1. ' MIAN MUHAMMAD NAJAMUZ-ZAMAN, J.---Petitioner, Muhammad Amin Magsi has filed Crl.
2. Miscellaneous No.3686-B of 2005 in case F.I.R. No.20 of 2005 dated 19-3-2005, Crl. Miscellaneous No.3687-B of 2005 in case F.I.R. No.11 of 2004 dated 29-12-2004, Crl. Miscellaneous No.3688-B of 2005 in case F.I.R. No.13 of 2005 dated 16-1-2005, Crl. Miscellaneous No.3689-B of 2005 in case F.I.R.
3. No.15 of 2005 dated 7-1-2005, Crl. Miscellaneous No.3690-B of 2005 in case F.I.R. No.10 of 2004 dated 29-12-2004, Crl. Miscellaneous No.3691-B of 2005 in case F.I.R. No.7 of 2004 dated 29-12-2004, Crl.
4. Miscellaneous No.3692-B of 2005 in case F.I.R. No. 8 of 2004 dated 29-12-2004, Crl. Miscellaneous No.3693-B of 2005 in case F.I.R. No.19 of 2005 dated 17-3-2005, Crl. Miscellaneous No.3694-B of 2005 in case F.I.R. No.17 of 2005 dated 4-2-2005, Crl. Miscellaneous No.3695-B of 2005 in case F.I.R. No.16 of 2005 dated 10-1-2005, Crl. Miscellaneous No.3696-B of 2005 in case F.I.R. No.12 of 2005 dated 6-1- 2005 and Crl. Miscellaneous No.3697-B of 2005 in case F.I.R. No.14 of 2005 dated 6-1-2005, seeking pre-arrest bail. All the said F.I.Rs. Have been registered at Police Station I and P Branch, Customs House, Sambrial, for the same offences under sections 156(1) 11, 12, 14, 14-A, 17, 77 and 82 read with sections 21, 26, 32, 32-A and 39 of the Customs Act, 1969 and S.R.O. 414(i)/01 dated 18-6-2001. All these petitions are being disposed of by this single order.
2. Learned counsel for the petitioner submits that no case under section 32 of Customs Act is made out and case of the petitioner does not fall under section 32-A of the ibid Act because this section was incorporated after the commission of this offence and the same cannot be applied retrospectively. Further submits that in most of the cases after completing the investigation challans have already been submitted before the trial Court and petitioner is facing the trial; petitioner has been joining the investigation and nothing is to be recovered from him, he is no more required for further investigation; offences allegedly committed by the petitioner are not only bailable but also compoundable. Learned counsel while relying on unreported case i.e. Crl.
5. Miscellaneous No.3468-B of 1995 titled "Muhammad Tasleem v. The State" decided on 30-8-1995 submits that the offences allegedly committed by the petitioner are bailable offences. Submits that petitioner never manipulated the relevant record as alleged in the F.I.Rs. And in fact it was the officials of the Customs Department who had made false entries in the relevant record and thus the amount more than to their entitlement was withdrawn by the importers; the entire case of the prosecution is based on the documentary evidence which is in the custody of the Investigating Agency, thus there is no possibility of tampering with the same by the petitioner; petitioner has already been retired from his service who is more than sixty years of age.
6. ' Conversely learned counsel for the Customs Authorities while opposing these petitions submits that the offences committed by the petitioner fall within the purview of section 32 as well as subsection (77) of section 156(1) of the Customs Act and the same are non-bailable offences.
7. Submits that sufficient evidence has been brought on record to connect the petitioner with the commission of offence; the defrauded amount is yet to be recovered from the petitioner. In support of his arguments, learned counsel has relied upon 1996 PCr.LJ 2063.
3. Heard. File perused.
8. Petitioner was Chief Accounts Officer in Collectorate of Customs Sambrial, Sialkot and allegation against him in the said F.I.Rs. Is that he in connivance with the officials of the treasury branch and the company (mentioned in each F.I.R.) had issued cheques for the payment of rebate of custom duty in excess to the entitlement of those companies and thus had caused a loss of million of rupees to the government exchequer.
9. ' In addition to the said cases C petitioner is also involved in case F.I.R. No.9 of 2004 dated 29-12-2004 registered at Police Station I and P Branch Customs, House, Sambrial. After his arrest in this case the application of the petitioner for the grant of post-arrest bail i.e. Crl. Miscellaneous No.1508-B of 2005 was allowed by this Court on 22-3-2005. At the relevant time the F.I.Rs. In which the bail is being sought had already been registered but the agency never bothered to arrest the petitioner in those cases and after the grant of post-arrest bail to the petitioner by this Court the agency started proceedings in these cases to effect the arrest of the petitioner. This conduct on the part of the agency itself is sufficient to show the mala fide of the prosecution.
10. ' None of the offences allegedly committed by the petitioner are punishable with more than three years' R.I. And do not fall within the prohibitory clause of section 497, Cr P.0 I have also observed that challans in nine matters out of the said cases have already been submitted before the trial Court where the matters are ripe for trial and petitioner is no more required for further investigation in those cases. In this view of the matter this is not the proper stage to dilate upon the factual aspect of the cases. With regard to rest of the cases i.e. F.I.R. No.7 of 2004 dated 29-12-2004, F.I.R. No. 8 of 2004 dated 29-12-2004 and F.I.R. No.19 of 2005 dated 17-3-2005, the total amount involved is Rs.8,76,000 (eight lac and seventy six thousand). Admittedly the said amount is to be recovered from exporters who are beneficiaries and petitioner is required only to provide information to the agency in this regard. It is also apparent from the record that the entire case of the prosecution is based upon the documentary evidence which is in the there is no possibility of tampering with the same by the petitioner. Petitioner has already been retired from his service and he is more than sixty years of age, sending him behind the bars would not serve any purpose as nothing is to be recovered from him. Admittedly in the said three cases petitioner is required to convey the information to the agency to get hold of the exporters from whom- the amount can be recovered and this exercise can be very well be done even if the petitioner is admitted to bail. The agency would be at liberty to move for the cancellation of the bail if the petitioner refuses to join the investigation or does not provide the information as required by the agency. Accordingly these petitions are allowed and ad interim pre-arrest bail already granted to the petitioner vide order dated 18-5-2005 in all the cases mentioned in para.1 of the order, stands confirmed against the same surety bonds.