' This is a petition seeking bail before arrest for one Riaz who, alongwith three others, stands accused of offences punishable under sections 3 and 4 of the Prohibition (Enforcement of Hadd)
Order No,IV of 1979 read with sections 156(1)8 and 157 of the Customs Act of 1969 vide F.I.R. No 67 dated 3-7-1989 of Police Station Garhi Shahu of Lahore. This F.I.R. Was recorded on the basis of a statement, in writing, made by one Akram Nizami, an Intelligence Officer of the Customs Intelligence.
2. Through this F.I.R. The complainant Akram Nizami, an Intelligence Officer in the Customs Intelligence, had alleged that Naseer Azhar, an Assistant Director of Customs Intelligence in Lahore, had received secret information that one Riaz Minhas (the present petitioner), who was the Managing Partner of a Customs Clearing and Forwarding Agency, was engaged in smuggling 'Heroin' of Afghanistan origin to foreign countries through the Dry Port of Lahore and that such 'Heroin' was then lying in his office situate on Allama Iqbal Road in Garhi Shahu, Lahore.
3. It was further alleged that in pursuance of this information, a raiding party was constituted which raided the office room of Riaz petitioner at about 11-30 a.m., and recovered a travelling hag which was lying under the office table of the petitioner. This hag, which was not locked, was opened and was found to contain four packets, each carrying one kilogram of 'Heroin' and a letter addressed to Riaz petitioner by one Sahibzada Ali Gul. Samples of the 'Heroin' powder were duly drawn from each of these four packets, were sealed and were sent to the Chemical Examiner for analysis.
4. Riaz petitioner was not present in his office as he had not come to the office since morning.
However, three other persons, namely, Maqbool (the office peon), Salah-ud-Din (the office clerk) and one Shahid Masood, a visitor, were present in the office at the time of the said raid and all three of them were arrested at the spot.
5. Being accused and not arrested as aforesaid Riaz petitioner moved the learned Sessions Court for his release on bail before arrest whereas his co-accused petitioned the same learned Court for their release on bail after arrest.
6. All these matters came up for hearing before a learned Additional Session Judge at Lahore, who vide his order dated 12-7-1989, admitted Malpoi, Salah-ud-Din and Shahid Masood to bail after arrest but dismissed the application of the present petitioner on account of his absence from the Court after refusing adjournment sought by the petitioner because of his illness which was certified by a doctor.
7. Hence this petition which seeks bail only in respect of offences punishable under the IIadd Order as the petition in respect of offences under the Customs Act is stated to he pending before the learned Customs Judge.
8. This petition came up before me on 18-7-1989 when I issued notice to the State for 23-7-1989 and released the petitioner on interim hail before arrest in the meantime.
9. On 23-7-1989, the arguments were partly heard and the matter was adjourned to the next day.
Only an A.S.I. Was present with record and I verbally directed him to ask the Customs Intelligence Officers also to assist the Court on the next date of hearing.
10. The Customs Intelligence Officers accordingly appeared on the next date alongwith the learned Standing Counsel for the Federation who was heard at some length and the matter was adjourned to 5-8-1989 to enable the learned counsel for the petitioner to make his submissions.
11.' On 5-8-1989, the learned Standing Counsel submitted that the Customs Intelligence Department were still looking into the matter and sought time to arrive at some conclusions.
12. The matter was accordingly adjourned to 4-9-1989 on which date the arguments were partly heard and have been concluded today.
13. As a result of the investigations and the inquiries conducted by the local police of Police Station Garhi Shahu as also by the Customs Intelligence, the prosecution case, which has been finally stated is, that a Pathan came to the office premises of Riaz petitioner at about 8.30 a.m., on 3- 7.1989 and met Maqbool co-accused who is a peon in the office of Riaz petitioner and who had been employed assuch just about ten days prior to the raid. The said Pathan allegedly asked the said Maqbool about Riaz petitioner and on being informed that he (Riaz petitioner) had not come to the office, this Pathan left a bag with Maqbool for Riaz petitioner. This bag was an ordinary travelling hag and was not locked. After some time, Salah-ud-Din co-accused, who is a clerk in the office of Riaz petitioner and was also employed only about ten days ago, also reached the office and Maqbool accused informed Salah-ud-Din co-accused about this bag. Both of them, opened this bag and found four packets containing some powder and took the same to one Nisar who is a peon in the adjacent office. This Nisar told these two persons that this powder was 'Heroin'. Salah- ud-Din accused is then stated to have rung-up the residence of Riaz petitioner and to have informed him about this bag and its contents and according to the statement of Salah-ud-Din, recorded by the I.O., Riaz petitioner told him to throw away the hag. Just as this telephonic conversation was going on, the Customs Intelligence party reached the premises in question and recovered this bag from under a table. One Shahid Masood accused who was a visitor to the office and was also present there, was also arrested as abovementioned.
14. On my inquiry, Mr. Naseer Azhar, Assistant Director, submits that the secret information received by him with respect to the presence of 'Heroin' in the office premises of Riaz petitioner was not through any regular source but was through an anonymous call received by him at about 9-30 a.m.
15. The learned counsel for the petitioner submits that the case registered against the petitioner is the result of malice and had faith.
16. Substantiates this plea by stating that the F.IA. At Lahore had registered a case bearing No,15 dated 9-3-1988 regarding heavy losses caused to the public revenue through evasion of duty by Messrs Ateeq Enterprises with the active connivance of the employees of the Customs Department and that the petitioner is a witness in the said case who has fully implicated the officers of the Customs Department in the said matter.
17. The said F.I.R. Is on record as Annexure 'C' and a copy of the statement of Riaz petitioner recorded under section 164, Cr.P.C. On 9-3-1988 in the said case is Annexure 'D'
18. This position has not been denied by the Customs Intelligence Officers present in Court, though they deny the false implication of Riaz petitioner in the present case on account of this reason.
19. The learned counsel for the petitioner adds that in the year 1987, the petitioner had sublet his office room to Messrs Ever Green Agencies, who are also a customs clearing agent and whose managing partner is one Amer Niazi, on the understanding that they would vacate these premises whenever so desired by the petitioner. Submits that the said Amer Niazi failed to honour his commitment which led to active hostility between the two and that the petitioner had finally managed to oust the said Amer Niazi from the premises in question only ten days prior to the day of the alleged raid.
20. It is thus contended that the Customs Department officials have a clear motive against the petitioner and they have planted this 'Heroin' on him to teach him a lesson for becoming a witness against their colleagues and to pursuade him not to support the prosecution case against the Customs Department officials. Adds that all this has been done with the connivance of the aforesaid Amer Niazi who is a customs agent and who has, on the one hand managed to oblige the Customs officials and has on the other hand wreaked his vangeance against the petitioner for his eviction from the office.
21. On the merits of the case, it is argued on behalf of the petitioner that the entire occurrence concocted by the Customs officers is absolutely implausible and does not inspire confidence at all.
It is submitted that if Riaz petitioner was a dealer of 'heroin' who was allegedly transporting the same to foreign countries, then it is not believable that the sender/carrier of the said 'heroin' would send or carry the same in the manner as alleged; would he carrying such a large quantity of `heroin' in an open hag; would leave the same with a peon of the petitioner's office who had just been hired and who was obviously not even known to the person bringing the said bag, that the employees of the petitioner would accept that hag and would keep it openly in the office even after they had, allegedly come to know that the same carried 'heroin' and finally that the sender carrier of the 'heroin' in question would he so naive that he would even keep a 'Chit' addressed to Riaz petitioner in the hag in question making mention of some earlier delivery also.
22. It is next submitted that in any case Riaz petitioner had admittedly not gone to the office that day. He was not the one who had accepted the delivery. He was not the one who had kept the bag in question in his office and he was obviously not present even when the alleged recovery had been effected. In the circumstances, itis contended that the question whether the petitioner was or was not involved with the heroin is a question which requires further inquiry.
23. The learned Standing Counsel for the Federation submits that in pursuance of the varbal observations made by this Court, the Customs Intelligence officers had carried out an inquiry into the standard of living and the antecedents of Riaz petitioner and adds that the petitioner maintains a very high standard of living which is a pointer towards the petitioner being a dealer in heroin as alleged.
24. To substantiate this claim, the learned Standing Counsel submits that the petitioner lives in a house which has four rooms, is built over an area of six Marlas and is situate in Shah Kamal Colony off Wandat Road, that the petitioner has four school-going children who are studying in a Government School at Wandat Road; that he maintains an office paying Rs,500 as its monthly rent; that he has employed a clerk and a peon for his office whose monthly salaries are Rs,1,700; that he maintains two telephones at his office and one at his residence and the average monthly bill of these three telephones is around Rs,1,000; that his monthly electricity bill for the residence ranges between Rs,100 and Rs,200 and the one for the office ranges between Rs,300 and Rs,800 and finally that the house in which the petitioner lives is in his own name and was purchased by him in the year 1979.
25. The learned counsel for the petitioner states that the figures mentioned by the learned Standing Counsel are by themselves sufficient to negate the assertion that the petitioner is maintaining a very high standard of living and hardly require any further comment. About the house it is submitted that the same was admittedly purchased in the year 1979 when the petitioner was only a student and that it was purchased by his father though in the name of the petitioner.
26. The learned Standing Counsel next submits that a gentleman was caught at London airport in December, 1988 while trying to smuggle heroin into England. During investigation of that case, it transpired that while purchasing his ticket for London, the contact telephone number given by that person was the telephone number of the present petitioner.
27. He, however, admits that the petitioner was never found involved in that case and was not even joined in its investigation.
28. The learned Standing Counsel also adds that the petitioner's engagement in drug trafficking is also evident from his frequent visits abroad. On my inquiry, however, the learned Standing Counsel states that the petitioner has been abroad only twice. The learned counsel for the petitioner replies to say that having been abroad twice is hardly being a frequent visitor abroad, nevertheless these two visits abroad of the petitioner were in connection with his carpet export business.
29. The learned Standing Counsel for the Federation opposes the grant of bail also on the ground that the petitioner had absented himself from the Court of the learned Additional Sessions Judge and that he had thus disentitled himself from the grant of any discretionary relief.
30. The I.O. Present in Court, on my inquiry, states that according to his investigations, the petitioner does not, so far, stand connected with the heroin in question and that no evidence has come on record which could link the petitioner with the heroin in question. He adds that according to his investigations, the petitioner is innocent.
31. The Assistant Director of Customs Intelligence, present in Court, admits, though reluctantly, that the evidence collected by his department is still deficient, yet he opposes the grant of bail before arrest to the present petitioner.
32. The learned Standing Counsel for the Federation does not deny that the bag in question was never received by Riaz petitioner and it was Maqbool co-accused who had received the same from the alleged 'Pathan'. It is also not denied that the Customs Intelligence Officers never sought the personal remand of Maqbool co-accused who could have given some clue about the identification etc., of the alleged carrier of this hag and that the said Maqbool had been sent to judicial lock-up after his arrest and remained there till his release on bail alongwith his other co- accused only after nine days of his arrest. It is also not denied that neither the local police nor the Customs Intelligence Officers have sought cancellation of to Maqbool accused and two other accused persons.
33. To a question from the Court whether there were any material recoveries etc. Or any particular interrogation which were to be made from the petitioner and could be made only during personal remand, the answer from the I.O. And the learned Standing Counsel was in the negative.
34. In view of the fact that the I.O. Has declared Riaz petitioner to be innocent and also in view of the fact that there is still nothing on record which could connect the petitioner with the heroin in question and further that there is material available on record which could, at least prima facie, lead to an inference that the involvement of the petitioner in this case was in bad faith, I am inclined to agree with the learned counsel for the petitioner that a case for release of petitioner on bail before arrest is made out and that the mere heinousness of the allegations should not stand in the way of grant of this concession to the petitioner if he has otherwise qualified himself to the grant of the same on the facts and the circumstances of the case.
35. The only question which now remains to be considered is whether the petitioner should or should not be sent back to the Court of Session for seeking his bail afresh from the said Court.
36. In view of the lengthy arguments addressed before this Court and in view of the fact that no such objection was taken by the State/complainant, at the earlier stage of the case and the complainant's department had, in fact, sought adjournment to further look into the involvement of Riaz petitioner in, the case in question, I do not think it would be advisable to set this entire exercise at naught and to send the petitioner back to the Court of Session.
37. In view of what has been stated above, the interim hail already allowed to I the petitioner in confirmed. The State shall, however, he at liberty to seek C cancellation of to the present petitioner in case any further material/evidence becomes available to it. It is also clarified that nothing found or observed in this order shall be taken as the expression of any final opinion vis-a-vis the allegations levelled against the accused persons.
38. Before I part with this order, I may add that this petition could have been disposed of merely on the statement of the I.O. Above noticed, but it was because of the heinousness of the offence that I did not consider it appropriate to place any reliance on the findings of the LO. Till I had personally examined every aspect of the case and had felt satisfied that the case was one of further inquiry.
Pre-arrest hail allowed.