MUHAMMAD SALEEM JESSAR, J.---Through instant Criminal Bail Application Applicant Muhammad Ishaque seeks his release on bail in FIR No.04/2018-R&D (East), registered at Police Station Model Customs Collectorate of Appraisement (East), Customs House, Karachi for offences under Sections 2(s), 32-A and 79 punishable under clauses 1, 8, 14-A and 46 of section 156(1) of Customs Act read with allied laws. The case has already been challaned by the customs authorities and the same is now pending for trial before the Court of Special Judge (Customs and Taxation) Karachi, vide Special Case No.57/2018, (Re-State v. Sikandar Mirza and others). It appears that the bail plea preferred by the applicant before the trial Court was turned down by order dated 08.03.2018 thereafter the applicant approached this Court for bail through instant bail application.
2. The crux of the prosecution case as unfolded by the complainant Malik Muhammad Hashim, Senior Preventive Officer, are that an information was received in R&D Section of Collectorate that Messrs Al-Saudia Enterprises have imported Artificial Jewelry under B.L. No. ESAMASKHI 1718234 and filed GD KAPE-HC-128551-19-01-2018 for clearance thereof through their authorized Customs clearing agents Messrs Realex International. The information further revealed that the importers in active connivance with their clearing agents have mis-declared C&F value of the imported goods and submitted fake and fabricated import invoice to evade legitimate amount of government revenue. In order to confirm authenticity of the received information, a copy of B.L uploaded on importers in WeBOC system through their agents was forwarded to the concerned shipping agents Messrs Mass Forwarding and Trading Co, for confirmation of the B.L and provision of export G.D filed with Indian Customs at the port of loading i.e. Nhava Sheva, India. The shipping agents have provided a certified copy of the Indian Custom's Export S.B. No.1852535/28/12/2017 perusal of which revealed that total C&F value of the impugned goods is U.S.D 158,699,8737 as against U.S.D 7,255,6058 mis-declared by the importers in their under preference G.D and supported with a fake import invoice. In view of this, the magnitude of mis-declaration of value comes to 2187%. Payable amount of duties and taxes is worked out as Rs.16,470,622/- while recoverable amount comes to Rs.15,717,601/- after deduction of the upfront payment made by the importers. General Manager of the clearing agency namely Syed Mubashir Ali Qadri has been very instrumental for clearance of the impugned goods against suppressed transaction value on the basis of fake import invoice.
Therefore, the importers Messrs Al-Saudia enterprises and their clearing agent have committed fiscal fraud as defined under Section 32-A of the Customs Act, 1969, hence such FIR was registered as stated above.
3. I have heard learned counsel for the parties and have gone through the material made available before me on record.
4. Learned counsel for applicant contended that the applicant is innocent and has committed no offence as alleged in the FIR; besides, the goods viz artificial jewelry is importable item and, therefore, does not comes within the meaning of Section 8(i) of the Customs Act, 1969. He further contended that main contention of the complainant, as per FIR, is that the applicant being importer in active connivance with his clearing agents has mis-declared C&F value of imported goods and submitted fake and fabricated import invoice to evade legitimate amount of government revenue. He argued that neither the applicant has mis-declared value of imported goods nor has attempted to evade the actual amount of the taxes. Counsel further argued that the weight of the imported items is genuine as per its bill; however, Customs Authorities, with their mala fide intention and ulterior motives, have calculated the weight of boxes made of wood through which the importable items have been imported and that cannot be counted to be the weight of importable items. He contended that only to bring the case of applicant within the purview of Customs Act, the complainant has mentioned in his FIR Section 8(i), (1) 46 read with Section 156(i) of the Customs Act, 1969 read with allied laws. He pointed out that though the different . offences have been, applied in the FIR but all the Sections are . carrying two punishments.
He argued that the lesser punishment may be considered at the bail stage and lastly he prayed for release of applicant/accused on bail. 'In support of his contentions, learned counsel for the applicant has placed reliance upon cases of Muhammad All v. The State 2012 YLR 1060 (Sindh), Zahid Maseeh and another v. The State 2012 M LD 814, Muhammad Tanveer v. The State and another PLD 2017 (Supreme Court) 733.
5. Conversely, Mr. Aashiq Ali Anwar Rana, advocate for Customs Authorities and Mr. Muhammad Javaid K.K., learned Assistant Attorney General for Pakistan, have vehemently opposed the bail application on the ground that sufficient material have been collected by the investigatingagencyduring investigation and the applicant has been found involved in the commission of offence, therefore, he does not deserve concession of bail. Both the counsel have further contended that the applicant in connivance with co-accused have mis-declared the actual contents of the goods and evaded the huge amount in terms of the taxes thereby have caused loss to the National Exchequer as such his case does not call for interference. In support of his contentions, Mr. Aashique Ali Anwar Rana, advocate has placed reliance upon the cases of Zahir Hussain v. The State reported in PLD 2006 (Karachi) 397, Kamran and another v. The State reported in 2018 M LD 479 and Imtiaz Ali and another v. The State reported in PLD 1997 (Supreme Court) 1745.
6. I have considered the arguments advanced by the learned counsel for the parties. Admittedly, the offence with which applicants stand charged carries two punishments. In a case of Zahid Maseeh (Supra) Learned Single Bench of this Court while granting bail to an accused has discussed the issue of alternate sentence in para (6) of the Judgment which reads as under:-- "6............... Both the applicants are charged with offences under sections 215 and 395, P.P.C. Section 215, P.P.C. is a bailable offence and so far as section 395, P.P.C. is concerned, it provides that whoever commits dacoity shall be punished with imprisonment for life or rigorous imprisonment for a term which shall not be less than four years nor more than 10 years and shall also be liable to fine. In this regard, the learned counsel for the applicants referred to a bail order of this Court, reported in 2006 YLR 3167 (Shehzore v. State) in which it was held that section 395 P.P.C. provides that whoever commits Dacoity shall be punished with imprisonment for life or rigorous imprisonment for a term which shall not be less than four years nor more than ten years and shall also be liable to fine. The sentence not less than four years was incorporated by Ordinance III of 1980 on 3rd February, 1980 which make the intention of the legislature very clear that when the case is registered under section 395, P.P.C., the court cannot award sentence less than four years and can award sentence not more than ten years. When alternate sentence has been provided then lesser sentence should be considered by the court. The learned Single Judge following the principle laid down in 1985 PCr.LJ 2048 and 1994 PCr.LJ 2340, admitted the applicants to bail."
7. Now, reverting back to the Sections applied in FIR, it would be conducive to go through the definition and meaning of the word "Smuggling" as defined under section 2(s) subsection (ii) which reads as under:-- "2(s) Subsection (ii) manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the federal government in the official Gazette, which, in each case, exceed (one hundred and) (fifty thousand rupees) in value; or (iii) any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs- station.) and includes an attempt, abetment or connivance of so bringing expressions shall be construed accordingly;)."
8. The punishment provided by the Act for smuggling goods specified in Section 2(s) and Section 32(2) of the Act, the offence under Section 32(2) of the Act if proved by the prosecution, the offender shall be punished under Section 14 of the Act which does not exceed the bar contained under section 497(i), Cr.P.C. The Section 14 of the Act reads as under:- "14. If any person commits an offence under section 32;- Such person shall be liable to a penalty not exceeding [twenty five thousand] rupees or three times the value of the goods in respect of which such offence is committed, whichever be greater; and such goods shall also be liable to confiscation and upon conviction by a Special Judge, he shall further be liable to imprisonment for a term not exceeding three years, or to fine, or to both].
9. Further, if the contents of FIR assumed to be true to the extent of applicant made false statement before the Customs Authorities, the applicant was required to be served with a notice before the registering case against him in order to make clear version of prosecution and allegations levelled against applicant, it will be essential to reproduce the subsection (2) of Section 32 of the Customs Act, 1969, which reads as under:-- "32.... [false] statement, error, etc;- (1) if any person, in connection with any matter o customs; ?
(a) makes or signs or cases to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice certificate or other document whatsoever, or
(b) makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer, [or]
(c) submits any false statement or documents electronically through automatic clearance system regarding any matter of customs.] [knowing or having reason to believe that such document or statement is false] in any material particular, he shall be guilty of an offence under this section."
10.As regards the punishment for committing fiscal fraud is concerned, same is defined under Section 32-A, if proved by the prosecution, the offender shall be punished in terms of Section 14-A of the Act, which carries two sets of punishments, therefore, it will be essential to go through the same which reads as under:-- "14-A. If any person commits. an offence under section 32-A;- Such person shall be liable to a penalty not exceeding three times the value of the goods in respect of which such offence is committed and such goods shall also be liable to confiscation and upon conviction by a 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."
11. The referral of above provisions of the Customs Act, 1969 shows two punishments and it is settled law that the lesser punishment is to be taken into consideration at bail stage. As far as offence, which prima facie is non-bailable and accused cannot claim the bail as of his right in non-bailable offence. However, the Honourable Supreme Court of Pakistan has divided the category of non- bailable offences in 2 clauses/ categories. In case of Tariq Bashir and another v. The State reported in PLD 1995 (Supreme Court)
34. It would be appropriate to reproduce the relevant para of the judgment which reads as under:-- "As regards the first category of offences (punishable with death, or imprisonment for life, or with ten years' imprisonment) the provisions of section 497(1) are not punitive in nature. There is no concept of punishment before judgment in the criminal law of the land. The question of grant/refusal of bail is to be determined judiciously having regard to the facts and circumstances of each case. Where the prosecution satisfies the Court, that there are reasonable grounds to believe that the accused has committed the crime falling in the first category the Court must refuse bail. On the other hand where the accused satisfies the Court that there are no reasonable grounds to believe that he is guilty of such offence, then the Court must release him on bail. For arriving at the conclusion as to whether or not there are reasonable grounds to believe that the accused is guilty of offence punishable with death, imprisonment for life or with ten years' imprisonment, the Court will not conduct a preliminary trial/inquiry but will only make tentative assessment, i.e. will look at the material collected by the police for and against the accused and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the evidence and circumstances appearing in the case is neither desirable nor permissible at bail stage. So, the Court will not minutely examine the merits of the case or plea of defence at that stage."
12. As far as the contention of learned Assistant Attorney General for Pakistan as well as Prosecutor General (Customs) that this being a white collar crime, punishment provided by the law is imprisonment for ten (10) years or above would not fall out of the ambit prohibition on the basis of lower sentence mandated as minimum ceiling is concerned, the same carries no weight because it is the discretion of trial Court which ought to be exercised by it after conclusion of the trial and if it is o the opinion whether the offender shall be awarded maximum punishment provided by the law or the lesser sentence, however, it goes without saying that such observation would prejudice the case of accused. Further, at bail stage only tentative assessment is to be made and no deeper appreciation is permissible. Therefore, after recording of evidence, if the trial Court arrives at the conclusion that the prosecution has successfully proved its charge against accused, even then it is open for the trial Court to exercise his discretion to award lesser sentence or the maximum one.
13. Moreover, it is pertinent to mention here that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventive and, therefore, deprivation of liberty must be considered a punishment, unless it may be required to ensure the presence of accused during trial. The punishment begins after conviction and not before it, as in criminal justice system every man is deemed to be innocent until duly found guilty. It needs not to re-emphasize that the purpose of putting the un-convicted persons in custody is nothing but to secure their attendance at the trial. Even otherwise, life and liberty of a citizen is very precious and guaranteed under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 as observed by learned single Judge of this Court in the case of Zahid Masih (Supra).
14. In view of the above discussion, I am of the considered view that the offence with which applicant has been charged is carrying different cum alternate punishments and the lesser punishment, which obviously favours to an accused, is to be considered at bail stage; hence, the outcome of above discussion is that the case against applicant purely falls within the ambit of subsection (2) of Section 497, Cr.P.C. and requires further inquiry. Accordingly, instant bail application was allowed by short order dated 03.5.2018 and the Applicant Muhammad Ishaque was ordered to be released on bail subject to his furnishing solvent surety in the sum of Rs.500,000/- (Five Hundred Thousand Only) and P.R. bond in the like amount to the satisfaction of learned trial Court. These are the reasons for Said short order dated 03.05.2018.