1. ' By this common order I intend to dispose of the above 12 bail applications as they arise out of F.I.R.
2. Nos.30/87, 31/87 and 32/87 registered under section 156 (1) (14) of the Customs Act, 1969 and Section 5 (2) of Act II of 1947.
3. ' Applicants in Cr. Bail Applications Nos.122/88, 123/88 and 124/88 are the Customs officials i,e, applicants 1, 2 and 5 ares the appraisers, whereas applicants 3 and 4 are examiners in each of the above three bail applications: It may be observed that in the above three bail applications there are five applicants and they have filed the above three bail applications in respect of the above three F.I.Rs, However, Mr. Azizullah K. Shaikh, learned counsel for the applicants in the above three bail applications has submitted today that in Crriminal Bail Application No, 122 of 1988 the application in respect of applicant No,2 Mohammad Asif Khan and applicant No,3 Chaudhri Bashir Ahmed, may be treated as withdrawn, as they have not been challenged in respect of F.I.R.
4. No,30/87.
5. ' I would, therefore, order accordingly.
2. Whereas applicant in Criminal Bail Applications Nos. 242 of 1988 and 243 of 1988 is Maghan Mal, the proprietor of Mehran Exports and Ruby Enterprises, Karachi and is one of the accused in F.I.R.
6. Nos. 30/87 and 31/87.
7. ' Whereas applicant Dharamdas is the applicant in Criminal Bail Applications Nos. 249 of 1988, 250 of 1988 and 251 of 1988 and is one of the accused in the above three F.I.Rs, ' Whereas M. Yahya A. Aziz proprietor of Messrs Lala Adnan Enterprises, Karachi, applicant in Criminal Bail Application No, 252 of 1988 is one of the accused in F.I.R. No,32/88.
8. ' Haji Rafiq son of Haji Haroon, an employee of Munir Mushtaq, clearing agent is the applicant in Criminal Bail Applications Nos. 246 of 1988, 247 of 1988 and 248 of 1988 and is one of the accused in the above three F.I.Rs,
3. The facts leading to the filing of the above bail applications are that as a result of enquiry conducted by F.I.A. It came to light that synthetic embroided maxis and shirts of second-hand cloth, comprising 40 consignments worth ropes sixteen crores were booked from Karachi to London by (i) Messrs Lala Adnan Enterprises, (ii) Ruby Enterprises and (iii) Mehran Exporters Karachi. The goods were boarded on the vessel 'LANKA ASITHA' which sailed for London on 16-8-1986. However, at the request of the shippers the consignments were discharged at Colombo and trans-shipped to Dubai by vessel named "LANKA SHIRI" which reached Dubai in September, 1986. The goods remained lying at the port of Dubai and thereafter some at the port of Ajman uncleared by the consignees. On examination of the parcels at the ports of Dubai and Ajman, it was discovered that instead of the goods declared under the export documents, second-hand lunda shirts were exported with the object to claim rebate on the declared value of stitched maxis, and factually rebate was claimed and received by the above applicants Maghan Mal, Dharamdas and M. Yahya A. Aziz to the tune of crores of rupees. Three F.I.Rs, were registered under the Customs Act, inter alia, against the present applicants alleging therein that the customs officials in collusion with the shippers gave illegal pecuniary advantage to the shippers. It may be observed that inter alia the present applicants have obtained bail in respect of the above F.I.Rs, either from the Special Appellate Court (Customs) or from the Hon'ble Supreme Court. However, at the same time the above three F.I.Rs were lodged on 24-12-1987 under the above provisions of the Acts.
9. ' The applicants in the above Cr.Bail Applications Nos.122/88, 123/88 and 124/88 were arrested in respect of the above F.I.Rs, They had moved an application before the learned Special Judge (Central), at Karachi which was declined by an order, dated 7-2-1988, therefore, they filed the above bail applications.
4. On 18-2-1988 when the above three bail applications had come up for hearing, it was stated by Mr. Abdul Ghafoor Mangi, learned Assistant Advocate-General that the interrogation in respect of the above applicants was over and they were no longer required for further investigation. However, he suggested that the applicants may be admitted to interim bail and the hearing of the applications may be deferred, as the disposal of the same may prejudice or benefit the co- accused, who might approach this Court for bail. I had admitted the applicants in the above three bail applications to interim bail by my order of above date in the sum of rupees two Lacs each with one surety each in each of the bail applications by each of the applicants and P.R. In the like sum.
10. The above applications have come up, today, for confirmation of the bail, whereas the other aforesaid bail applications are in fact bail before arrest applications, as the applicants in the said applications have not yet been arrested in respect of one or more of the above three F.I.Rs, though they are in jail for the reason that they have not yet furnished surety pursuant to bail orders in respect of the F.I.Rs, registered under the Customs Act.
11. ' Mr. Azizullah K. Shaikh, in support of the above three bail applications has urged that the investigation in respect of the applicants in the above three bail applications is complete, inasmuch as they are not required for any further interrogation, as stated by Mr. Abdul Ghafoor Mangi, learned Asstt. A.G., there is no possibility of tampering of evidence as the case is based on documentary evidence, obtaining sanction under section 5 of Act II of 1947 from the Anti- Corruption Committee will take 1 or 1-1/2 years, that there is no material on record indicating that the applicants in the three bail applications have committed an offence under Act II of 1947 and that in any case the maximum sentence provided for under section 5 (2) is seven years or fine or both and, therefore, the bail is to be granted as a matter of course. He has referred to the following cases in support of his above submissions:
(1) Ch. Zahur Ilahi, M.N.A. v. The State PLD 1977 SC 273;
(ii) Said Mian and another v. Mian Said Baghdad and another, 1980 SCMR 420;
(iii) Haji Wali Muhammad v. The State 1969 SC NI R 233;
(iv) Mansha Khan and 2 others v. The State 1977 SCMR 449;
(v) Torab Shah v. The State, 1978 SCMR 430;
(vi) Mir Akhtar Khan Khattak v. The State, PLD 1982 Pesh. 128
(vii) Abdul Hay-uz-Zafar v. The State. 1983 P Cr. L J 2010; The ratio of the above cases seems to be that the custody is never intended to be used as a punishment but it is designed to facilitate investigation or trial byj making the accused available, whenever he is required and that if the case does I not fall under prohibitory proviso of section 497, Cr.P.C. And the maximum sentence is less than 10 years R.I., the Court will grant bail, unless there are some other compelling reasons to refuse the same.
12. ' Mr. Mangi, learned Assistant Advocate-General has not been able to point out any reason as to why the bail in respect of the above applicants in the three bail applications should not be confirmed. However, he has cited the case of Mohammad Sadiq v. Sadiq and others, reported in PLD 1985 Supreme Court, 182, in which the Hon'ble Supreme Court while construing section 497(2) in a murder case observed that bail is to be allowed only where no reasonable grounds exist for believing that accused has committed a non-bailable offence, but where there are sufficient grounds for further enquiry into the guilt, in such a case the accused is entitled to bail.
13. ' The above case has no application to the present cases for the reason that it was a case relating to murder where the sentence provided for is death or life imprisonment and, therefore, was covered by the prohibitory clause of section 497 Cr.P.C.
14. ' Since the applicants in the three bail applications are no longer required for further investigation and as no justifiable reason has been shown by the learned Assistant Advocate General for withholding the confirmation of the bail, I would, therefore, confirm the interim bail.
(5) As regards the Criminal Bail Applications Nos. 242 of 1988, 243 of 1988, 249 of 1988, 250 of 1988, 251 of 1988 and 252 of 1988, it may be observed that the applicants had approached the learned Special Judge (Central) Karachi for bail,' who by his detailed order dated 24-2-1988 declined the bail.
15. ' Mr. I.A. Hashmi learned counsel for applicant Maghan Mal has adopted the arguments of Mr. Azizullah K. Shaikh and has submitted that as a matter of fact the above applicant though is shown to be proprietor of Messrs Mehran Exports and Messrs Ruby Enterprises and is said to have allegedly received over rupees one crore rebate, but factually is a poor man and was made a scape goat. He has further submitted that there is an additional ground for grant of bail in respect of the above applicant as he is suffering from heart ailment. He has produced a certificate from a private practitioner in support of the above ground. He has also pointed out that though the above applicant is in jail but he has been shown as absconder.
16. ' Mrs. Ismat Mehdi learned counsel for applicant Dharamdas in Cr. Bail Applications Nos. 249 of 1988, 250 of 1988 and 251 of 1988 also adopted the arguments of Mr. Azizullah K. Shaikh and has further submitted that the name of the above applicant was not mentioned in the F.I.R. And that in the interim challan submitted by the prosecution, he has been shown as absconder, though he is in jail since 5-1-1988 in connection with the custom case. She has also submitted that M. Yahya A.
17. Aziz, applicant in Criminal Bail Application No,252 of 1988 is also in jail since 7-1-1988 in respect of the custom case and he is also entitled to bail on the above grounds.
18. ' On the other hand, Mr. A.G. Mangi learned Assistant A.G. Has pointed out that the principles applicable to an application for bail before arrest are different from those which are applicable to a bail after arrest, and in the absence of any mala fides on the part of the prosecution, the anticipatory bail cannot be granted, which in the present applications is lacking. In support of the above submission Mr. Mangi has referred to the case of Murad Khan v. Fazal-e-Subhan and another reported in PLD 1983 SC 82, in which the Hon'ble Supreme Court has lucidly enunciated the principles of granting bail before arrest.
19. ' In reply to the above submission of Mr. Mangi, Mr. IA. Hashmi and Mrs. Ismat Mehdi have submitted that factually the above applications are applications after the arrest, as admittedly the applicants have been in jail since over 2 months. It is an admitted position that the above applicants have been admitted to bail in respect of the F.I.Rs, registered under the Customs Act but they have not come out of jail for the reason that they have not been able to furnish the bail bonds. They have not yet been arrested in respect of the above F.I.Rs, as they are in judicial custody. The object of the custody as pointed out by the Hon'ble Supreme Court in the above case of Ch. Zahur Ilahi PLD 1977 SC 273 is to facilitate the investigation of the case, which stage has not come as the applicants are in judicial custody.
20. ' I am, therefore, of the view, that in fact the above applications are applications for bail before arrest in respect of the above three F.I.Rs, and, therefore, the ratio decided of the above Supreme Court case in the case of Murad Khan v. Fazal-e-Subhan and another, PLD 1983 Supreme Court, 82 is very much applicable. I do not see any mala fides on the part of the prosecution. On the contrary there is documentary evidence to indicate that the above applicants have received the amount of rebate mentioned in the F.I.Rs, I would, therefore, dismiss the above bail applications with the observation that it will be open to the applicants to move fresh basil applications after the arrest, upon the completion of investigation, which according to the Investigating Officer, Muhammad Sadiq, Assistant Director F.I.A. Will be completed within two weeks from the date of the arrest.
21. ' Applicant Haji Rafiq in Criminal Bail Applications Nos. 246 of 1988, 247 of 1988 and 248 of 1988 is shown as an employee of co-accused Mushtaq Muneer. The only part attributed to him is that he collected a cheque of rupees five lacs in respect of rebate as an employee of clearing agent and, therefore, prima facie there is no material to indicate that he was a party to the commission of the offence. Mr. Mangi, learned Asstt. A.-G. Has candidly submitted that since the applicant has been in jail in respect of the F.I.Rs, registered under the Customs Act since 2-1-1988, his case is a case of further enquiry.
22. ' I would, therefore, admit the above applicant to bail in the sum of rupees two lacs and one surety and P.R. In the like sum in respect of each of the three bail applications separately to the satisfaction of the Nazir of this Court.
23. ' These are the reasons in pursuance of short orders of even date.
24. Bail granted.