' By this common order I intend to dispose of two bail applications moved on behalf of Muhammad Ayub (B.A. No,14 of 1994), Akbar Ali and Muhammad Azad (B.A. No,15 of 1994), who are facing trial in a case which is the outcome of an F.I.R. Bearing S/Bill No, 58020/93 dated 14-12-1993 under section 2(s) of the Custom Act, 1969 (hereinafter referred to as "The Act") punishable under clause (8) of section 156(1) read with section 178 ibid, attracting their imprisonment for a term not exceeding 14 years. Two charge-sheets, one interim and another final, have been submitted in this case wherein one Ameer Ali Moosa of M/s. Chartered Fisheries has been shown absconder, one Bashir Ahmed was not sent for trial while the present applicants were shown in custody. It appears from the record that applications moved in the first round on their behalf were rejected on 8th day of January, 1994 by the Special Judge (Customs and Taxation), Karachi and, after this failure, Special Criminal Bail Application No, 2 of 1994 moved before this Court on behalf of two applicants namely, Akbar Ali and Muhammad Azad was also dismissed on 20-2-1994. However, it is mentioned in the said order that after the final challan is submitted and some evidence is recorded, the applicants may repeat the bail application if so advised.
2. Although the facts of this case were briefly stated in the previous bail application (Special Criminal Bail Application No,2/94) by this Court, yet it may be advantageous to reproduce the same in this order too. The F.I.R. In this case was registered on receiving intimation conveyed by Drug Liason Officer of H.M. Customs and Excise British Deputy High Commission, York Place, Runnymede Lane, Port Trust Estate, Clifton Karachi wherein it was stated that the Law Enforcing Agency has seized 1000 Kgs. Of Charas at the United Kingdom from a consignment of frozen shrimps on 13-12-1993 which had been exported by M/s. Chartered Fisheries 33, West Wharf Industrial Area, West Wharf Road, Karachi under a Shipping Bill No, 58020 dated 27-10-1993 filed by Clearing Agents M/s. Panama Shipping Agencies C.HA.L. No,540. The intimation conveyed also revealed that four persons had already been arrested by the United Kingdom Law Enforcing Agency and one of the arrested persons had transpired himself to be Ameer Ali Moosa of M/s. Chartered Fisheries, the exporter of the impugned consignment.
' From the contents of the F.I.R., it is crystal clear that certain members of the M/s. Chartered Fisheries or M/s. Panama Shipping Agencies (Clearing Agents) were involved, directly or indirectly in this case. Akbar Ali is the manager while Muhammad Azad and Bashir Ahmed are the supervisors of M/s. Chartered Fisheries. Accused Muhammad Ayub is the main person of M/s. Panama Shipping Agencies (Clearing Agents).
3. So far as charge-sheets i,e, interim as well as final, are considered, they disclose several allegations against different persons as a result of investigation. These allegations can be summarised as under:--
(i) Muhammad Ayub had dealt with the impugned consignment as or on behalf of the Clearing Agent.
(ii) Muhammad Ayub was the person who got the referred container from M/s. Sea Land.
(iii) Muhammad Ayub managed to despatch the container to the premises of M/s. Fresh Water Fisheries where the cold storage of exporters, M/s. Chartered Fisheries was located.
(iv) Muhammad Ayub had prepared an invoice with reduced title of consignee as F. Trax Limited instead of M/s. French Tax Ltd. The background of this act is stated to be to suppress the full particulars of the consignee. The details of M/s. French Tax Ltd. Are available in the confessional statements of an accused examined in London. This statement was brought on record when witness Pual James Sidney Tailor was examined by the trial Court at Karachi on 16-1-1995.
' Another factor which drew the attention of this Court was the "Promise" made by the Drug Liason Officers, British Deputy High Commission, Karachi as mentioned in the charge-sheet of this case.
4. It is necessary to point out that when the witnesses were examined by the prosecution, not a single question was asked by the learned Advocates for the applicants to shatter the scattered pieces of evidence brought on record by the prosecution. If these pieces are linked together, they make a semitransparent picture of the prosecution story. It appears that the learned Advocates have preferred the present applications by considering that, as evidence of several witnesses has been completed, therefore the order of this Court passed on 20-2-1994 in Special Bail Application No,2 of 1994 has been complied with. No doubt, according to the said order, applicants could repeat bail applications after some evidence is recorded but it does not mean the "formal evidence". For example, if any criminal case depends upon ocular evidence then words of the Appellate Court to repeat bail application after recording some evidence be meant the material evidence of the eye-witnesses of that case. Similarly, if prosecution case depends upon circumstantial evidence, then statements of those witnesses would be covered by such directions, which attract the circumstances of the case. The present case of the prosecution is totally based on circumstantial evidence and its pieces are scattered from Pakistan to U.K. The transparent picture of this case is expected to become more clear when these pieces are adhered together with some glue of evidence. Till date the prosecution has examined several witnesses on specific point and the defence has not liked to contradict or shatter those points in cross-examination. It is evident from the proceedings that the prosecution as well as the defence have not shown their cards of attack or defence to each other.
5. It is necessary to give certain details of second round of moving bail applications which started by submitting an application for bail on 23-4-1994 on behalf of accused Muhammad Azad by presenting three affidavits sworn by certain persons in his favour. It is not known whether these persons, who had sworn the affidavits, were outsiders or the witnesses of the prosecution in this case. If they were outsiders then such move by the learned Advocate was astonishing enough because presentation of affidavits of outsiders in favour of an accused cannot be a base for moving bail applications. Even if certain affidavits of eye-witnesses mentioned in the charge-sheet of a criminal case are submitted in support of any accused person, they cannot be a base of granting bail unless all the eye-witnesses, swear their affidavits and appear in person in the Court.
It is also notable that the trial Court had not examined any witness when the said application was moved. According to my point of view, moving such applications at such stage was against the letters and spirit of the order of the High Court passed on 20-2-1994. The learned Special Judge, however, rejected the bail application by pointing out that as per prosecution case, 50 cartons found in the container containing Charas were picked up by accused Muhammad Azad from the house of absconding accused Ameer Ali to the cold storage where 875 cartons of shrimps had been stored and the question whether he was allowed or not allowed to enter the premises of the hall of M/s. Chartered Fisheries was absolutely immaterial. It appears from the record, that no application was preferred before this Court against the said order of the trial Court.
6. Three more applications, one from each accused, were again moved on 31-7-1994, 7-8-1994 and 23-8-1994 but, it appears from the record that notices on these applications were issued to the Customs Prosecutor on 4-8-1994, 10-8-1994 and on 23-8-1994 respectively. These dates of notices clearly show that the applications were not put by the concerned clerk before the learned Special Judge on the day when the same were presented.
(Note.-Such conduct of the concerned clerk is not appreciable, therefore, the Special Judge of the trial Court is required to find out the reasons of such conduct with intimation to this Court).
' These three bail applications were disposed of by one common order on 24-8-1994. After their failure to get bail, all the three applicants preferred the present bail applications. Bail Application No,14 of 1994 was moved on behalf of applicant Muhammad Ayub by Mr. 1.A. Hashmi, Advocate for the first time before this Court while Bail Application No,15 of 1994 on behalf of the remaining two applicants was moved by Mr.Sohail Muzaffar, Advocate for the second time. Mr.Iqtidar Ali Hashmi advanced the main arguments while Mr.Sohail Muzaffar adopted the arguments of Mr.Hashmi. After hearing the arguments on 19-1-1995, I reserved the order and also called R&P from the trial Court. Several aspects, which had not been brought to the knowledge of the Court, came to light only on examination of the R&P. For example, witness namely, Siddiq Khalil, Sarfarazul Hassan and Paul James Sidney Tailor were examined on 23-10-1994, 31-10-1994 and 16- 1-1994 respectively and cross-examination of the last witness was done on 19-1-1995 but this fact was not disclosed by any of the learned Advocates on any date during the pendency of these applications or on 19-1-1995 when order on these applications was reserved by this Court. It also appears that the I.O. Of this case did not inform about this fact to Mr. Farooq H. Naek, the learned DA.-G. Because nothing was revealed on behalf of the State too about these witnesses on 19-1-1995 when these applications were finally heard.
7. It was stressed by Mr.Iqtidar Ali Hashmi that nothing had come on record during the evidence of several witnesses examined by the trial Court against the accused/applicants. I have gone through the record and what has transpired from the evidence can be summarised as under--
(i) Confessional statement of Amir Ali Moosa and the record produced by Paul James Sidney Tailor, a Custom Officer in U.K. Leaves no doubt that about 1000 Kgs. Charas was smuggled from Pakistan to U.K. In a container;
(ii) Applicant Ayub got the container as per statement of P.W. 1, P.W. 4 and P.W.
7.
(iii) Applicant Ayub was the person who got the container from P.W. 2 when he reached berth No,6 and same was sent to Fresh Water Fishery by the same person under the pretext of insufficient quantity of fish and then it was loaded/filled and sealed at that specific place.
(iv) Applicant Azad was present at the place where container was loaded and sealed.
(v) When it was brought to Berth No,15, applicant Ayub was there.
(vi) Invoice (Exh.10-A) in respect of cartons was typed by Muhammad Ayub, which was not his job to be done as a clearing agent.
(vii) Accused/applicant Akbar Ali is Manager while Muhammad Azad and Bashir Ahmed are Supervisors of M/s. Chartered Fisheries who are exporter of consignment and the clearing agent Ayub has to act as would be instructed by the .Manager of the main accused or his supervisors.
8. However, certain facts of this case which drew my attention, need to be clarified by the authorities through the learned Special Judge of the trial Court because the learned Advocates pointed towards Bashir Ahmed's case for considering the present applications. No doubt, Bashir Ahmed was not sent for trial but it cannot become a ground for the bail of other accused persons.
' Points which need clarification are as under:-
(i) It has been mentioned in the charge-sheet by I.O. (Kh. Zeeshan Hussain) that "accused Bashir Ahmed has been released under section 161(10) of the Customs Act, 1969 as there is no evidence against him for his involvement in the offence and a separate application under section 161(10) of the Customs Act, 1969 is also being submitted in the Court.
' If there was no evidence against accused Bashir Ahmed, then putting his name in column No,2 of the charge-sheet was not in accordance to law even if he had not been sent for trial. The name of this person could be put in the cited column only if there was insufficient evidence against him for the time being and there was expectation that, at any stage, some evidence may come to light against him.
(ii) Similarly the I.O. Zeeshan Hussain) could release such an accused provisionally under section 161(10) of the Act but the words mentioned in the charge-sheet clearly show that the accused was released once for all which act was not in accordance to law. Although all such officers are expected to exercise their powers according to the Code of Criminal Procedure, 1898 under section 161(9) of the Act, yet they cannot ignore the specific provisions contained in section 161 of the Act especially when they are similar in nature to several provisions of Criminal Procedure Code. For example, section 161(10) of the Act corresponds to section 169, Cr.P.C., and section 161(11) of the Act is similar to section 173(3), Cr.P.C. The intention of the Legislature which appears from subsections
(10) and (11) of section 161 of the Act, seems nothing except that all such investigating officers can release an accused under section 161(10) of the Act only provisionally by asking the accused to execute a bond for his appearance in the Court of Special Judge on a specific date, place and time. It is the discretion of such officers to ask the accused to produce sureties or not along with the bond. When such officer would submit a report before the Special Judge, the accused must be present before the Court. If the Special Judge agrees with the 1.0, he may pass an order after hearing the prosecutor to discharge the accused and if he is of the opinion that there are sufficient grounds for proceeding against such person, the report of the I.O. Would be turned down and the Special Judge would ask the prosecution to proceed with his trial with direction to the prosecution to produce evidence under section 161(11) of the Act.
' It is thus evident that the Special Judge is bound to pass judicial and speaking order under section 161(11) of the Act and such an order would not be possible unless the Special Judge goes through the record under subsections (12) and (13) read with subsection (14) of the section 161 of the Act.
' In the light of the aforesaid lines, when R & P of this case was examined by this Court, it was found mum for the reasons best known to the I.O. Of the case or the Special Judge of the trial Court. If this procedure has not been adopted by the I.O. At the time of releasing accused Bashir Ahmed under section 161 (10) of the Act, then it requires explanation which is needed to be conveyed to this Court too.
(iii) It has also been mentioned in the charge-sheet that negligence on the part of staff has been proved and disciplinary action under E & D Rules, 1973, had to be initiated against the said custom official. The Court would like to know what action has been taken till date and what steps were taken by the I.O. In this connection. If nothing was done by any of the responsible persons, then silence on the part of the I.O. Or the concerned official is not meaningless.
9. Under these circumstances, it is not possible for this Court to presume from the evidence on record that the case of applicants has slipped into the cradle of further inquiry. Even otherwise, a criminal case falls within the clutches of further inquiry when a Court is satisfied to the extent of belief that there are not reasonable grounds for believing that the accused has committed a non- bailable offence and there are sufficient grounds for further inquiry regarding the guilt of accused.
If no such grounds are found or observed by the Court at any stage of the trial, then bail cannot be granted to such an accused on the basis of semi-transparent pieces of evidence roaming in the prosecution case like clouds in the sky. Same is the position of this case at present where the prosecution and the defence are avoiding to show and play their cards on the table but want to throw their burden on the shoulders of the Courts. The Courts are not presumed to give any observation under such situation as the same may damage the case of the prosecution or the defence.
On account of these reasons, I found myself unable to grant bail to the applicants, although the same was lukewarmly opposed by the learned D.A.-G. On account of this reality that full information and assistance was not provided to him by the concerned officer at the time of hearing these applications. In these circumstances, the bail applications are dismissed.
10. (a) Before parting with this order, I would be failing in my duty if I do not bring on record my concern over the delay caused in concluding this case. If there had been no need of examining witnesses from London or bringing on record certain important points as mentioned at the end of para. 3 above or in charge-sheet, I would have granted bail to these applicants on the ground of delay. Keeping in view, all the factors as revealed by the R&P of the case, it would be appreciable if the prosecution concludes this case as early as possible. The progress report of this case be sent to this Court at the end of every month by the trial Court especially with reference to the conduct of the I.O. Of this case.
(b) The Special Court is also required to send copies of this order to the concerned officials of the Customs as well as to Drug Laison Officer of H.M. Customs & Excise British Deputy High Commission, York Place, Runnymede Lane, Port Trust Estate Clifton, Karachi.