1. ' KHAWAJA NAVEED AHMED, J.-This bail application has been moved by Muhammad Naeem Qureshi, who has been booked by the Customs Authorities in case F.I.R. No,Appg-II/34-A/DC/ Misc/ 2007 under sections 16, 32(1), (2), 32-A, 79, 80 and 178 of Customs Act, 1969, punishable under clauses (9), (14), (14-A), (43), (47) of subsection (1) of section 156, ibid. ' Brief facts of the case, as disclosed in the F.I.R., are that Messrs Malik Enterprises, a Lahore based business company, have cleared a number of consignments of miscellaneous items, including electronic goods, from Port Muhammad Bin Qasim on fake and fictitious documents without making payment of duty and taxes payable thereon. A detailed inquiry was held and documentary evidence was collected, which reveals that the entire offence has been committed by applicant/accused with active connivance of Jamal Durrani, Naila Jamal. The present applicant was arrested by the Custom Authorities on 26-4-2008 and is presently in judicial custody. His bail application in the trial Court was rejected by the learned Special Judge, Custom and Taxation, vide order, dated 31-5-2008. The learned Special Judge, while rejecting the bail application of the present applicant, has observed as under :-- ' "Perusal of the record shows that co-accused Jamal Durrani is engaged in the business of working as Customs Clearing and Forwarding Agents for the last 16 years. From 1992-93 to 2005 he remained partner of M/s Durrani Traders, Customs Clearing and Forwarding Agent, CHAL No, 1469, Karachi, owned by his father. However, in March 2006 he established a new Clearing and Forwarding Agency namely Messrs N.J. International, Karachi CHAL No,2392, Karachi, through a partnership deed signed by him and his wife Naila Jamal. Both of them used to give copies of blank Goods Declaration duly signed to the present applicant/accused Naeem Qureshi and various other persons for clearance of imported goods against receipt of Rs, 1,000 per G.D. In the meantime Naila Jamal established relationship with present applicant/accused Naeem Qureshi, separated from Jamal Durrani and contracted marriage with the present applicant/accused Naeem Qureshi.
2. On 26-4-2008 present accused/applicant Naeem Qureshi was arrested he was going in Honda City Car bearing Regn. No,AJZ-238 and at the time of his arrest there was recovery of various incriminating documents/ evidence including Cheque Books issued by various banks in the name of applicant/accused Muhammad Naeem to prove his direct involvement in the crime. The recovered documents, as per inventory, duly signed by the present applicant/accused, were seized and secured in custody. Present applicant/accused was working as Manager in Messrs Imex International and Logistics Trading, Karachi, having Head Office at Islamabad. The said firm was clearing the containers of US & NATO Forces operating in Afghanistan, through the clearing * and forwarding agency Messrs N.J. International, CHAL No, 2392, Karachi and he opened Account No,6112-349072-050 in Standard Chartered Bank, Korangi Industrial Area, Karachi. During the year 2006, co-accused Faisal Shahzad, one of his childhood friend, approached him and organized a plan to clear the containerized import cargo in the name of various importers from QICT, Karachi, on the basis of bogus and fabricated goods declaration without payment of duty and taxes. Co- accused Faisal Shehzad and applicant/accused Muhammad Naeem arranged the phony and dubious firms of Lahore, Karachi, Peshawar and Faisalabad, etc. The modus operandi for illegal removal of the containers was also discussed, wherein the bill of lading/invoices were to be supplied to the applicant / accused Muhammad Naeem for further fabricated/manipulated processing and clearance of the containerized cargo. In sequel to settlement of modalities of clandestine removal of containers, co-accused Faisal Shahzad from time to time sent huge amount of money in his Bank Account Nos.6112-349072-050 and 6112-349414-053 (US $ Dollar Account) of Standard Chartered Bank, Korangi Branch, Karachi No,6105-374326-050 of Standard Chartered Bank, which was opened in the name of Messrs N.J. International Karachi, Bank Statements of above three Bank Accounts were obtained and from their scrutiny it transpited that during the period 1-10-2006 to 17-9-2007 an amount of Rs, 104,703,375.10 was credited in Account No,6112-349072-050. During the period of 17-5-2007 to 17-9-2007 an amount of Rs, 1,42,91,210.00 was credited in Account No,6105-374326-050 and US $ 7613 were credited in Account No,6112-349414-
053. The involvement of applicant/accused Muhammad Naeem is apparent from the fact that he established his own importing firm Messrs Al- Huraim International, Karachi, opened Account No,612-349072- 050 in the name and style of Messrs Imex International Logistic Trading Karachi, whereby the business address of both the aforesaid firms have been shown as 1-Marium Palace, Bohri Road, Opp. New Customs House, Karachi, whereas per record of the licensing authority Collectorate of Customs (Appraisement) Customs House, Karachi, is the business address of Messers N.N. International CHAL No, 2392, Karachi, whose numerous Goods Declaration were used by accused Muhammad Naeem and others for the fraudulent clearance of containerized Cargo from QICT, Karachi.
3. ' The case-law relied upon by the learned Advocate for the applicant/ accused, being distinguished from the facts and circumstances of the instant case, is not applicable in this case.
4. ' The applicant/accused is prima facie connected with the commission of the instant offence. I therefore, reject the bail application of the applicant/ accused."
5. ' I have perused the impugned order and the entire record with the help of learned counsel for the parties, namely, Mr. Muhammad Ilyas Khan, for the applicant and Mr. Akhtar Ali Mehmood, for the Customs Department. The Investigating Officer was also present who has assisted the Court during hearing.
6. ' The main grounds urged by the learned counsel for the applicant are that the offence is alleged to have been committed on 6-3-2007 while the F.I.R. Was registered on 2-1-2008. He states that this F.I.R. Is delayed by nine months and name of the present applicant has not been shown as accused in the said F.I.R. According to the learned counsel, his name, for the first time, appeared in the interim charge-sheet which was submitted on 22-4-2008 i.e,, after delay of another 3-1/2 months. He submitted that the accused was shown in the interim challans absconder. The learned counsel for the applicant has argued that as per prosecution case name of present applicant has been disclosed by coaccused Jamal Durrani, who was arrested in another case of similar nature and was confined in Central Prison at Peshawar. The learned counsel has relied upon Articles 37/38 of Qanun-e-Shahadat Order, 1984 and has placed reliance on the cases reported in 2000 YLR 600, 2000 MLD 961, 2001 SCMR 14 and 2007 YLR 3234 on the point of authenticity of the statement of co- accused for the purpose of implicating the other accused persons in the case. The learned counsel further states that the prosecution inspite of collecting a number of documents from different agencies/ authorities could not succeed to point out anything against the present applicant/ accused regarding alleged clearance of consignment. The learned counsel has further argued that in the clearance process, customs personnel of Port Muhammad Bin Qasim are also involved in the alleged crime but not a single official has been arrested by the customs authorities up till now. He has argued on mala fides on the part of prosecution. He further states that even in the interim challan and supplementary challan no overt act has been attributed to the present applicant and his case requires further inquiry. Lastly, the learned counsel has argued that section 32-A of the Customs Act is punishable with imprisonment which extends upto ten years or fine and as such the offence does not fall under the prohibitory clause of section 497, Cr.P.C. Li support of his argument, he cited following authorities:--
(1) Gul Sher v. The State 2000 MLD 961.
(2) Arif Nawaz Khan v. The State PLD 1991 FSC 53.
(3) Abdul Majeed alias Majeed v. The State 2007 YLR 3234.
(4) Soib Mahmood Butt v. Iftikharul Haq 1996 SCMR 1845.
(5) Muhammad Nawaz v The State PLD 2008 SC 438.
(6) Aftab Hussain v. The State 2004 SCMR 1467.
(7) Muhammad Rafiq v. State 1997 SCMR 412.
(8) Saeed Ahmed v. State 1996 SCMR 1132.
(9) Anum Shiraz v. The State 1999 MLD 844.
(10) Soni Khan v. The State NLR 1995 Cr.LJ 593.
(11) Safer Ali v. The State 1986 PCr.LJ 2571.
(12) Arshad Mahmood v. The State 1985 PCr.LJ 2048.
(13) Hussain Haqani v. The State 2000 PCr.LJ 161.
(14) Ijaz Akhtar v. The State 1978 SCMR 64.
7. ' On the other hand, the learned counsel appearing for the Customs Department, Mr. Akhtar Ali Mehmood, has vehemently opposed grant of bail to the present applicant. He states that the present applicant is the main accused in the mega scam of fraudulent clearance of more than 300 containers from Quaid-e-Azam International Containers Terminal, Karachi, (QICT) on fake and fictitious documents.
8. ' According to the learned counsel, the group comprises of nearly 11 persons, who have been named in Column 3 of the supplementary challan, dated 12-5-2008, submitted before the Special Judge, Customs and Taxation, Karachi. He has also stated that the present applicant/ accused in collusion with the officials of QICT managed clearance of containers on forged, fake and fictitious documents in the absence of assessment and payment of duties and taxes leviable on such import of goods. He has argued that present applicant in collusion with other officials of QICT has defeated the newly introduced Customs Computerized System meant for quick clearance of imported goods to facilitate the businessmen. He has informed the Court that the present applicant has managed to clear 173 containers at Karachi and so far 32 F.I.Rs, have been registered against him and other accused persons. The learned counsel further pointed out that the applicant has also been named as accused by the DIT in similar cases registered at Faisalabad, Peshawar and Lahore. Mr.Akhtar Ali Mehmood has further stated that Malik Enterprises have purchased 4259 cartons of electric goods for US $ 1277, at unit price of US $ 3.00 and the value of the goods were declared at Rs,7,92,456.00. It is further stated that stamp and signature of Principal Appraiser, Customs as well as the stamp of National Bank of Pakistan indicating payment of the assessed duty have been found to be fake and forged and documents even do not contain the material particular, such as showing machine number and date etc. The G.D. Is a fictitious document not having been assessed at all by the customs officials. The learned counsel further contended that the shipping documents of Malik Enterprises were collected by Al-Mehran Traders from the shipping agent who subsequently issued a cheque in favour of Messrs Al-Mehran Trades in the sum of Rs,18,8000.00 and such proceeds were deposited in the account of the accused maintained in the name of Messrs N.J. International i.e, clearing agent. The learned counsel has also contended that the containerized goods cleared from QICT were transported by one Aslam Niazi at the instance of accused who was paid a sum of Rs,7,5300.00 during January to June, 2007, and such payment was made from the account of the accused maintained with Standard Chartered Bank, Korangi Branch, Karachi. This account is maintained in the name of Imex International by the accused. The learned counsel in support of his contention has relied upon the cases reported in PLD 1997 SC 545, 2004 SCMR 319 and 2003 MLD 1591.
9. ' I have heard both the learned counsel at length and have also perused the case-law referred at the Bar. From the facts of the case narrated above, it transpires that the role of the present applicant was that of a clearing agent for the main exporter. He has been arrested on the statement of co-accused, who was partner of N.J. International. During arguments, it transpired that the present applicant has married with Mst. Naila Jamal after she was divorced by her former husband Jamal, who was partner of N.J. International. After divorce Mst. Naila Jamal married with Naeem Qureshi which annoyed co-accused Jamal, he got hostile and came out with the trade secrets of his former wife's business, which he was sharing before as a husband with Mst. Naila Jamal. The best way to take revenge was to get the new husband of Mst. Naila Jamal arrested and as such Jamal made all disclosure. As far as role of present accused is concerned, he has been shown as clearing agent throughout the prosecution papers and at no stage he has been shown as main beneficiary. The B entire case rests upon documentary evidence, which has already been collected by the prosecution. The learned counsel for the applicant has relied upon the case reported in 1996 SCMR 1132 wherein the Honourable Supreme Court has observed as under:-- ' "The case entirely depends upon documentary evidence, which seems to be in possession of the prosecution and challan has already been submitted. The objection of the learned counsel regarding addition of section 409, P.P.C. May carry some weight while considering the bail application. As there is no possibility of tampering with the evidence, which is entirely documentary in nature and in possession of the prosecution, in the circumstances, we convert the petition into an appeal and allow it, and grant bail to the petitioner on furnishing one surety in the sum of Rs,50,000 to the satisfaction of the Deputy Registrar, Supreme Court, Lahore."
10. ' The learned counsel has also relied upon the case of Hussain Haqqani v. The State reported in 2002 PCr.LJ page 161 wherein it has been observed that documentary evidence on which the case was based already having been collected by the prosecution, same was not likely to be tampered by the accused and Court was pleased to allow bail to the accused. It has been held by the learned Single Judge of this Court as under:-- ' " The entire case is based on documentary evidence which has already been collected by the prosecution, as such in my humble opinion there is no likelihood of tampering with the prosecution evidence at all. The worth of the case-law cited by the learned counsel for the applicant/accused is relevant and helpful to the case of the applicant/accused which, I respectfully follow. The applicant/ accused is in custody since May, 1999 and in two other cases which are also of same nature, has been granted bail by the learned Lahore High Court at Rawalpindi Bench.
11. ' For the facts, circumstances and case-law and circulars discussed, hereinabove, I am of the considered opinion that prima facie the case of the applicant/accused required further inquiry and he is entitled to be released on bail.
12. ' Consequently, I allow the application. The applicant/ accused be released on furnishing solvent surety in the sum of Rs,5,00,000 to the satisfaction of the Nazir of this Court."
13. ' In case reported as 1978 SCMR page 64. It has been held as under:-- ' "On the other hand Mr. K.M. Iqbal opposes bail on the ground that the charge against the petitioner is of a grave nature because the amount embezzled was huge. No doubt the amount involved is large but by itself this would be no ground for refusing bail."
14. ' The Learned counsel has also produced before me number of authorities on the point that statement of an accomplice implicating his co-accused is not acceptable under the law.
15. ' In reply to the question regarding registration of 33 F.I.Rs, against the accused, the learned counsel for the applicant has replied that in case of Aftab Hussain v. The State 2004 SCMR 1467, it has been held that "Mere registration of other F.I.Rs, against accused without conviction cannot be considered as a circumstance against him while deciding his bail application".
16. ' The learned counsel for the applicant has also placed before me an unreported order passed by Peshawar High Court granting bail to co-accused Jamal Durrani in Criminal Bail Application No,210 of 2008, the relevant portion whereof reads as under:-- ' " So for neither the importers nor any person working on his behalf has been arrested. The role of the present petitioner namely Jamal Durrani is that he allegedly worked as authorized rep. Of Moon Trading Company and he has been arrested. If he had performed the clearance work and has handed over the consignment to NLC his role would be minimized in the commission of the crime. I, would therefore, accept this bail petition and order the release of the accused/ petitioner on submission of bail bonds worth Rs,one lac with two locals and reliable sureties each in the like amount to the satisfaction of this Court or to deposit a sum of Rs, Thirty thousand as such security amount in lieu of bail bonds."
17. ' Now, I revert back to the case-law relied upon by the learned counsel for the respondent/complainant. The case reported in PLD 1997 SC 545 is in respect of breaking of Sukkur Jail, in which government officials were involved and the Honourable Supreme Court has taken strict view in that respect. The facts of present case are different from that of the case reported in PLD 1997 SC 545. In the cited case, hardened criminals were facilitated by the jail staff of escaping from the jail, as such, with great respect the authority cited is not applicable in this case.
18. ' The other case relied upon by the learned counsel for the complainant is 2004 SCMR 319. In this case, the accused was the owner of Messrs Multi-Pharma (Pvt.) Limited and was apprehended at the spot in manufacturing process and putting false labels of Norgesic Injection. Huge quantity of Norgesic Injection without labels along with packing materials were also recovered from the spot.
19. Prima facie, a strong case was made out against the accused and the Honourable Lahore High Court had declined bail to the accused and the Honourable Supreme Court was pleased to refuse leave to appeal against the order of rejection of bail. As far as present case is concerned, it is a financial crime based on documentary evidence. The role of applicant is not that of principal beneficiary. The importers and other government officials who connived with the accused person have not been arrested. On the contrary, efforts are being made to exonerate them from the charge. The accused in present case has been remanded to jail custody and is no more required by the prosecution for further investigation or recoveries. The entire evidence is that of documentary nature.
20. ' In the circumstances mentioned above, I hold the case of present applicant as one of further inquiry as has been contemplated under section 497(2), Cr.P.C. As to the actual role played by him and financial benefit drawn by him, and pending such inquiry, I grant bail to the accused upon furnishing surety in the sum of Rs,200,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.
21. ' The observations made by me above tentative in nature and the learned trial Court should not be influenced by it while deciding the case. The case may be decided on merits upon appreciation of evidence brought on record by the parties.