 1969.
8. Mr. S. Mehmood Alam Rizvi learned Standing counsel has also opposed this bail application and adopted the arguments advanced by Mr. M. Shafi Muhammadi.
9. I have heard the arguments of learned counsel for the respective parties, examined material on record and the case-law cited at bar.
10. Admittedly, an F.I.R. No,M-883! Die/Seiz/H/04 dated 4-8-2004 was registered by the staff of Directorate General of Intelligence and Investigation (Customs and Excise), Karachi with the allegation that 7200 cans of beers of foreign origin were seized by them from a truck and the person who was transporting the same was not arrested, whereas, occurrence in the said F.I.R. Was shown to have been taken place on 2-8-2004, matter was reported on 3-8-2004 and the F.I.R. Was recorded on 4-8-2004. In this F.I.R. The owner of Diplomatic Bond along with two others were named as accused persons but they were shown as absconders. In the F.I.R. No final report was filed but another F.I.R. For the same subject-matter as Crime No,Appg-36/DCl/2004 was registered and the present applicant being examining officer was arrested. It was contended by the learned counsel for applicant that he was delivering lecture in the Preston University, Glasgow. The applicant is Ph.D. In Public Administration and he was prevented to proceed abroad in his post of Ph.D. Course at Glasgow. Mere high degree in education cannot be presumed as licence to extend the benefit of bail but it is to be considered the acts of accused person involved in crime. At present there is no material on record that who was defecto owner of Messrs Lakhani bonded warehouse.
The applicant was remained posted as examining officer in the said Messrs Lakhani bonded warehouse from 1-1-2004 to 13-4-2004 and during this period there was no allegation that a single consignment left the bonded warehouse. As per F.I.R., on the day of arrest of applicant there were allegations against Malik Riaz and Muhammad Zahid that they were working as defecto owner and Manager of the said Lakhani bonded warehouse but the name of customs officials have not been shown in the F.I.R. The surveillance was mounted on the confirmation of bonded warehouse by the officials. They on 2-82004 a loaded Mazda truck found leaving premises Messrs Lakhani bonded warehouse. The customs staff followed the said Mazda Truck and intercepted the same at Old Truck Stand Mauripur near Crown Cinema, the driver of truck was asked to declare the contents of cargo to supply supporting documents pertaining to the loaded goods. It was informed by the truck driver namely Arshad Iqbal that he was hired by the persons for transportation of goods from the warehouse to Mauripur Truck Stand, Karachi. He could not produce any relevant paper. It is not clear that customs authority stopped the truck from the warehouse and allowed the Mazda truck driver to carry foreign origin beers containing in the cartons loaded in the Mazda truck. At present Malik Riaz being defecto owner of the Messrs Lakhani Diplomatic bonded warehouse and Muhammad Zahid Manager of the same were shown as absconding accused. The trial Court has to initiate proceedings against absconding accused and the trial of the applicant/accused will take sometime. At this stage there is allegation against applicant/accused that he was found involved in abetment and connivance with absconding accused Malik Riaz and Muhammad Zahid in illegal removal of the assorted brand liquors and supplying it in local market. In case of Irshad v.
The State 1989 PCr.LJ 828 it was held as under:-- ' The applicants are on interim by my brother Saeed-uzZaman Siddiqui, J. Since 10th August, 1988, and they have not abused the concession extended to them. It was obviously for this reason that Mr. Muhammad Akmal Wasim, learned counsel for State has also raised no objection to the confirmation of to all the three applicants. The interim to the applicants, therefore, stands confirmed on the same terms and conditions.
11. The BASIC question which must be present in the mind of Court, while considering question of bail, is whether grant of bail is necessary in the interest of justice. The general policy of law is to allow bail rather then refuse it. As observed in Manzoor v. The State (PLD 1972 SC 81), the bail is not to be withheld as a punishment. At page 84 the Honourable Supreme Court has observed as under:-- ' It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable ground appears to exist to disclose their complicity. The ultimate conviction' and incarceration of a guilty person can repair the wrong caused by a mistaken relied of interim to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run.
12. In view of the dictum in the above cited case-law, I am of the view that the applicant/accused has made out good case for grant of bail. Consequently, the concession of bail is granted to the applicant/accused subject to furnishing surety in the sum of Rs,5,00,000 with P.R. Bond in the like amount to the satisfaction of trial Court.