Petitioner has filed the instant petition on the facts and grounds reproduced hereinunder concisely that he is a car dealer and has a showroom in main Bahadurabad, Karachi. On 4th July when he was away from his house, some officials of respondent No, 1/Director Intelligence and Investigation FBR (in short "the respondent") visited his showroom and house for seeking him. On his return back to his house, the petitioner was informed about them and an FIR registered by them. He obtained a copy whereof and came to know that it was about some consignment seized by the respondent which was containing liquor instead of declared goods. The petitioner however did not find his name in the said FIR No,Appg-31/DCl/Div-I/FIR/2014, which was against Abdul Dawood Proprietor of M/s. A. Z. Corporation of Altaf Market and Muhammad Zubair that they allegedly had imported a consignment containing liquor of assorted brands. The petitioner failed to understand why he was being sought by the respondent because he had come to know that the importers, clearing agent and a front man namely Shahid Khatri were already arrested in the said FIR. Still he was being harassed by the respondent, hence finding no other way to thwart the harassment, he filed a CP No, D-3619/2014, but in response the respondent filed an interim challan in the court of Special Judge (link) Special Judge Custom and Taxation Karachi showing the petitioner as an accused, though there was no evidence against him. The petitioner in pursuance of the interim challan was arrested, tortured and sent to judicial custody. He filed a bail application before the trial Court but the same was dismissed vide order dated 17-4-2015. He repeated the bail application before the learned Special Appellate Court Sindh at Karachi, however there also he failed to succeed and his application was dismissed through an order dated 25-5-2015. The petitioner has preferred the instant petition, finding no adequate remedy for redressal of his grievances, with following prayers: "It is therefore respectfully prayed on behalf of the petitioner that the Honorable Court be graciously pleased to declare that the respondents have wrongly registered an FIR and the SRO does not empower them to exercise the powers under sections 32 and 16 or (s) of the Customs Act, 1969.
Further declare that the office of the respondents is not a Police Station in terms of Section 4(s) of the Code of Criminal Procedure and as the respondents do not maintain Register for recording of FIRs, the present FIR is not an FIR in terms of Section 154 of the Code of Criminal Procedure.
AND WHILE GRANTING SUCH DECLARATION, admit and enlarge the petitioner on bail, pending the trial of the case.
Any other relief which this Hon'ble Court may deem fit and proper in the Circumstances of the case"
2. Respondent filed para-wise comments in response to notice of the petition averring, inter alia, therein role of the petitioner, that during investigation it transpired that the petitioner was one of the beneficiary and associate in the crime, as he not only used to give instructions for disposal of Whisky/alcoholic liquor but he would also arrange payments of duty/taxes in respect of the consignment that actually contained liquor imported in the name and style of M/s. A. Z.
Corporation, Karachi under the garb of import of Test Liner Paper. Disclosing further material collected against the petitioner, it is stated that the co-accused Shahid Khatri used to collect duty/ taxes from the petitioner and the petitioner was arranging transport for delivering the Paper Rolls for disposal in and outside of Karachi whenever such need arose. On the basis of such investigation, the petitioner was nominated in the interim challan and was subsequently arrested.
The respondent has denied remaining contents of the petition in the comments.
3. Mr. Sohail Muzaffar, learned advocate for the petitioner at the very outset of hearing has stated that he except for pressing release of the petitioner on bail referred to in the last prayer clause of the petition, would not like to urge for other reliefs and has prayed that the petition may be converted into a bail application. Mr. Kashif Nazeer learned counsel for the respondent and learned Standing Counsel have not raised any objection thereto. Accordingly we convert this petition into the bail application and direct the office to number it as such. Learned counsel for the applicant in support of the merits of the matter has argued that the applicant has been nominated as an accused in the case only because of his act of filing earlier a Constitution Petition No,D-3619/2014, against harassm ent of the respondent. He has further contended that the name of the applicant does not appear in the FIR and there is no material available with the prosecution connecting him with the commission of alleged offence. He has further stated that the applicant is running his own showroom and has nothing to do with the accused involved in the case and merely on the basis of some insufficient evidence he has been sent behind the bars where he is languishing. In his arguments he has vociferously stated that neither the applicant is importer, transporter or clearing agent of any alleged consignment nor in that respect the prosecution does possess any evidence to support its accusation against him.
4. Mr. Kashif Nazeer learned counsel for the respondent has opposed the grant of bail to the applicant and with the help of the I.O. Has stated that against the applicant sufficient incriminating evidence has been collected by the prosecution and he is not only the direct beneficiary of the crime but has been participating actively in the whole process from paying taxes for the consignments for arranging the transport and accompanying with it as far an area as Lahore for its distribution. He has also contended that PW namely Abdul Jabbar in his statement under section 161, Cr.P.C. Has clearly implicated the applicant to be the person who used to arrange transport for the consignments and would pay for that.
5. We have considered the above points so advanced and have also perused the material available and have also had a tentative look over the material brought by I.O. Of the case.
Apparently the case (registered under several provisions of the Custom Act, 1969, the Imports and Exports (Control) Act, 1950, the Sales Tax Act, 1990 and Income Tax Ordinance, 2001) against the applicant has been setup by the prosecution on the basis of investigation following registration of the above FIR, during the course thereof his phone data record and the documents pertaining to his safaris/trips to Lahore coinciding with the timings of consignments sent there were secured. No doubt the name of applicant does not appear in the FIR, but it can hardly be considered a ground for extending concession of bail to an accused against whom sufficient incriminating material is found during investigation. Since we have had the occasion to look at prosecution papers containing mobile data record of the applicant showing his constant contact with the co-accused and the documents of the hotels where he stayed with the other nominated co-accused along with his bank statements of two different Banks depicting numerous transactions of huge amounts between the applicant and the other nominated accused, we feel that there is sufficient evidence in the shape of documents showing prima facie his nexus with the commission of offence. That material also neutralizes the claim of the applicant made by him in his earlier petition referred to above regarding his denial of any acquaintance with co-accused nominated in the FIR and it prima facie establishes not only his league with them but also strengthens the presumption of his being accessory to the crime. A perusal of the charge sheet reveals that during investigation further a huge quantity of liquor was recovered from godown situated at Saba Taj Godown in Site area Karachi at the tip-off provided by arrested accused namely Shahid Katri and Muhammad Javed who, through documentary evidence, were found in constant touch with the applicant over the issue in the FIR. That is not the only incriminating material placed before us, the statement of PW-Abdul Jabbar under section 161, Cr.P.C. Specifically implicating the applicant as a source behind arranging the transport for the consignments in and outside of Karachi has helped from our tentative view against him to the extent of prayed relief.
6. We do not want to part company with this order before reiterating the golden observations of the Hon'ble Supreme Court in the case of Munir Ahmed Dollar v. The State (PLD 2004 SC 822) that the bail cannot be granted to an accused on any hypothetical ground and because there is question in the case would not mean that the case is of further enquiry simply for the reason that it can be answered by the Court subsequently after evaluation of evidence. The accused has to show that there is no prima facie evidence connecting him with the commission of an offence. In the present case as stated above the prosecution has the material against the applicant, which for the purpose of deciding bail plea of the applicant has been found, sufficient by us. In the given circumstances we do not find the applicant entitled for release on bail in above case. Resultantly, we decline his prayer for bail so also remaining ones which his counsel has already not pressed.
However, we would like to direct the trial Court to examine the material witnesses, specially the Investigating Officer of the case within 45 days of this order, whereafter the applicant would be at liberty to repeat his application for bail before the trial Court that shall be decided on its own merits in accordance with law. The bail application is disposed of in above terms. The observation made herein shall not be read to effectuate merits of the case in any manner at the time of trial.