1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The facts and circumstances leading to all the four bail application are almost common, with some variation in Special Criminal Bail Application No,39 of 2006, which shall be highlighted presently. All the four bail applications have been argued together by the learned Advocates for the parties and are disposed of by this common order.
2. ' Succinctly stated the relevant facts in Special Criminal Bail Application No,36 of 2006 are that the Intelligence Officer, Directorate of Intelligence and Investigation (Customs and Excise) Karachi recorded an F.I.R. On 31-3-2006 bearing No,Appg-12/DCl/2006, against the applicant Raja Muhammad Zarat Khan, Partner/Proprietor/Director/ Associate of Messrs Business International, Messrs B.S. Enterprises and Messrs Early Morning Textile Mills, as well as against Messrs Moosa Abdullah, Clearing and Forwarding Agents, Khalid Pervaiz, Examining Officer, East Wharf, Zulfiqar Ali, Appraising Officer, East Wharf, Asad Alam, Principal Appraiser, East Wharf, Collectorate of Customs (Export) Karachi and others whose names were to be ascertained in the investigation. The relevant facts disclosed in this F.I.R. Were as under:- "A credible information was received by the Directorate General, Intelligence and Investigation (Customs and Excise), Karachi, that Raja Muhammad Zarat Khan son of Makhan Khan, Chairman Messrs Bawan Shah Group of Companies Karachi, along with his other associates in crime with the active connivance of concerned examination staff of Collectorate of Customs (Exports), East Wharf Karachi, is involved in claiming inadmissible customs Rebate and misuse of DTRE scheme by way of phony and fraudulent exports of leather jackets and 100% Polyester Printed Ladies Suits and is causing colossal loss to the State Exchequer.
3. ' In pursuance of aforesaid information, a team of officers of Directorate was deputed to monitor the export consignment of Messrs Bawan Shah Group of Companies Karachi. The constituted team on 29-3-2006, detained Container No, IRSU-427256-5 (1 x 40ft) at East Wharf Karachi for re- examination, whose Shipping Bills/GDs No,KEXP-106072, dated 27-3-2006, declaring Cow Analine Leather Jackets (67 Packages) weighing 3745 Kgs, valuing Rs, 20,799,533, KEXP-106070, dated 27-3- 2006, declaring Sheep Analiie Leather Jackets (83 Packages) weighing 4650 Kgs, valuing Rs,25,831,496, and KEXP-106071, dated 27-3-2006, declaring 100% Polyester Printed Ladies Suits (Fabric total MTR 118195) WT. 720-730 GMS per suits DTRE No,KSH-23-07-0010, dated 23-7-2005 (176 Packages)weighing 17140 Kgs., valuing Rs,8,812,830 were filed by Messrs Moosa Abdullah, (CHAL No,2060), Clearing and Forwarding Agent, Karachi. The said consignments were declared as stuffed in Container No, IRSU-427256-5, (1 x 40ft) having Seal No,007592. All the aforesaid three consignments were declared to be consigned to Messrs Ravian Tarabar International Transport Co.
4. Bandar Abbas, Iran. The aforesaid consignments were duly examined and allowed loading by the concerned examination staff of Collectorate of Customs (Export), East Wharf, Karachi.
5. ' Subsequent, to the detention of aforesaid container, the Collector of Customs Exports, Customs House, Karachi was requested vide this Directorate General' letter C. No, Appg-12/DCl/2006, dated 30-3-2006 to intimate the concerned Clearing Agent/Exporters and depute Export Collectorate Staff for joint examination of the detained container on 31-3-2006. However, on 31-3-2006, neither the Exporters nor the Clearing Agent joined the process of examination. The staff of Directorate and Collectorate of Customs (Export), East Wharf, Karachi, on 31-3-2006, at 1100 hours, at Irani Shipping Line Terminal, TR-14 (Over Flow), East Wharf, Karachi, in presence of two witnesses namely Syed Muhammad Akhtar, Supervisor Messrs Friends Corporation Stevedores (Pvt.) Ltd. East Wharf Karachi and Mr. Noor-ul-Amin, Operation Assistant of Messrs Ocean Express Agency Pvt. Ltd., Karachi, de-sealed the aforesaid container and jointly carried out detailed re-examination of the container.
6. ' Upon joint re-examination, of the Container No,IRSU-27256-5 (1 x 40ft), blended/cotton fabrics/cloth, Pakistan origin of assorted types/colours/sizes measuring 129,900 meters was recovered instead of declared Leather Jackets and 100% Polyester Printed Ladies Suits. Detailed inventory of the goods recovered was prepared on the spot duly signed by the witnesses and concerned officers of Directorate and Collectorate of Customs (Export), East Wharf, Karachi. The representative samples i,e, one each than/roll were drawn for lab test and Court exhibits, from the said container which were also signed by the witnesses and concerned officers of Directorate and the Collector i,e, Upon Physical weighment of Container No,IRSU-427256-5(1 x 40ft), 23590 Kgs.Nets weight was found as against the declared Net weight of 25535 Kgs.
7. ' It is worth-mentioning that neither any carton/bale nor a single piece of declared leather jacket and polyester printed ladies suits was found contained in the said container. Since the representative of Clearing Agent/Exporter deliberately avoided to join the re-examination, therefore, the recovered goods were seized under section 168 of the Customs Act, 1969, for violation of sections 16, 25, 19, 32(1)(2), 32A and 178 of the Customs Act, 1969, read with S.R.O. 450(1)/2001, dated 18-6-2001, S.R.O. 509(I)/97, dated 8-7-1997 and S.R.O. 698(I)/2002, dated 9-10-2002, punishable under sub-clauses (OA), (14), (14A), (77) and (82) of subsection (1) of section 156 ibid, against proper Mushirnama prepared on the spot duly signed by the independent Mushirs and staff of Directorate and Collectorate of Customs (Export), East Wharf, Karaehi. In the absence of Exporters and Clearing Agent, Notice under section 171 of he Customs Act, 1969 was served upon Messrs Friends Corporation Stevedores (Pvt.) Ltd. East Wharf, Karachi. As the shifting of the seized container to the Intelligence State Warehouse was not practicable, therefore, the same after resealing with Seal No,007539 was given under the superdari of Messrs Friends Corporation Stevedores (Pvt.) Ltd., East Wharf, Karachi, in terms of section 168 of the Customs Act, 1969.
8. ' During preliminary investigation conducted on the spot, it was revealed that the Customs Examining staff after detention of the container by the Directorate tampered the examination report adding therein "but this consignment is short shipped, embossing full short shipment seal on Custom copies of the GDs bearing No,KEXP-106072 and KEXP-106070, dated 27-3-2006 whereas Shipping Agent's copies of the same GDs do not mention any short shipment seal. The commission of tampering on the part of Customs examination staff is proved by the fact that all the copies of GD are having "passed in full, stamps and there is no mention of any short shipment of goods by Preventive Collectorate staff posted at the entrance gate. Besides, after allow shipment by the Principal Appraiser Examination, East Wharf, the loading of the said container was allowed by Preventive Collectorates staff. Besides, duplicate copies of the GDs were also submitted to the Shipping Line. The Exporter/Clearing Agent also paid wharfage charges of the container, which clearly established mensrea/mala fide on the part of the Exporters/Clearing Agent and the Customs staff."
9. ' The F.I.R. Further contains that during preliminary investigation it was revealed that the customs examining staff after detention of the container by the Directorate, tempered the examination report.
10. ' Interim challan has been submitted, according to which the applicant was arrested on 4-5-2006 at Islamabad. During the course of investigation it was revealed that the applicant is Chairman of several companies and has misused the licences issued under DTRE scheme, the comprehensive audit whereof was under progress. It was further stated that containers of export and import consignments were not examined by the customs staff and the export was allowed without examining the contents of the container. Fake endorsements were made by the customs officials.
11. On an information furnished by the applicant Raja Muhammad Zarat, 99,026 yards of cloth/fabric illegally disposed of were also recovered. It was further found that 100% Polyester Printed Ladies Suits valuing Rs, 88,12,830 which were allegedly declared to have been consumed were in the container against Shipping Bill No, KEXP-106071 leather goods valuing Rs,4,66,31,029 declared in Shipping Bill No, KEXP-106070 and KEXP-106072, dated 27-3-2006 were not found in the container. It is also stated that but for the interception by the Directorate General a huge loss to the tune of Rs,12,74,740 would have been caused on account of evasion of customs duty and income tax and a further loss of Rs,24,05,195 would have been caused on account of false claim of rebate of customs duty on export of leather goods which was not found in the container.
12. ' The facts in Special Criminal Bail Application Nos. 37 and 38 of 2006 arising out of F.I.R. Nos. Appg- 12-A/DCl/2006 and Appg12-B/DCl/2006, dated 31-3-2006 are that two containers which were cleared for export were intercepted and re-examined. In shipping bills in both the cases declaration was made that 100% Polyester Printed Ladies Suits were being exported but on re- examination not a single piece of the said description was found. Instead blended/cotton fabric/cloth of Pakistani origin were stuffed.
13. ' The facts involved in Special Criminal Bail Application No,39 of 2006, arising out of F.I.R. No, Appg- 12-DCl/Seiz/2006, dated 4-5-2006 are that spy information was received that Messrs Bawan Shah Trading Company Karachi, Messrs B.S. Enterprises and Messrs Bawan Shah Corporation Karachi, exported a consignment declaring to contain Cow/Sheep Analine Leather Jackets/Coat, Sheep Analine Leather Jackets, 50% Cotton 50% Polyester Printed bed sheet sets and 100% Cotton dyed Terry Towels and Sheep/Cow Analine Leather Jackets/coat. According to F.I.R. The shippers Messrs Universal Shipping (Pvt.) Ltd., was directed not to discharge the said container at Dubai and redirect/return back the said container with intact seal to Karachi. The shippers in compliance of the directive of the department returned back the container to Karachi Port. The said container was unloaded from vessel on 5-4-2006 in presence of Directorate staff and representative of Messrs Universal Shipping (Pvt.) Ltd., as well as Badaruddin, Terminal Operator, East Wharf. Before opening of the container Messrs Bawan Shah Group of Companies filed a contempt application in C.P. No,D- 333/2006 on 6-4-2006, before the High Court. The High Court passed the following order:-- "In the meanwhile, the respondents and the alleged contemners are directed not to open the containers of take any other action without prior permission of this Court."
14. ' The Directorate-General, filed an application on 7-4-2006 seeking permission to open to container returned from Dubai and to prepare inventory of the goods contained therein. The High Court directed the opening of said container on 10-4-2006 at 3-00 p.m. In presence of the representative of the petitioner. The container was opened and reexamined by the staff of Directorate-General of Intelligence and Investigation, in presence of learned counsel for the petitioner and others. The entire process of de-sealing, opening, re-examination and resealing was properly recorded through video and audiovisual. The mashirnama and inventory were also prepared on the spot duly signed by the witnesses. The container was declared to contain three consignments containing 6349 pcs of Leather Jackets valuing Rs,49,722,700 ($ 828988), 1220 sets printed bed sheets valuing Rs,373,195 ($ 6222) and 4260 pieces of Terry Towel valuing Rs,485,478 ($ 8094) and benefit of S.R.Os. 509(1)/97, dated 8-7-1997 and 698(I)/2002, dated 9-10-2002 were claimed.
15. ' The joint re-examination of the container led to the recovery of following goods:--
(a) 4 cartons containing 20 pieces of Black Sheep Leather Jackets (assorted sizes) each carton comprising 5 pieces.
(b) 20 cartons containing 600 sets of Blended Printed Bed Sheets sets, each set comprising 2 bed sheets and 2 pillow covers, having 30 sets per carton.
(c) 240 bales bearing marks "Z-31", containing 4596 dozens, dyed/white 100% cotton Terry Towels, assorted sizes/colours.
16. ' The report of re-examination of the container and inventory were submitted to the High Court in compliance of the order, dated 7-4-2006. On furnishing of this report the C.P. No, D-333 of 2006 was disposed of by the High Court on 27-4-2006 with the direction to the customs officials to take action strictly in accordance with the law. In the interim challan it is stated that the value of exported consignment was declared at Rs,505,60,337 involving colossal loss at Rs,25,73,746 on account of rebate etc. By way of fraudulent and phony export.
17. ' Applicant submitted bail applications in all the four F.I.Rs, before the learned Special Judge (Customs and Excise) Karachi, on various grounds including sickness of the accused/applicant but this ground was not pressed before the learned trial Court and the bail plea was pressed on merits only.
18. ' The first plea taken before the learned trial Court was that even if prosecution allegation regarding evasion of customs duty and taxes is correct, the applicant was ready and prepared to pay the said amount. So far, the allegation of claiming rebate after export is concerned, it was contended that the allegation was imaginary.
19. ' The second plea was that the offence mainly attracts provision of section 32-A of the Customs Act, 1969 and placed reliance on section 32-B of the Customs Act, 1969, which provides that notwithstanding anything contained in sections 32 and 32-A or any other provision of the Customs Act, where any person has committed a duty or tax fraud the Collector may, with the prior approval of the Board, either before or after the institution of any proceedings for recovery of duty or tax, compound the offence if such person pays the amount of duty or tax due along with penalty as is determined under the provisions of the Customs Act.
20. ' Further reliance was placed on the provisions contained in section 195-C of the Customs Act, 1969, according to which any aggrieved person in connection with any matter of customs pertaining to liability, customs duty, admissibility of refund/rebate, waiver or fixation of penalty or fine, confiscation of goods, relaxation of any time period or procedural and technical condition may apply to the Central Board of Revenue for the appointment of a committee for the resolution of any hardship or dispute mentioned in detail in the application.
21. ' It was urged that the matter involved in these cases can be resolved by ADR Committee and no criminal proceedings can be initiated in such cases.
22. ' It was also maintained that the case of applicant has become of civil nature dispute and no criminal proceedings can be initiated in view of the above provisions of law. It was further stated that the applicant was prepared to pay the total amount involved in the cases or any amount deemed fit by the Court.
23. ' It was also submitted that interim challans were submitted, liabilities were determined, the applications for resolving the issue through ADR were pending, the offences do not fall under the prohibitory clause of section 497, Cr.P.C. And now-a-days a trend of law was that if applicant/accused is prepared to return the said amount then he is not sent to the jail but he is released after taking the amount. It was pleaded that the offences alleged against the applicant were not having punishment of 10 years or above and therefore, the applicant/accused has right of bail.
24. ' With reference to the provisions contained in sections 2B, sections 3A and 3E of Customs Act, 1969 read with S.R.O. 2005, dated 6-1-2005 it was contended that the customs authorities have not exercised their jurisdiction properly as warranted under the law for seizing the containers.
25. ' The prosecutor before the learned trial Court opposed the grant of bail contending that the applicant has been avoiding to appear before the trial Court. He got protective bail from Lahore High Court up to 19-4-2006. He appeared before the trial Court on 17-4-2006 with a bail application, which was fixed for hearing on 19-4-2006, but instead of appearing before the trial Court he obtained another protective bail from Sindh High Court up to 27-4-2006. He did not appear before the trial Court on 27-4-2006 for obtaining bail but submitted contempt application before the High Court with a plea that the customs officials may be directed not to open the containers and interim order was passed in favour of applicant. The containers in the first three F.I.Rs, were opened prior to the receiving of the Court's order. The applicant submitted another contempt application before the High Court. The petition before the High Court was finally disposed of on 27-4-2006. After disposal of Constitution Petition by the High Court, the applicant instead of approaching the trial Court submitted bail application before the Hon'ble Supreme Court, which was fixed for hearing on 5-5-2006. However, he was arrested on 4-5-2006. The co-accused Muhammad Raza absconded after withdrawing Rs,40 Million as per statement of applicant. The learned prosecutor produced a letter, dated May, 17th, 2006 written by the applicant in his own handwriting while in custody addressed to Chairman C.B.R. In the said letter in the handwriting of applicant and bearing his signature it was stated that his partner has ran away after withdrawing Rs, 40 Million from the bank and their factories are closed. He further stated that during investigation he offered through Investigating Officer, that although he was not aware of the matters which happened yet he was ready to make the payment of taxes:--
(1) Against the fabric imported under DTRE but not yet exported. It is approximately Rs,10 Million.
(2) Against the fabric exported in the month of March, 2006, (Imported under DTRE by Messrs Early Morning Textile (Not legible) the doubt is created. It is further stated that, it will be difficult for the department to prove it in Court of law that exported fabric is not actually imported under DTRE scheme, I also do not know, but in the interest of our nation this offer was given by me tax amount approximately Rs,40 Million.
(3) This is also undertaken that if all F.I.Rs, are withdrawn or compounded we will not claim any rebate against the export made in container (re-called) neither will claim return of withholding tax or permission of re-export of dollars, remitted excessively.
26. ' It was further stated in the letter as follows:-- "It is requested in the light of my above request/offer that, let us do our export business. We will earn more foreign exchange for the country. All four F.I.Rs, may kindly be either withdrawn or compounded and the amount undersigned offered be allowed to pay in six instalments, because, I will located my partner, if I come out from prison and make arrangement for the payment otherwise I will try to sell my house the only asset I have.
27. ' The second option if F.I.Rs, are not withdrawn or compounded than it is requested that department may not oppose my bail in the Court, so that I can cooperate more to the department to locate my partner M. Raza and other culprits who played with me and with government."
28. ' The learned prosecutor further contended before the trial Court that looking to the conduct of applicant and the factum of abscondance of co-accused namely Mukhtar Hussain Lakhani, Muhammad Raza, Rahil Ahmed A. Gill, Khalid Pervaiz, Zulfiqar Ali Shaikh and Assad Ali, the bail may not be granted as there is likelihood of absconsion of the applicant. It was also stated that there are about 20 more F.I.Rs, in the pipeline. The learned prosecutor further submitted that the application under section 195-C of the Customs Act, 1969, for resort the ADR already stands rejected by the C.B.R. Vide order, dated 23-6-2006 and the applicant has not approached for compounding the matter pertaining to the recovery of tax under section 32B of the Customs Act.
29. ' The learned Standing counsel, submitted before the learned trial Court that the offence falling under section 32A of the Customs Act, is punishable with the imprisonment for 10 years and that no enmity has been alleged against the applicant on the part of prosecution and that he is very influential person belonging to ruling party who cannot be falsely involved in the present cases. It was further contended that compounding of offence under section 32B and the alternative dispute resolution under section 195-C of the Customs Act, were applicable to the recovery proceedings only and have no bearing on the criminal prosecution.
30. ' The learned trial Court after considering the facts and the case law observed that the contents of F.I.R. And interim challan have not been disputed which clearly show that on re-opening of containers and re-examination of the goods exported and shipped for exporting it was found that the containers, contained entirely different articles than shown in the shipment documents.
31. ' The learned trial Court further observed that several points were raised which require deeper appreciation which was not proper to do and for the purpose of bail plea that Court was required to examine whether prima facie the accused is connected with the commission of offences alleged. The learned trial Court held that the applicant/accused is prima facie connected with the offences alleged by the prosecution and further investigation was still in progress, therefore, the applicant was not entitled to the grant of bail.
32. ' I have heard Messrs Azizullah K. Shaikh and Ismat Mehdi, learned Advocates for the applicant, Mr. Abdul Hafeez Prizada, learned counsel for the Directorate of Intelligence and Investigation (Customs, Sales Tax and Federal Excise) and Mr. Mehmood Alam Rizvi, learned Standing counsel for the State.
33. ' Mr. Azizullah K. Shaikh, has taken me through the F.I.Rs, the contents of the interim challan and the order passed by the learned trial Court. Mr. Shaikh reiterated the contentions raised before the learned trial Court. In addition Mr. Azizullah Shaikh, contended that the applicant/accused Raja Muhammad Zarat, did not authorize any export, he has not signed any customs document and he has not contacted any customs official. However, he conceded that the applicant is Chairman of Bawan Shah Group of Companies. He next contended that there is main allegation of conspiracy but there is no evidence with the prosecution in this behalf.
34. ' Mr. Azizullah Shaikh, next contended that the trend of law developed in Pakistan is that instead of prosecuting a person involved in causing loss to the State revenue and keeping him in jail the resort be made to the resolution of dispute through negotiated settlement and recovery of the losses caused to the State. In this behalf he referred to the law pertaining to the plea bargain contained in the NAB Ordinance, 1999 and placed reliance on the judgment of Hon'ble Supreme Court in the case of Khan Asfandyar Wali v. Federation of Pakistan, PLD 2001 SC 607 (relevant finding in Para 267 of the judgment Page 932).
35. ' He then referred to section 32B of the Customs Act, 1969 which reads as follows:-- "32B. Compounding of offence.---Notwithstanding anything contained in sections 32 and 32A or any other provision of this Act, where any person has committed a duty or tax fraud, the collector may, with the prior approval of the Board, either before or after the institution of any proceedings for recovery of duty or tax, compound the offence if such person pays the amount of duty or tax due along with penalty as is determined under the provisions of this Act."
36. ' He further referred to section 195-C of the Customs Act, 1969, which is as follows:-- "195-C Alternative Dispute Resolution.
(1) Notwithstanding any other provision of this Act, or the rules made thereunder, any aggrieved person in connection with any matter of Customs pertaining to liability of customs duty, admissibility of refund or rebate, waiver or fixation of penalty or fine, confiscation of goods, relaxation of any time period or procedural and technical condition may apply to the Central Board of Revenue for the appointment of a committee for the resolution of any hardship or dispute mentioned in detail in the application: ' Provided that only those disputes which are under litigation, in any Court of law or an adjudicating authority, shall be entertained for disputed resolution under the provisions of this section.
(2) The Central Board of Revenue, after examination of the application of an aggrieved person shall appoint a committee consisting of an officer of customs and two persons from all notified panel of Chartered or Cost Accountants, Advocates Tax Consultants or reputable taxpayers for the resolution of the hardship or dispute.
(3) The committee constituted under subsection (2) shall examine the issue and may, if it deems necessary, conduct inquiry, seek expert opinion, direct any officer of customs or any other person to conduct an audit and make recommendations in respect of the resolution of dispute as it may deem fit: ' Provided that the period of forty-five days stipulated for making the recommendations may be extended by the Board for another forty-five days on specific request of the committee.
(4) The Board may, on the recommendation of the committee, pass such order, as it may deem appropriate.
(5) The aggrieved person may make the payment of customs duty and other taxes as determined (if any) by the Board in its order under subsection (4) and all decisions, orders and judgments made or passed shall stand modified to that extent and all proceedings under this Act or the rules made thereunder by any authority shall abate: ' Provided that, in case the matter is already sub judice before any forum or Tribunal or the Court, an agreement made between the aggrieved person and the Board in the light of recommendations of the committee shall be substituted before that forum, Tribunal or the Court for consideration and order as deemed appropriate.
(6) * * *
(7) The Board may, by notification in the official Gazette, make rules for carrying out the purposes of this section."
37. ' Mr. Azizullah Shaikh, submitted that the applicant has already offered to pay the losses allegedly caused to the exchequer or any other amount directed by the Court and therefore, in terms of the law laid down by the Hon'ble Supreme Court in the case of Shamraiz Khan v. The State, 2000 SCM R 157, the applicant be admitted to bail on payment of the amount as directed by the Court.
38. ' Lastly Mr. Azizullah Shaikh, expressed grievance that the applicant has been arrested while the customs officials are still at large without whose connivance nothing could be done. He submitted that this is normal practice in such cases. He pointed out that in Shamraiz Khan case also the government officials were exonerated of the charge. The Hon'ble Supreme Court expressed annoyance on the manner the official accused persons were exonerated and recorded strong disapproval. Mr. Azizullah Shaikh, further stated that at the time of hearing of bail plea before the trial Court it was stated that 20 more F.I.Rs, are in pipeline but not a single F.I.R. In addition to the four F.I.Rs, have been recorded so far, and the investigation is still under progress. Final challans have not been submitted in the trial Court.
39. ' Mrs. Ismat Mehdi, the second counsel appearing on behalf of appellant reiterated her contentions before the trial Court that under section 2B of the Customs Act, the expression "Appropriate Officer" has been defined in relation to any functions to be performed under the Customs Act, to mean the officer of customs to whom such functions are assigned by or under the Customs Act, and it is provided in section 3A that the Directorate-General of Intelligence and Investigation (Customs and Central Excise), shall consist of a Director-General and as many Directors, Additional Directors, Deputy Directors and Assistant Directors and such other officers as the Board may, by notification in the official Gazette, appoint and it is further provided in section 3E that the Board may specify the functions, jurisdiction and powers of the Directorates specified in the preceding sections of the customs Act and their officers by notification in the official Gazette. She contended that a cumulative reading of all these provisions indicates that the officials of the Directorate-General of Intelligence and Investigation (Customs and Central Excise) have first to be conferred the status of officers of customs and . Thereafter functions are to be assigned to them by notification in the official Gazette and only thereafter they can exercise the powers conferred on them by the C.B.R.
40. She submitted that in this case the officials of the Directorate-General of Intelligence and Investigation (Customs and Central Excise) were not conferred the jurisdiction. They have not exercised their jurisdiction properly as warranted in law while seizing the containers, opening them and reexamining the goods and consequently all subsequent proceedings stand vitiated.
41. ' Mr. Abdul Hafeez Pirzada, has forcefully supported the rejection of bail pleas by the learned trial Court and has vehemently opposed the grant of bail to the applicant. The learned counsel contended that the application of applicant, for recourse to ADR under section 195-C has already been rejected by the C.B.R. He maintained that it is not mandatory for the C.B.R. To accept every application to appoint a committee for resolution of dispute by way of ADR. It is within the discretion of C.B.R. And the C.B.R. Has already rejected the application in this behalf. The applicant has not assailed the rejection of application under section 195-C of the Customs Act, 1969 before any forum and consequently, the position as prevails at present is that the forum of ADR is no more available. He further submitted that the applicant has not approached the competent authority under section 32B for compounding the offence, Mr. Pirzada, further urged that the provisions contained in section 32B and section 195-C pertain to the civil liability which is directed to the recovery of tax only and have no bearing on the criminal liabilities under section 156 of the Customs Act, 1969. He next contended that the provision contained in the NAB Ordinance pertaining to the plea bargain is confined to cases under the NAB Ordinance only and is not attracted to the civil or criminal proceedings under the Customs Act, 1969.
42. ' Mr. Pirzada, while elaborating the conduct of applicant submitted that he joined the Customs Department, as a Lower Division Clerk in the year, 1981 and after 21 years of service was able to rise to the post of U.D.C. Only. He resigned from customs department as U.D.C. In August, 2002 and thereafter started roaring business and established several companies, partnership firms and proprietary concern, which speak volumes about the manner in which the applicant amassed billions of rupees. He further stated that the Directorate-General of Intelligence and Investigation, has unearthed a network headed by the applicant engaged in illegal activities. There is a huge scandal and the completion of investigation shall take time. He however, stated that one more F.I.R.
43. Has been lodged in respect of 29 consignments instead of lodging 29 different F.I.Rs, He further stated that information is sought from 14 countries. According to Mr. Prizada, the applicant is exporter in Pakistan as well as importer in the countries of destination. He submitted that the applicant has established companies in Saudi Arabia where fake exports are made. He informed that 44 consignments sent to Saudi Arabia by the applicant in the name of his own companies were examined and in all the cases discrepancies in the Bill of Export in Pakistan and Bill of Entry (goods declaration in Saudi Arabia) were detected. He further stated that the facts of 184 drawback cases are under investigation in respect of the containers, which were already shipped.
44. According to him from the year, 2002 onward 1.491 Billion rupees have been claimed under the head duty drawback, rebate and refund etc. Mr.Pirzada, stated that he is not arguing that the entire claim is fraudulent. A part of the claim may be genuine but major part of the duty drawback and rebates require proper investigation, which is under progress. He produced a letter, dated 16th May, 2006 written by Commercial Counsellor of Pakistan in Dubai, to the Director, Directorate-General of Intelligence and Investigation (Customs and Excise), forwarding information furnished by the U.A.E.
45. Dubai Customs and chart showing huge amounts of remission involved in misdeclared containers of Messrs Bawan Shah Group of Companies. This chart shows the description of goods declared in the shipping documents and the declaration before Duabi Customs. Not a single declaration before Pakistan Customs is in conformity with the declaration before Dubai Customs. Mr. Pirzada has further stated that more than 300 containers have been examined.
46. ' Mr. Pirzada pointed out that in first three cases, the containers were intercepted before leaving the Karachi Port while in the 4th case (Special Criminal Bail Application No, 39 of 2006) the container was already shipped meaning thereby that the act was completed. On account of timely action taken by the Directorate-General of Intelligence and Investigation (Customs and Excise), the container was brought back and was opened and re-examined under the direction of High Court in presence of learned counsel for the applicant. The goods declared were not found in the container and there is no explanation for the misdeclaration and misstatement. Mr. Pirzada submitted that according to prosecution the applicant has committed several offences shown in the F.I.R. And one of the offence falls under section 32A (c) & (e) of the Customs Act, 1969 which is punishable under Clause 14A of section 156(1) of the Customs Act, which provides that, if any person commits an offence under section 32-A, he shall be liable to a penalty not exceeding three times the value of goods, in respect of which such offence is committed and such goods shall also be liable to confiscation and upon conviction by Special Judge he shall further be liable to imprisonment for a term which may extend to ten years but shall not be less than five years or to fine or to both.
47. ' Mr. Pirzada submitted that the learned counsel for the applicant has offered a very meagre amount for grant of bail to the applicant. Relying on the letter written by the applicant/accused himself, to Chairman, C.B.R. On May, 17th, 2006, Mr. Pirzada stated that the applicant himself offered an amount of Rs,50 Million for his release. Mr. Pirzada submitted that this offer as well as application for resolution of the case through ADR have been rejected by the C.B.R. For the reason that billions of rupees are involved in the fraudulent and phony import and export transactions. So far, the ratio of Shamraiz Khan case is concerned Mr. Pirzada contended that it is not applicable to the present case as the Hon'ble Supreme Court granted bail in the said case mainly on the rule of consistency and not on the sole ground of payment of money by the accused.
48. ' Mr. Pirzada stated that the trial Court is fully empowered to commence the trial on the basis of interim challan. He further assured that no discriminatory treatment shall be meted out to the applicant and the absconding customs officials shall also be treated in accordance with law, who have already been suspended.
49. ' Mr. S. Mehmood Alam Rizvi, learned Standing counsel has adopted the arguments addressed by Mr. Abdul Hafeez Pirzada.
50. ' I have carefully considered the entire material available on record and the arguments addressed by the learned senior Advocates.
51. ' The first plea taken by Mr. Azizullah Shaikh is that the applicant who is admittedly Chairman of Bawan Shah Group of Companies, did not authorise any export, did not sign any document himself and did not contact any customs official, therefore, he is not liable for any criminal action.
52. ' In the bail application as well as order of the learned trial Court reference has been made to C.P.
53. No, D-333 of 2006 filed by the applicant. In order to appreciate contention of Mr. Azizullah Shaikh, I have examined the Memo of Petition in C.P. No, D-333 of 2006. This petition was filed by six petitioners. In the Memo of Petition it was stated that Messrs Alliance Leather (Pvt.) Limited, is a company incorporated under the Companies Ordinance, 1984 and is engaged in the manufacture of leather, export of leather garments and textile products etc. Mr. Raja Muhammad Zarat (the applicant) is the Chairman of the Company. The petitioner No,2, was Mr. Raja Muhammad Zarat son of Makhan Khan, doing business as sole Proprietor of Messrs B.S. Enterprises. Petitioner Nos. 3 to 6 were Messrs Bawan Shah Corporation, Messrs Bawan Shah Trading Company, Messrs Latest Fashion Stitching, Messrs Early Morning Textile, all partnership concerns. It was stated that all the petitioners were sister concern of Messrs Bawan Shah Group of Companies. The petition was filed by Raja Muhammad Zarat on behalf of all the six petitioners and it was stated in Para. 13 of the petition that the petitioners companies are known in the name of their Chairman Mr. Raja Muhammad Zarat. In this petition the inquiry/investigation into the affairs of petitioners were assailed. The applicant being Chairman of Messrs Alliance Leather (Pvt.) Limited, sole Proprietor of Messrs B.S. Enterprises and partner of four other partnership concerns cannot be allowed to take the plea that he is not responsible for the acts done by the private limited company, partnership concerns and Proprietary concern. I do not find any substance in the first contention of Mr. Azizullah Shaikh.
54. So far, the provision pertaining to the plea bargain contained in the NAB Ordinance, is concerned, Mr. Azizullah Shaikh has very frankly conceded that it is not attracted to the criminal proceedings under the Customs Act, 1969.
55. ' In reply to a query made by the Court Mr. Azizullah Shaikh, further conceded that the application under section 195-C of the Customs Act, for recourse to ADR has been rejected by the C.B.R. And has further conceded that the provisions contained in section 195-C as well as section 32B in the Customs Act, pertain to the discharge of Civil liability and even if the matter is settled under these provisions a person shall not be absolved automatically of the criminal liability, more particularly when the prosecution has already been launched before the learned Special Judge (Customs and Taxation). So far, the observations made by the Hon'ble Supreme Court in the case of Khan Asfandyar Wali v. Federation of Pakistan, PLD 2001 SC 607(932) is concerned, I find that the Hon'ble Supreme Court has observed as follows:-- "The rationale behind the Ordinance is not only to punish those who were found guilty of the charges levelled under the Ordinance but also to facilitate early recovery of the ill-gotten wealth through settlement where practicable. The traditional compromise, settlement, compoundability of offence during the course of proceedings by the Courts after protracted litigation is wasteful.
56. Viewed in this perspective, a power has been vested in the Chairman NAB to facilitate early settlement for recovery of dues through 'plea bargaining' where practicable. Lawyers are often interested in settling the disputes of their clients on just, fair and equitable basis. There are different approaches to settlement. Plea bargaining is not desirable in cases opposed to the principles of public policy."
57. ' In addition to the fact that Mr. Azizullah Shaikh very candidly conceded that the provisions pertaining to plea bargain in the NAB Ordinance are not attracted to the present prosecution under the Customs Act, 1969, I find that the Hon'ble Supreme Court has specifically observed that the plea bargain is not desirable in cases opposed to the principles of public policy, I have no scintilla of doubt in my mind, that the fraudulent and phony exports are utterly opposed to the public policy for the simple reason that, first, they bring bad name to the country in the comity of nations, secondly, they always adversely affect the reputation of the country and export as it tends to erode the credibility of the business community in Pakistan, thirdly, they badly affect internal economy of the country, fourthly, it encourages the tendency of becoming billionaire overnight and amass wealth by illegal and ill-gotten means thereby spreading black money in the country, adversely affecting the entire economy as well as society and fifthly, it has the tendency to further expand and spread the corruption culture in already corrupt to the core bureaucracy and particularly the tax officials in the country leading to rating of the country in the category of most corrupt countries of the world. In short, it is a crime against the entire society and the country, which is more heinous than any other ordinary criminal offence.
58. ' So far, the order in Shamraiz Khan case (supra) is concerned, I inquired from Mr. Azizullah Shaikh, whether this order shall be taken as an authority on the point that any person who is capable of amassing illegal or ill-gotten money can purchase his liberty in every case thereby reserving the rigours of prosecution, remaining in custody during the trial of the case and punishments for the poor people only. Mr. Azizullah Shaikh did not subscribe to the proposition. He stated that whatever the ratio of the judgment be, it is before the Court he further stated that he was appearing for the petitioner Shamraiz Khan, before the Hon'ble Supreme Court and was himself very reluctant in approaching the Hon'ble Supreme Court in bail plea. However, he mustered courage with the result that according to him, a trend has been set under which settlement on recovery of loss to the State is preferred over criminal prosecution and keeping the accused persons behind the bars. As already observed earlier Mr. Abdul Hafeez Pirzada, learned counsel for the Directorate General of Intelligence and Investigation (Customs, Sales Tax and Federal Excise), contended that the bail in Shamraiz Khan case was not granted merely on account of depositing the amount of loss caused to the government but on account of rule of consistency.
59. ' I have very carefully studied the order of Hon'ble Supreme Court for the purpose of taking guidance from the wisdom of the Hon'ble Supreme Court. The relevant facts were that the petitioner Shamraiz Khan was one of 19 accused persons. He was the Contractor and remaining 18 were officials of the Food Department, Government of Balochistan. One co-accused was absconding and 17 remaining accused persons were already granted bail. The facts of the case were that the petitioner in conspiracy with co-accused who were all officials in the Food Department short delivered wheat in bags owned by the Government, the value whereof was Rs,15 crores. About 9,75,00,000 were already recovered from the petitioner and remaining amount of Rs,5,25,00,000 was yet to be recovered. In the above circumstances, the Hon'ble Supreme Court observed as follows:-- "In this case where the 17 co-accused, who are government officials, have already been granted bail and more or less the entire amount had been deposited or is going to be deposited, according to the learned counsel it is a case where a interim bail is liable to be confirmed. In the facts and circumstances of the case interim bail granted to the petitioner on 5-8-1998 is confirmed subject to deposit of Rs,49,400,391 (rupees four crore ninety-four lacs three hundred and ninety-one) by the Prudential Commercial Bank Limited, Quetta, on behalf of the petitioner with Nazir of Balochistan High Court within one week from today."
60. ' After granting bail to the petitioner the Hon'ble Supreme Court recorded its strong disapproval of the manner in which the official accused persons were exonerated.
61. On a very careful consideration of the order by the Hon'ble Supreme Court in Shamraiz Khan case, I am of the considered opinion that this is one of the orders which is being misinterpreted and mis- applied in large number of cases. In my humble view the ratio of judgment is not that any person who is involved in any embezzlement, criminal breach of trust, fraud, forgery, accepting of illegal gratification etc., can be let off the hook merely on depositing the amount of loss caused by any such person. This will make the criminal provisions of law redundant, otiose and nugatory. It will also convert the criminal liability into a civil liability and I am afraid there is no room for any such proposition.. I, find force in the contention of Mr. Abdul Hafeez Pirzada that Hon'ble Supreme Court granted bail in Shamraiz Khan case on the rule of consistency as 17 other accused persons were already granted bail. According to my humble view the dominant factor for granting the bail was the grant of bail to 17 accused persons and while doing so the Hon'ble Supreme Court protected the State revenue as well which was of course a secondary consideration for the grant of bail. In the wake of facts and circumstances in this case, I, do not find substance in the contention of Mr. Azizullah Shaikh that the applicant is entitled to be released on bail on the condition of depositing an amount in sum of Rs,12,74,740, more particularly when the C.B.R. Has not accepted the offer of Rs,50 Million on account of the fact that series of fraudulent acts have been committed and network of illegal activities has been established.
62. ' I, further asked Mr. Azizullah Shaikh, if while granting bail to Shamraiz Khan, the notice of Hon'ble Supreme Coutlt was drawn to the earlier decision of the Hon'ble Supreme Court in case of Imtiaz Ahmed v. The State, PLD 1997 SC 545, wherein the Hon'ble Supreme Court laid down the guidelines and principles to be kept in view in white colour crimes. Mr. Azizullah Shaikh replied in negative. In Imtiaz Ahmed case, bail was sought inter alia on the ground that the offence does not fall under the prohibitory clause of section 497, Cr.P.C. 11 co-accused were admitted to bail by the High Court, the rule of consistency demanded that the petitioner should also be admitted to bail. The learned Additional Advocate-General had conceded that it was a fit case for grant of bail.
63. The Hon'ble Supreme Court did not subscribe to the concession made by the learned Additional Advocate-General and held that it was not a fit case for grant of bail. The Hon'ble Supreme Court observed that, by now it is well-settled principle of law that even in respect of offences not falling under prohibitory clause to section 497, Cr.P.C. The Court may decline to an accused to admit on a bail if there existed a recognized exceptional circumstance. This is evident from the judgment of this Court in the case of Tariq Bashir and 5 others v. The State, PLD 1995 SC 34, in which some of the exceptional circumstances have been highlighted which warrant refusal of bail in respect of the above offences but the above exceptional circumstances are not exhaustive."
64. The Hon'ble Supreme Court observed that a distinction is to be made between an offence which is committed by an individual like a theft and an offence which is directed against the society for a whole for the purpose of bail. In the former cases practice to allow bail in cases not falling under prohibitory clause of section 497, Cr.P.C. In the absence of an exceptional circumstances may be followed, but in the later category, the Courts should be strict in exercise of discretion of bail. It was further held that the above category of offenders belong to a distinct class and they qualify to be treated falling within an exceptional circumstance 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.
65. ' The Hon'ble Supreme Court further observed that 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.
66. The people commit offence's detrimental to the society and the country for money. In above scenario Courts approach should be reformation-oriented with the desire to suppress the above mischieves. To achieve the above objective, it is imperative that the Courts should apply strictly the laws which are designed and intended to eradicate the above national evils but at the same time, they are duty bound to ensure that the above approach should not result in miscarriage of justice.
67. It should not be overlooked that Article 9 of our Constitution, which relates to a fundamental right, guarantees life and liberty of every person. Life, inter alia, includes the right to have access to a fair and independent judicial forum for redress. A balance is to be struck between national and individual interest/right.
68. ' After an anxious consideration of the ratio of judgments in Shamraiz Khan case and in Imtiaz Ahmed case referred to above, I am of the opinion that bail in Shamraiz Khan case was granted on rule of consistency and in the peculiar facts and circumstances of the case, while ih Imtiaz Ahmed case, the Hon'ble Supreme Court laid down the law and the principles which are to be kept in view while considering bail plea in a white colour crime.
69. With all humbleness and humility at my command, I would like to observe that every judgment in a criminal case does not have the force of precedent for the reason that facts and circumstances of the two criminal cases are seldom identical. However, judgments in the criminal cases where principles of law have been laid down have the force of precedent and are of binding nature.
70. According to my opinion the ratio ' For the foregoing reasons, it is held that the applicant is not entitled to be released on bail and consequently, all the four bail applications stand dismissed.
71. ' After hearing learned Advocates for the parties on 4-9-2006, the bail applications were dismissed by a short order. These are the detailed reasons in support thereof.