ZAFAR AHMED RAJPUT, J. By this common order, I intend to dispose of above listed criminal bail applications as the same, being arisen out of Crime/FIR being No. SI/MISC/22/2022-EIB/EXP-PMQB, registered under section 6/9-C, read with sections 14 and 15 of the Control of Narcotic Substances Act, 1997 (the "Act") at P.S. Customs, Karachi have been heard by me together.
2. Applicants/accused Fida Muhammad son of Ghulam Dastageer and Humair Qureshi son of Munir Qureshi through listed Cr. Bail Applications, respectively, seek post-arrest bail in aforesaid crime. Earlier their applications for the same relief bearing Nos. 177/2022 and 45/2023 in Special Case No. 95/2022 were dismissed by the Special Court-II (C.N.S.), Karachi vide orders, dated 17.12.2022 and 05.04.2023.
3. Brief facts of the case, as narrated in the FIR lodged on 22.08.2022 by AL Nawaz, Appraising Officer, Collectorate of Customs (Exports) Port Muhammad Bin Qasim, Karachi ("PMBQ") are that on 16.08.2022, a joint examination team comprising of examination staff of Collectorate of Customs Exports, Karachi and Collectorate of Customs Exports (PMBQ), Karachi examined a Container No. MSCU-6590981 ("the Container") at IC3 Yard, PMBQ in presence of representative of Clearing Agent and two musheers and recovered 380 Kg heroin wrapped over the cone beneath the fabric. It revealed that applicant Fida Muhammad was the actual owner of the Container.
4. Learned counsel for the applicant Fida Muhammad has contended that the applicant is innocent and has no nexus with the alleged offence and he has been falsely implicated in this crime with ulterior motives by the customs officials; that all the witnesses are official witnesses and sub-ordinate to the complainant, who have acted at the behest of the complainant to endorse his false and fictitious version; that a bare perusal of the primary data/record collected by prosecution reflects that the consignment of grey fabric cotton rolls was exported by co-accused Humair Qureshi, who is the owner of the export company i.e. M/s. Qtinity and he filed Goods Declaration No. KPPE-SB-298611 ("the said GD") electronically through their authorized clearing agent M/s. Al-Kasib as well as the financial instrument also pertains to M/s. Qtinity, which fact alone rules out the involvement of the applicant in the alleged crime; that the applicant has been reposed with the crime on the basis of fake and fictitious WhatsApp texts at the instance of two PWs, namely, Ali Raza Khan of M/s. Qtinity and Mudassir Hussain of Swift Shipping and the authenticity thereof would be determined at the time of trial; hence, the guilt of the applicant requires further inquiry; that the applicant is under incarceration since the day of his arrest merely on the allegation that he has committed an offence of heinous nature punishable with a maximum of death or life, while no reasonable grounds are available for implication of the applicant with the commission of the alleged offence. In support of his contentions, learned counsel has relied upon the cases of (i) Sh.
Muhammad Tasleem v. The State (2006 SCMR 468) (ii) Haji Inayat and another v. The State (2010 PCr.LJ 825) (iii) Muhammad Faisal v. The State (2006 YLR 3039) (iv). Ejaz Ali v. The State (2009 MLD 773) (v). Nasir Aziz and another v. The State (2020 YLR 1429) (vi). Mst. Hameeda Begum alias Hameedee and others v. The State (2009 YLR 73) (vii). Zahid Sultan v. The State and another (2019 YLR 2758) (viii). Ismaeel v. The State (2010 SCMR 27) (ix). Naveed Asghar and 2 others v. The State (PLD 2021 SC 600) (x). Inzar v. The State (2013 PCr.LJ 843) (xi). Gul Zaman v.
The State (1999 SCMR 1271) and an unreported order, dated 31.03.2023, passed by a Single Bench of this Court in Cr. Bail Applications Nos. 565 and 566 of 2023.
5. Learned counsel for the applicant Humair Qureshi has maintained that the applicant is an exporter, he is the owner of M/s. Qtinity and is a victim of circumstances; that the applicant has not been nominated as an accused in the FIR, on the contrary he was shown in Column No. 8, serial No. iii of the FIR as a witness of the case; that the applicant had informed the Customs Authority through his letter, dated 13.07.2022, that the consignment en route to Rotterdam belonged to the co-accused Fida Muhammad, who exported the same through his company, and made a requested for recalling of the same; that the applicant was shown as an accused in the interim Challan, dated 25.10.2022, without assigning him any specific role; that from the findings of the I.O. in his final challan, it is clearly established that the applicant was not involved in the crime and it was co-accused Fida Muhammad who was the actual owner of the impugned consignment; that the co-accused Taha Hussain Khan was granted pre-arrest bail by the Special Court-II (C.N.S.), Karachi and the applicant's role is similar to that of Taha Hussain; hence, he is entitled to bail on rule of consistency; that the applicant has not done any act in the commission of crime neither did he have any mens rea for the alleged crime of procuring, concealing, exporting and smuggling narcotics; that the learned Special Court while rejecting bail plea of the applicant has observed in its Order, dated 05.04.2023 that the applicant was negligent by not obtaining an undertaking from the actual owner of the impugned consignment, namely, Fida Muhammad, though it is established principle of criminal jurisprudence that the negligence cannot amount to criminal liability: that from the plain reading of the FIR, Challans and Statements of P.Ws, it is crystal clear that the applicant's case falls within the ambit of further inquiry entitling him to the concession of post- arrest bail. In support of his contentions, learned counsel has relied upon the cases of (i). Shoaib Sultan v. The State (2015 YLR 855) and (ii). The State through Deputy Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayum (2001 SCMR 14).
6. Conversely, learned counsel for the Customs Department and Assistant Attorney Generals have resisted the bail applications on the grounds that the applicants are exporter of the impugned consignment, who got issued Form-E and filed fake documents; that the applicants are involved in smuggling of heroin in huge quantity. In support of their contentions, they have relied upon the cases of (i). Noor Khan v. The State (2021 SCMR 1212) (ii). Bilal Khan v. The State (2021 SCMR 460)
(iii). Fareed Ahmed and another v. The State (2023 PCr.LJ 583) (iv). Lutufullah v. The State (2020 PCr.LJ 184) (v). Syed Muhammad Ayaz v. The State (2020 YLR Note 160) and (vi). Muhammad Suleman v. The State (2022 MLD 735).
7. Heard, Record perused.
8. It appears from the perusal of the record that M/s. Qtinity, having its office in Karachi, electronically filed the said GD destined to Rotterdam, Netherlands having the Container through Clearing Agent M/s. Al-Kasib by declaring the description of the goods as 100% Cotton Rolls Grey Fabric (plain weave) under PCT Heading 5209.1100, with declared value of 45464.52 EURO and weight of 12,310 Kg against Financial Instrument No. BAF-EXP-024206-13062022 of Bank Alfalah Limited, Pakistan. The WeBOC system allowed loading under yellow channel On the basis of profile of the exporter.
9. It further appears that earlier, on 01.07.2022, FIR No. SI/MISC/201/2022-EXP-EW was lodged by the Collectorate of Customs (Exports) Karachi on recovery of 47kg Methamphetamine in export consignment of the said Exporter and Clearing Agent destined to Melbourne, Australia vide Goods Declaration No. KPEX-SB-182651, dated 29.06.2022. During investigation in the said FIR, it transpired that one more consignment having the Container of the said Exporter and Clearing Agent was on its way to Rotterdam, Netherlands vide the said GD. The Exporter i.e. M/s. Qtinity through its proprietor Humair Qureshi vide letter, dated 13.07.2022, also intimated to Collector of Customs, Export Collectorate, Karachi that his Container was on its way to Rotterdam, Netherlands vide said GD and requested for arrangements of its return at his cost; hence, the Shipping Agency i.e. M/s. Sharaf Shipping Agency (Pvt.) Limited, Karachi vide letter, dated 07.07.2022, as directed by the Customs Authority to return the Container from Rotterdam to PMBQ without off loading at Rotterdam. The Shipping Agency vide letter, dated 11.08.2022, informed that the Container was being returned to PMBQ on vessel MSC PINA-IP227R. On arrival of the Container on 16.08.2022 at PMBQ, the shipping documents from Terminal Operator were called in order to verify the sanctity of shipper and Customs seals. The seals bearing No. 053403 and 66172 were found intact and the Container was shifted from Qasim International Container Terminal Yard to IC3 Yard at PMBQ under Customs squad in presence of the two musheers, namely, Mr. Zaheer Ashraf, Appraising Officer and Sepoy Mr. Farhanullah. A joint examination team comprising of examination staff of Collectorate of Customs Exports, Karachi and Collectorate of Customs Exports (PMBQ), Karachi was constituted to examine the Container at IC3 Yard, PMBQ. The complainant along with Joint Team examined the Container in presence of representative of the Clearing Agent i.e. Ghulam Haider Bhutto, and two musheers, namely, Zaheer Ashraf, Appraising Officer, and Arshad, IC3 Surveyor, by destuffing the goods of the container, which led to recovery of wrapped cones beneath the fabric. Upon further examination, the suspicious substance in powder form was found to be properly concealed by wrapping all over the cone. The cone was used as inner support for wrapped fabric. The recovered goods were tested on the spot with the help of disposable testing field kit for narcotic substances which gave positive inference of presence of heroin. Total 380 Kg of heroin was recovered from 396 rolls. Each of concealments was collected separately in plastic bags and six representative samples weighing 10 grams each were collected in plastic pouches/jars in presence of musheers for the purpose of lab tests; out of them, three samples were sent to Custom House Laboratories, which determined Diacetylmorphine hydrogen chloride i.e. heroin and three samples were sent to HEJ, Karachi. The recovered narcotics along with the Container were seized under mashirnama prepared on the spot. The Customs Collectorate conducted preliminary inquiry on the basis of information passed and investigation conducted by the Collectorate of Customs (Exports), Karachi in earlier FIR, dated 01.07.2022, and it was revealed that the criminal activity of narcotics smuggling was performed through export consignments by applicant Fida Muhammad who had been linchpin in narcotics trafficking and effected exports being actual owner of the impugned goods.
10. It also appears that applicant Fida Muhammad during his business activities from 04.02.2022 to 29.06.2022 shipped six consignments to four different destinations by using services of three different export companies. Out of them, he used financial instrument/services of the M/s. Qtinity in following three shipments:-
(i) Consignment of cotton rolls grey fabric, exported vide GD No. KPEX-SB-147422, dated 15.04.2022 destined for Rotterdam
(ii) Consignment of cotton rolls grey fabric (plain weave), exported vide GD No. KPPE-SB-298611, dated 14.06.2022 destined for Rotterdam (subject matter of the present FIR)
(iii) Consignment of Himalayan Pink Salt vide GD No. KPEX-SB182651, dated 29.06.2022 to Melbourne, Australia. ((subject matter of the FIR No. SI/MISC/201 2022-EXP-EW)
It further appears that the Container was not scanned or examined physically at Terminal/Port, as the Terminal Operator scans only those containers, which are referred to by any Government Agency with specific request of scanning. In the instant case no Government Agency requested for the scanning of the Container and the Container was processed in the yellow channel facility of the WeBOC system on the basis of profile of the exporter. It also appears that, on 14.06.2022, applicant Fida Muhammad made impugned shipment through M/s. Qtinity by hiring clearing services of M/s. Al-Kasib. As per material available with prosecution, applicant Fida Muhammad procured grey fabric and the machinery for packing purposes; packing of goods and narcotics was made by his employees/accomplices under his supervision at Plot No. 536, Sector 7-A, Korangi Industrial Area, Karachi, near Chamra Chowrangi, Korangi which he acquired on rental basis; he himself booked the Container through freight forwarder M/s. Swift Shipping Agency (Pvt.) Limited and uploaded the Container Release Order on WhatsApp group (Qtinity/Swift/Rotterdam) for intimation and coordination of the group members; he uploaded weighment of the Container on afore- mentioned WhatsApp group for intimation and further processing for Customs purposes.
11. As regard applicant Humair Qureshi, it appears that he is the proprietor of M/s. Qtinity that shipped three consignments owned by Fida Muhammad including the two from which narcotics were recovered. As per prosecution, he arranged financial instrument for the shipment of the impugned consignment to Fida Muhammad but in good faith. From the Final Challan, it is established that he failed to exercise due diligence and thereby he allowed unauthorized use of his firm (M/s. Qtinity) by Fida Muhammad to export his consignment. Such act of the applicant Humair Qureshi is in violation of section i55E of the Customs Act, 1969 for which User ID of M/ s. Qtinity has been blocked. However, as per material available with prosecution, the said applicant has not been found involved in purchasing of fabric and machinery for using in smuggling of narcotics or in hiring of warehouse where the goods were placed and packing was done or in funding of the shipment; transportation of the goods from the warehouse to the port. Besides, it is also an admitted position that the said applicant himself wrote a letter dated 13.07.2022, requesting the Customs Authority for recalling of the Container. It is also a matter of the record that the said applicant was initially made a witness in the FIR. It is also an admitted position from the record that no incriminating evidence is available with prosecution against the said applicant to connect him with the commission an offence under the Act. Merely using export I.D, license, etc., of the said applicant's company does not constitute per se any offence under the Act. Hence, in such a situation keeping the said applicant behind the bars for an indefinite period will serve no purpose.
12. From the tentative assessm ent of the evidence on record, it appears that the prosecution has sufficient material against the applicant Fida Muhammad to connect him with the commission of alleged offence carrying punishment for death or imprisonment for life. No case for granting bail to him on the ground of further inquiry has been made out. Every hypothetical question which could be imagined would not make it a case of further enquiry simply for the reason that it could be answered by the trial Court subsequently after evaluation of evidence.
His claim with regard to false implication is an issue that cannot be attended without going beyond the scope of tentative assessment, an attempt prohibited by law. The case law cited by the learned counsel for applicant Fida Muhammad being on distinguishable facts do not advance the case of the said applicant for the grant of post-arrest bail. It may be observed that trafficking/smuggling of heroin in huge quantity can have devastating effects on the society generally and it is a threat to honour of the country in international community particularly; hence, Cr. Bail Application No. 71 of 2023 filed on his behalf is dismissed, accordingly.
13. So far, the bail plea of applicant Humair Qureshi is concerned, I have found the case against him as one of further inquiry as envisaged under subsection (2) of Section 497, Cr.P.C.; consequently, he is admitted to post-arrest bail subject to his furnishing solvent surety in the sum of Rs.10,00,000/- (Rupees Ten Lac Only) and P.R. Bond for like amount to the satisfaction of the trial Court.
14. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicants on merits. In case applicant Humair Qureshi misuses the concession of bail in any manner, it would be open for the trial Court to cancel his bail after issuing him the requisite notice.
15. Above are the reasons of my short order dated 16.06.2023.