' ABDUL RASOOL MEMON, J.--The petitioners being involved in references which are pending trial in the NAB Courts Karachi, filed these petitions for grant of pre-arrest bail and quashment of the References. (Reference numbers are mentioned in each interim bail order whereby the petitioners were admitted to interim pre- arrest bail, copies whereof have already been sent to trial Court).
2. They were admitted to interim pre-arrest bail and today their petitions are fixed for confirmation or otherwise.
3. Case against the petitioners is that they being clearing agents are involved in misuse of Afghan Transit Trade Containers which did not cross the border as mentioned in the references and have been held responsible for loss of millions of rupees.
4. At the very outset, learned counsel for the petitioners did not press their prayer for quashment of References in question. However, they have argued that the petitioners are innocent and have been falsely implicated; they have acted only as clearing agents and performing their duties in terms of the relevant rules and regulations of Afghan Trade transit; that the petitioners neither are beneficiary nor have any concern with the alleged misuse of Afghan Transit Trade; that there is no role of either clearing agent or principal appraiser in Afghan Trade Transit; that the petitioners have never had the physical control over the goods nor had any role in the sealing of .The containers and delivery to the bounded carrier and there are various carriers against the Trip Detail Report such as NLC or Pakistan Railway; that the cases were investigated and enquired but no enquiry or investigation has been made from the carriers viz. NLC or Pakistan Railways; that malafidely the petitioners have been booked in the references and if they are remanded to custody then they will not only be insulted, disgraced but also humiliated too and that is a valid ground for confirmation of hail. They have further contended that in similar circumstances hails have been granted to some other clearing agents by Division Benches 'f this Court in C.Ps. Nos.2833 of 2013, 2104 of 2012 and 1022 of 2013 and even the custom principal appraiser has been admitted to post arrest bail by this Court in C.P. No,D-2833 of 2013, therefore, as a rule of consistency the present petitioners are also entitled to the same relief; that on technical grounds if the petitioners are declined concession of bail then definitely after arrest they will be entitled to bail on the rule of consistency and no useful purpose will be served for sending them in judicial custody. In support of their contentions they have placed reliance on the case of Muhammad Ramzan v. Zafar Ullah and others (1986 SCM R 1380). They, therefore pray for confirmation of bail.
5. Mr. Noor Mohammad Dayo ADPG NAB on a query has admitted that co-accused have been admitted to post arrest bail in C.Ps. Nos.D-1022 of 2013, D-2736 of 2013, 2717 of 2012 and 2833 of 2013 whose case is similar/identical to that of present petitioners. It is also not disputed that references have been filed before the NAB Court; that after grant of interim pre- arrest bail accused/petitioners have joined the proceedings in the NAB Court and there is no allegation of misuse of this concession. However, they pray for modification of the order that instead of furnishing surety, the petitioners may be directed to deposit amount in addition to the surety equivalent to loss sustained by government exchequer.
6. Messrs Syed Amjad Ali Shah DPG NAB,. Hyder Shaikh advocate for FBR and Waleed Ansari DAG have adopted the arguments of Mr. Noor Mohammad Dayo ADPG NAB.
7. We have given anxious consideration to the arguments of learned counsel for the petitioners as well as learned ADPG NAB and the case-law cited by them.
8. The allegations against the petitioners are that they being clearing agents have violated the terms of license and are involved in the misuse of Afghan Trade Transit Containers. On similar allegations bails have been granted by this Court to the petitioners mentioned in Constitutional Petitions Nos.D-2736 of 2013, D-1022 of 2013, D-2868 of 2013 and D-2104 of 2012 (copies of the bail granting orders are already placed on record) treating their case falling within the meaning of further inquiry while in C.P. No,D-2104 of 2012 while disposing of the petition for grant of post arrest bail in similar facts and circumstances this Court has discussed the role of clearing agent as under: "Thus in this foolproof mechanism prima facie 'there is no role of either clearing agent or Principal Appraiser. Apparently they never had the physical control, over the goods nor had any role in the sealing of containers and the delivery to bonded carrier or their authorized carrier against Trip Detail Report (TDR) such as NLC or Pakistan Railways."
9. Reverting to the contentions of the learned counsel for the NAB that as there is no mala fide on the part of the prosecution therefore the petitioners are not entitled to pre-arrest bail. We are of the view that the petitioners have made out a case for further enquiry. Moreover, in the grounds of petitions for bail and in the affidavit of the petitioners they have also alleged mala fide against the NAB authorities, therefore, no useful purpose would be served for remanding the accused/ petitioners to jail custody on any technical grounds. Therefore, in view of the case of Mohammad Ramzan (quoted supra) we do not see any reason to deviate from exercising discretion in this matter, as exercised by Division Benches of this Court in the aforesaid petitions.
10. So far second contentions of the learned counsel for the NAB that the amount of surety may be modified to security, in this context two orders passed in similar facts and circumstances are placed on record passed by a Division Benches of this Court in C.P. No,D-2736 of 2013 and other 2104 of 2012 in both these cases the post arrest bail was granted to the accused who were the clearing agents on furnishing surety in the sum of Rs,1.00 million and Rs,2.00 million respectively and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.
11. Moreover, the purpose of release of accused on surety is to ensure his attendance on each and every date of hearing before the trial Court till conclusion of trial and the person who stands surety executes surety bond in the required sum or money with undertaking to produce the accused on each and every date of hearing. Provisions of section 499, Cr.P.C. Provide complete mechanism for securing the presence of the accused before a Court or before police officers including the consequences of non-appearance. The object of calling upon the accused for furnishing surety is not to penalize them but to ensure their presence in Court, therefore, the amount of surety must be fixed with regard to nature of offence so that every object of granting of bail is not defeated and the applicant may not suffer agony of jail unnecessarily for the reasons beyond his control.
12. In the above circumstances, the contention of the learned DPG NAB that the petitioners may be directed to deposit cash amount instead of surety already furnished by them as per interim order, is without any substance and carries no weight.
13. In view of the above discussion, the petitioners have succeeded to make out their case for confirmation of bail. Accordingly, interim pre-arrest bails already granted to the petitioners are hereby confirmed on same terms and conditions on which they were admitted to interim pre- arrest bail. It is clarified that if the petitioner misuses the concessions of bail, the trial Court may proceed against them and forfeit the sureties in accordance with law. For this purpose the Nazir of this Court is directed to send duplicate/photostat set of surety papers of each surety to the trial Court for record.
14. It is relevant to mention here that the observations made hereinabove are tentative in nature and the trial Court may not be influenced by the same at trial.