1. ORDER TUFAIL H. EBRAHIM, J.---This pre-arrest bail application has been moved on behalf of applicant Inamullah Khan, after dismissal of his bail application by Special Judge (Customs and Taxation), Karachi, vide order dated 4-3-2011, who has been involved in Crime No.SI/Misc/03/ Inquiry/ AFU/Exp/2011, registered for violation of sections 32, 32(A) and 37 of the Customs Act, 1969, punishable under clauses 3(1), (10),. (14), 14(a), '(77),- (81) and (82) of section 156(1) read with section 178 of the Customs Act, 1969.
2. The facts leading to the filing of the present bail application as mentioned in the F.I.R. Are as under:- "During reconciliation/liquidation of the data of pending Mate Receipts (M.Rs) of exports, it was observed that 78 GDs showing export of Leather Jackets, a rebateable item, filed in the name of Customs Clearing Agent Messrs Al. Maqsit Enterprises CHAL No.2361 on behalf of exporters Messrs Malik Enterprises, Zoha Apparel, Z.A. Corporation, Skin Art. Leather and Star One Enterprises were not available physically. Since export against three GDs involved substantial amount of rebate, it was therefore apprehended that, a major fiscal fraud was being committed: Accordingly the relevant data/record from all concerned quarters was obtained. Scrutiny of the said record transpired that out of 7$ GDs, Rebate Claim of seven (7) GDs Nos.KAFE-28676, 28677, 29337, 29338, 29340, 29341, and 29342 dated 16'40-2010 were filed and an amount of About Rs.1.3 million was obtained by Messrs Malik Enterprises vide Cheque Nos.945848, 945867-and 945783.
3. Scrutiny/cross-matching in respect of above Rebate Payment revealed that none of the consignment relating to the above mentioned 7 GDs was passed in, Examined and Shipped through any Airline, thus establishing the fact that a fiscal fraud had been committed and the payment of 1.3 million rupees has-been obtained fraudulently. Similar data also depicted that nine
(9) fraudulent Rebate Claims are also shown as filed by Messrs Zoha Apparel and Malik Enterprises and are in the process being sanctioned/paid, the same have now been stopped due to the surfacing of this fraud. Further investigations of various aspects of the fraud including the role of Customs Clearing Agent, staff, abettors, beneficiaries, associates of all the companies involved in above 78 GDs is being conducted."
4. Thereafter interim challan dated 6-2-2011 was presented in the trial Court on 7-2-2011, wherein name of the accused did not appear. Thereafter supplementary interim challan dated 14-3-2011 was also presented in the trial Court on 15-3-2011, wherein for the first the name of the applicant was included.
5. It is contended by Mr. Aquil Ahmed, learned counsel for the applicant, that the applicant is working as Lower Division Clerk (LDC) in Accounts Section of Pakistan Customs and is innocent and has been falsely implicated in the case by the prosecution with ulterior and mala fide intentions on the allegations that he had misplaced the files relating to the rebate claims. It has been argued that the name of the applicant does not appear in the F.I.R. Nor any role has been assigned to him, however, to falsely implicate the applicant and to save the skin of the customs officers the applicant was implicated in the supplementary challan dated 14-3-2011.
6. Per learned counsel the alleged offence as per the F.I.R.. Had occurred on 7-10-2010, but F.I.R. Was lodged on 7-2-2011 and no plausible explanation has been given for the delay. It is contended by the learned counsel for the applicant that the main accused are the custom officers who have approved, processed and sanctioned the claim resulting in issuance of the said cheques, but surprisingly none of them has been arrested and the applicant has been made scapegoat who has no nexus whatsoever with the commission of offence. It is argued that the applicant has played no role in the processing of the rebate claims and the applicant was not posted/ performing in Accounts Section and he was deputed to work at Customs Services Club, Kemauri, Karachi vide office order dated 11-10-2010. It has also been argued that the applicant has no concern with the record/files as he was not Incharge of the Record Room and there is no documentary evidence or any other evidence which would show the involvement of the applicant in the alleged crime. It is further stated that no departmental inquiry was commenced against the applicant and the applicant has an impeccable service record comprising over 26 years. Learned counsel for the applicant has further argued that the applicant had no nexus with the clearing and forwarding agents, the beneficiary companies, the opening of fake bank accounts, the filing; processing and approval of cheques. It is further submitted that all the offences are bailable and even punishment for offence committed within the meaning of section 32-A is for a term which may extend to ten years but shall not be less than five years and therefore lesser punishment prescribed by the statute should be taken in account while considering bail application.
7. All relevant documents, and bank records in respect of the said transactions are available with the prosecution and the applicant is, therefore, not required for further investigation. It has been contended that the applicant is a law-abiding citizen and has no criminal record and there is no apprehension that the applicant would tamper the prosecution evidence. In support of his contention learned counsel has further relied upon the arguments forwarded and case-law relied by the counsel' for the applicant in Special Criminal Bail Application No.3 of 2011.
8. Learned Standing Counsel has opposed the grant of bail on the grounds that the applicant has committed fiscal fraud within the meaning of sections 32, 32-A and 37 of the Customs Act and was responsible for the custody of the rebate files. However, it was admitted that the officers of Customs Department, who had processed, examined and approved the rebate applications and passed necessary orders for issuance of the cheques have not been arrested, except for one examining officer.
9. I have heard the arguments of the learned counsel and the Standing Counsel and perused the record and case-laws cited by the learned counsel of the applicant.
10. Name of the applicant does not appear in the F.I.R. And his name appears in the Supplementary Interim Charge Sheet presented on 15-3-2010, according to which the applicant was held to be responsible for removing/misplacing the files relating to the rebate claims, for which cheques have been issued to fake companies.
11. From the record it prima facie appears that the applicant has played no role in the processing of the rebate claims and the applicant was not posted/ performing in Accounts Section and at the relevant time when the claims were processed and cheques were issued, he was deputed to work at Customs Services Club, Kemauri, Karachi vide office order dated 11-10-2010. From the record it appears that the applicant has no concern with the safekeeping of the rebate files as he was not Incharge of the Record Room and there is no documentary evidence or any other evidence which would show the involvement of the applicant in the alleged crime.
12. Prima facie the applicant was not involved in the preparation or filing of the bogus/false claims nor processing the cheques or having any direct dealing with customs clearing and forwarding agents or the beneficiaries or the opening of any bank accounts of the fake companies. The Customs Officers have not been implicated or arrested and the matter in relation to and concerning them is said to be under further investigation. Certain formalities as to issuance of notice within the meaning of section 32-A of the Customs Act have not been complied with. None of the punishments for the alleged offences as per the F.I.R. Falls within the prohibitory clause of section 497; Cr.P.C., except for section 32-A of the Customs Act, where punishment prescribed may extend for a period of ten years but shall not be less than five years and if law is not stretched in favour of the prosecution and a lenient view is taken at the time of granting bail then this offence may also not fall within the prohibitory clause. The accused is no longer required by the prosecution for further investigation or recoveries. The entire evidence against the applicant comprises of documents, which are in the possession of the prosecution and there is no probability that the applicant will be able to tamper the evidence or the prosecution witnesses. As consistently held by this court as well as by the apex court in cases of similar nature that no useful purpose will be served by keeping the applicant behind bars and concession of bail should not be withheld as punishment. The question as to whether the applicant is responsible for removing and/or misplacing the rebate files and/or has connived and/or abetted with the persons who have allegedly played fraud will have to be decided by the trial Court after evidence has been led by the parties.
13. In the circumstances and facts of the case, it is my tentative view that it cannot be said that there is strong and substantial reason to believe and connect the applicant to the commission of the alleged offences. The applicant has made out a case of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. And in the circumstances is entitled to the benefit of bail.
14. Accordingly the interim pre-arrest to the applicant is confirmed on the condition that the applicant shall submit one additional surety in the sum of Rs.100,000 (Rupees one hundred thousand) and personal bond in the like amount to the satisfaction of the Nazir of this Court.
15. The above observations are tentative in nature and the trial Court shall not be influenced by the same and decide the case on merits on the basis of the evidence to be adduced by the parties.