1. ' Applicant Sikandar Abdul Karim is detained in Crime No,7/93, lodged by Inspector Faqir Muhammad of F.IA., I.&A.S. Seaport, Karachi, on 3-12-1993 under section 409, P.P.C. Read with section 5(2) of Act II of 1947. The applicant was arrested on 5-1-1994. Bail application moved on his behalf before the Special Judge (Central-I), Karachi is dismissed on 18-1-1994.
2. ' Applicant is said to be one of the Proprietors and Directors of M/s. Mchran Motors (Importers) having his business office at Karachi. The allegations against him in the F.I.R. Are as follows:-
(a) applicant had imported 700 Daewoo Racer Taxis which arrived by vessel s.s. Brilliant Ace 'at West Wharf' Karachi on 14-5-1993. The said taxis were imported under the Prime Minister's Public Transport Scheme and the landing and demurrage dates were fixed as 15-5-1993 and 18-5-1993 respectively. The applicant through his Clearing and Forwarding Agent M/s. R.H. Enterprises took the delivery of the vehicles from the KP.T. On 29-5-1993 and 30-5-1993 while the vehicles were already in demurrage with effect from 18-5-1993. On this account, the applicant is alleged to have got free slip for 4 days which resulted into loss to the Government Exchequer to the tune of Rs,4,79,304.
(b) Applicant also imported 800 Daewoo. Racer Taxis through a vessel `Australian Highways' which arrived at West Wharf, Karachi on 12-5-1993 and the landing and demurrage dates were fixed as.
3. 18-5-1993 and 24-5-1993. Applicant is alleged to have got delivery through his said clearing and forwarding agent on 26-5-1993 and evaded payment of demurrage charges to the tune of Rs,2,73,888, resulting into loss to the Government Exchequer.
(c) A further consignment of 1000 Daewoo Racer Taxis imported through vessel `Maerks Wave' were also imported and the landing and demurrage dates were fixed as 19-4-1993 and 25-4-1993. The allegation on this count is that the delivery was taken by the applicant through the said clearing and forwarding agent on 25-4-1993 and 26-4-1993 respectively and a loss to the Government Exchequer to the tune of Rs,3,42,360 was caused on account of non-payment of the demurrage charges and evasion thereof.
4. ' The total loss to the Government Exchequer on account of the clearance of 3 different consignments is shown as Rs,10,95,552. It is in the F.I.R. That the traffic manager and other officials of the K.P.T. Had connived at such acts of the applicant, who had issued free slips to applicant's clearing and forwarding agent in getting the vehicles cleared without charging the due amount of demurrage.
5. ' I have heard the learned counsel appearing for the applicant and Mr. Ashiq Raza appearing for the State. It is contended by Mr. Khalid M. Ishaque, learned Advocate appearing for the applicant, that a number of S.R.Os. Are issued by the Government, whereby extra days have been allowed beyond the period earlier fixed for the release of the goods imported without payment of additional demurrage charges and the case of the applicant is covered by such S.R .Os. Reference in this respect is made to S.R.O. 145(KE)/92 dated 28th June 1992, S.R.O. 148(KE)/93 dated 27th June, 1993, S.R.O. 141(KE)/93, dated 4th July 1893 and an extract from the meeting of the Board of Trustees of Karachi dated 31-3-1993. It is further argued that the applicant was within his rights to have the goods cleared from the K.P.T. And no offence whatsoever is committed by him. The main contention raised on behalf of the applicant is, that no offence under section 409 of P.P.C. Is made out against applicant to disentitle him to bail and at the most, it may be a case where the dues on account of demurrage charges are not paid, which could be received at any time if found due against him. For that, it is argued, that the applicant would be liable to make payment, if it is finally determined that the demurrage charges should have been paid and in that case applicant shall have a right of appeal and revision. In any case, no offence under section 409, P.P.C. Or section 5(2) of Act II of 1947 can be said to have been committed by him. Learned Advocate further argued that the case of the applicant is similar to the case of co-accused who have been granted bail and the rule of consistency requires that bail is granted to him. In support of this contention, learned Advocate has relied on Muhammad Fazal alias Bodi v. The State 1969 SCM R 9 and Muhammad Ramzan v. Zafrullah and another 1986 SCM R 1380. It is next argued that only because a huge amount is involved in the case, bail cannot be withheld in cases of this nature, as the basic principle is bail and not jail, and that the law is to be stretched in favour of accused and not in favour of prosecution, even at bail stage. In support of these contentions, the learned counsel has relied on Wall Muhammad v. The State 1969 SCM R 233 and Amir v. The State PLD 1972 SC 277. The last contention of the learned counsel is that if from the facts available on record it is spelt out that the case of an accused requires further enquiry, bail is to be granted as a matter of course even in cases covered by prohibitory clause of section 497, Cr.P.C.
6. ' Learned counsel appearing for the State has argued that it is the duty of every citizen :o pay taxes due against him and in this case applicant has caused a huge loss of Rs,10,95,552 to the Government Exchequer and he is not entitled to grant of bail. It is also argued that the applicant was not entitled to have his goods released and had, by manipulation with the K.P.T. Officials, got free slip for 4 days which under rules he was not entitled. It is also argued that the applicant, during interrogation had admitted before the Investigating Officer that he evaded payment of certain dues.
7. ' I have considered all the above contentions of the learned counsel and have gone through the entire record. There is nothing on record to indicate that any amount was either entrusted to applicant or that he had any dominion over such amount and has committed breach of trust in respect thereof. At the most, it is a case of evasion of payment of certain charges, which can always be calculated and the recovery could be made under the relevant provisions of law. No entrustment has been proved by the prosecution and the question of breach of trust by the applicant, in the circumstances, does not arise. The applicant is also not a public servant and the application of section 5(2) of Act II of 1947, is unwarranted.
8. ' I agree with the contentions of learned counsel for the applicant that his case is similar to the case of the co-accused, who have been granted bail. I am of the considered view that applicant's case requires further enquiry and I am inclined to grant him bail. He shall be so released if he furnishes one surety in the sum of Rs,2,00,000 (Rupees two lacs) with P.R. Bond in the like amount to the satisfaction of the learned trial Court. Any observations in this order which are tentative in nature are made for the decision of bail application and the learned trial Court shall not be influenced by such observations while deciding the case.