Applicant Mushtaq Ahmed is being proceeded against alongwith Syed Akbar A.I (Examining Officer, Customs House, Karachi) and one Naseeruddin (Clearing and Forwarding Agent) in a case registered on 20-9-1990 under section 32 of the Customs Act, 1969 punishable under section 14 read with Clauses (77) and (82) of section 156(1) ibid as per F.I.R. No.24/90 lodged by Aftab Ahmed Khan, Appraising Officer, Customs House, Karachi.
2. Charges embodied in the F.I.R. Show that M/s. Life Line Corporation, Lahore filed two claims for Export Rebate against the export of surgical instruments, and during scrutiny of the documents of Rebate Claims it was detected that substandard goods had been exported by the exporter to M/s. Eden International, Sydney Australia but that importer (as alleged in the F.I.R.) could not be located.
Samples of exported scissors were sent back to Pakistan in a packet which was opened in presence of two witnesses. The authorities have claimed that samples were found to be of the lowest quality. The last six lines of F.I.R. Run as under:--- "The aforesaid consignment of scissors of substandard surgical instruments were exported by the exporter M/s. Life Line Corporation, Lahore with collaboration of Clearing Agent M/s. A.K. Traders, Karachi and Customs Staff. Efforts are being made to arrest the exporter of the consignment, Clearing Agents and Customs Staff involved in the subject case:"
3. Noticeable factual aspects of the case, which attracted the attention of the Court are as under:
(a) Shipping Bills of export are dated15-1-1990
(b) Time and place of occurrence18-7-1990 shown in the F.I.R. isat 11-00 a.m.
(c) Time and place of Report20-9-1990 shown in the F.I.R. isat 11-00 a.m.
Although the F.I.R. Is silent about the rebate claimed yet it was alleged in charge-sheet, submitted after about two years, that the present applicant had claimed rebate for Rs.3,79,752 which amount was saved from being paid due to the complainant.
But why the F.I.R. Was lodged after about two months and charge---sheet was submitted after about two years from the date of lodging the F.I.R.? Both the documents are silent on this point.
Therefore the reasons of such unappreciable delay must be known to the complainant or the I.O. Of the case who are responsible Customs Officers.
4. Charge-sheet of this case has also certain important features to reflect an unattractive beauty of investigation. These features can be summarised as under:---
(a) It was submitted in the Court on 17-9-1992 i.e. After about 25 months from the date of lodging the F.I.R. And the trial Court adjourned the matter for about 20 times for the said purpose.
(b) Present applicant has been shown absconder and the remaining two accused as "on bail" who are attending the Court for nothing because, no proceedings have taken place during the last five years.
(c) Only the following four witnesses have been shown as witnesses in the charge-sheet:
(i) Mr: Aftab Ahmed Khan------------.. Appraising Officer
(ii) Ghulam Hadi Baloch ------------------UDC, Customs House
(iii) Mr. Akber Khan Chandio ---------..UDC, Customs House
(iv) Mr. Ghulam Ahmed Siddiqui------...I.O. of the case. . After submission of the charge-sheet, the trial Court adjourned the matter by now and then without any progress. Record of the case called from the trial Court shows that the matter was adjourned for about 18 times from 30-3-1993 to 17-4-1995 but the Present accused was never declared absconder by the. Court except that it went on issuing N.P.Ws. Diary-sheets of the trial Court further reveal that present applicant was arrested on 7-5-1995 and the matter was adjourned for about 9 times till 7-6-1995 on which date bail application of the applicant was rejected and the matter was adjourned for 6-7-1995.
6. The applicant approached this Court on 14-6-1995 after his failure to get bail from the trial Court.
Arguments of the learned Advocate for applicant regarding factual realities as narrated in the above paras and the contents of the impugned order of the learned Special Judge left this Court with no other alternative but to deal with the same in detail to some extent with a hope that principles laid down by the superior Courts, while dealing with bail applications, would not be ignored in future.
Operative part of the impugned order runs as under: "the Special Prosecutor has given no objection to grant of the bail for the reason that offence with which the applicant is charged is punishable with imprisonment of three years and that no loss was caused to Government exchequer. But here it is also worthwhile to point out the applicant had kept himself away from the case proceedings for five years and that on record he was shown as absconder. The contention of the learned D.C. Is that he had absolutely no knowledge about it and that no actions under sections 87 and 88, Cr.P.C. Were also initiated against him. But the papers available with Special Prosecutor goes to show that Director State Bank had given him a notice as a result of which he appeared and filed an affidavit refuting the allegations made against him meaning thereby that he had the knowledge of proceedings being initiated against him. Under such circumstances it cannot be said that he had no knowledge about it. It is now well established that a fugitive from law and Courts loses some of normal rights granted by the procedural as also substantive law. It is also well established that he could not explain the reasons of his abscondence satisfactorily for pretty long time, which in fact disentitles him to the concession of bail notwithstanding the merits of the case. It would also not be out of place to mention that it was pointed out by the prosecutor that no sufficient evidence has come on record to connect him with this incident The reasons are obvious. The applicant kept himself away from the clutches of Police due to which perhaps it could not be possible for the prosecution agency to collect sufficient evidence if any against him. Thus applicant by his conduct thwarts investigation as such he cannot seek a reward for such conduct. PLD 1985 SC 402 relied upon." (Underlining is my own).
7. It is, therefore, evident that---
(i) firstly the Investigating Officer took about 25 months to complete investigations after lodging the F.I.R. On 20-9-1990 in respect of a claim for rebate on the basis of Shipping Bills of export dated 15-1-1990.
(ii) secondly, the learned trial Court did, not like to start proceedings under sections 87 and 88, Cr.P.C. To declare the applicant absconder from the date of submission of the charge-sheet till 17- 4-1995 which period covers a duration of more than 30 months;
(iii) thirdly, the trial Court dismissed the bail application without taking into consideration the stand of the prosecution or the record of the Court. Bail was declined to the applicant only on presumption that the applicant may be having the knowledge of the case as he had appeared and filed an affidavit before the Director State Bank to refute the allegation. Whether any action had been taken by the State Bank against the applicant? The impugned order was kept silent on this point;
(iv) admittedly, no person has been named as witness by the prosecution either in the charge- sheet or in any other document available with the prosecution which could be treated as part and parcel of the case. In such circumstances, only the learned Special Judge may be knowing why he relied upon an unauthentic and irrelevant document to dismiss the bail application. So far as the so-called affidavit is concerned, there is nothing in that affidavit on account of which it could be believed that the applicant had any knowledge of the present criminal case. In spite of my best efforts, at least, I could not gather any such impression from the photo copy of the affidavit. Hence the order of the learned Special Judge was based on visionary imaginations.
These are the reasons that poor citizens are not only losing their faith in our investigating agencies but also in the Courts of Justice. On account of these circumstances a notice was issued to the learned DA.-G. To satisfy the Court on several points raised by the defence Advocate and it was most appreciable that Mr. 1kram.Ahmed Ansari, the learned DA.-G. Was good enough to take pain of appearing himself before the Court in compliance of the said notice.
8. Mr. Ikram Ahmed Ansari, the learned DA.-G. Was asked to inform the Court on the strength of case file or the police file or on any other documents available with him whether any person from the State Bank was cited as witness to justify the order of the trial Court for rejecting bail on the basis of any proceeding before the authorities of the State Bank. The learned D.A.-G. Turned towards the record of the case which spoke to him loudly that there was none.
The learned DA: G. Was then asked to add to our knowledge whether the trial Court had ever taken any proceedings under sections 87 and 88, CI.P.C. To get the applicant declared absconder by issuing any proclamation before his arrest in the month of May, 1995. The learned DA.-G. Was good enough to consult the case file once again which whispered in his ears, "Let me be kept mum on this point". Silence of the learned DA: G. On this point was much more important than bringing anything on his lips.
The learned DA.-G. Was also asked to assist the Court whether declaring an accused to be absconder by police in final charge-sheet was sufficient to treat an accused "fugitive from law" by a Court without discharge in its own burden required under Chapter VI of Cr P C especially for rejecting bail application. The learned DA.-G. Contended that order of the trial Court can be treated a judicial order event if the Court has not discharged its burden for adopting the relevant procedure and to issue proclamation as required under sections 87 and 88, Cr.P.C.
With profound respect for such a nice D.A.G., I have no hesitation to say that contention of the learned D.A.-G. Has no force in it. This Court would be the last one to put a seal of legalization on every order of a trial Court to be treated as the judicial order if the order speaks itself that it was passed on the basis of such irrelevant evidence which was not the part and parcel of judicial proceedings of the Court. In the present case the learned Special Judge has relied upon a so- called affidavit submitted before the Director State Bank but admittedly those proceedings, if believed to have taken place before the Authorities of State Bank, are not the part of proceedings of the trial Court. In other words: "A thing which had no mention anywhere in the fable Only that very thing has anguished him too much."
9. The matter did not rest here. The learned prosecutor had submitted before the learned Special Judge that no sufficient evidence has come on record to connect the applicant with this incident but, on the basis of presumption radiated from the so-called affidavit submitted before the Director, State Bank of Pakistan, the applicant was not only treated "fugitive from law" but the learned Special Judge also tried to cover the question of lack of evidence by saying that "the applicant kept himself away from the clutches of police due to which " perhaps it could not be possible for the prosecution agency to collect sufficient evidence if any against him. Needless to say anything ablaut the real concept of words "perhaps" and "if any against him" (as underlined by me) particularly their use, abuse or misuse in the context of the present case by the learned Special Judge, it can be said with certainty that "the case of prosecution needed nothing more except documentary evidence which had already beg n collected by the prosecution. It included "Realization Certificates (P.R.Cs.) stated be issued by M/s. Allied Bank of Pakistan. Qila Gujar Singh Branch, Lahore and which were claimed by the prosecution to be forged. E-Forms mentioned in the Shipping Bills, P.R.Cs. Issued to M/s. Delta Commercial Suppliers/Exporters, Sialkot, use of National Tax Numba (N.T.N.) belonging to M/s. N.E. Enterprises of Sialkot etc. But surprisingly no witness was cited in the charge-sheet from any of the abovementioned concerned offices and the final charge-sheet submitted after two years' investigation only included four witnesses of the Customs House including the I.O. Namely Ghulam Ahmed Siddiqui himself who praised the complainant namely Aftab Ahmed Khan, perhaps with an expectation that he, himself would also be praised for his claimed meritorious working which needs no comments. The relevant lines in this regard from the charge-sheet are reproduced as under: "If the complainant had not acted meticulously and judiciously, exporter and his collaboraters would have succeeded in drawing duty back amounting to Rs.3,79,752."
Such kind of self-praise can never attract any recommendation particularly in such type of investigation which took two years to complete. The true sense of the above words can be expressed as under:--- (I would call you pilgrimager and you should call me preacher).
I have left the last three lines of the charge-sheet untouched for the trial Court to decide whether, as per prosecution case, section 32 of the Customs Act, 1969 punishable under clause (14) read with (77) and (82) of section 156(1) ibid and further read with section 178 of the Customs Act, would be attracted in this case or not, as charge-sheeted by the I.O. Of the case.
10. It has been observed in several cases that the use of term "fugitive from law" for rejecting bail application has become a routine and the guide-lines provided by the superior Courts in several judgments on the point of abscondence are usually misconstrued, or ignored by the Subordinate Courts. The point of abscondence was discussed by this Bench in a case reported as Muhammad Imranullah Khan v. The State (1995 PCr.LJ 167) and the relevant para. Of the said case runs as under: "an absconding accused may not be refused bail in certain circumstances. For example if an accused remains absent in any case from the very first day of an incident and after his arrest he establishes that he had no knowledge about the case or he had knowledge but it was beyond his control to appear before the Court as he was under arrest in any other case or was out of country or was under preventive detention or there were other reasons on the basis of which he could not be considered absconder, then such accused must not be refused bail due to the so-called abscondence. Similarly the principle of `refusing bail to the absconder' may not be applied strictly in the case of all those persons who are mentioned in the first proviso of section 497(1), Cr.P.C. If the case of an accused is such that there are not reasonable grounds to believe that the accused has committed the non-bailable offence and there are sufficient grounds for further enquiry into his guilt, then in such case the principle of abscondence should not be applied strictly to refuse bail to an accused because bail becomes a right of an accused under section 497(2), Cr.P.C. In such circumstances."
It is, therefore, necessary that before treating an accused to be an absconder or fugitive from law, especially for the purpose of rejecting bail application, the Court is required to take into consideration all the factors such as evidence on-the record or to be produced by the prosecution to support abscondence of an accused; proceeding taken by the Court under sections 87 and 88, Cr.P.C. Stand taken by an accused after his arrest; any evidence in rebuttal available with the prosecution regarding the stand of the accused at the time of dealing bail applications of such an accused etc. Etc.
11. It may or may not be liked by certain corners that I have never appreciated the conduct of those Courts who refer the cases of superior Courts in their orders or judgments without discussing the facts of the referred cases to show their similarity with the facts of the cases in hand to justify their orders. I have gone thoroughly through the case referred by the learned Special Judge reported in PLD 1985 SC 191. No one can have any doubt about the principles laid down by the superior Court and their binding force under Article 189 of the Constitution of Islamic Republic of Pakistan. So far as the reference of that case in the impugned order on the point of abscondence is concerned, there is no cavil and confusion in it and it can be said with certainty that the referred case reported as Awal Khan v. The State has no relevancy with the case of the present applicant as would be clear from the following few lines:---
(i) Eight persons were charged in the referred case, under section 302/ 307/148/149, P.P.C. In a loan dispute or over blood feud which took place on 9-3-1983
(ii) Indiscriminate firing injured the complainant and his mother.
(iii) Two out of eight accused persons, absconded and two were granted pre-arrest bail which was not confirmed later on.
(iv) Arms were recovered from them as "pieces of evidence".
These facts show that accused in that case had knowledge of the case against them.
By taking into consideration all the circumstance and period of abscondence which was not more than 3 months, bail was granted to two absconding accused while it was refused to others. So far as the case of present applicant is concerned, the facts of his case were not similar to the referred case at all. Similarly the law point regarding abscondence becomes totally transparent in two other judgments reported in the same Law Journal as Ibrahim v. Hayat Gul 1985 SCM R 382 and Muhammad Sadiq v. Sadiq PLD 1985 SC 182. It can be, therefore, presumed that the learned Special Judge might be fully aware of those cases too while referring the case reported in PLD 1985 SC 402.
It may not be feasible to discuss the details of those cases in this order with reference to their application on the case of present applicant but it may not be out of place to reproduce one para. From the case of Ibrahim (supra) which runs as under:--- "It may straightaway be remarked that long abscondence would not become irrelevant merely because the co-accused of the accused concerned have during his abscondence, been acquitted on consideration of the evidence led by the prosecution. The law earlier laid down in respect of persons who become fugitive from law does not leave anything in doubt in this behalf. However it is correct that in some rare case notwithstanding abscondence the accused must be released on bail for example when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497 Cr P C and/or the so --called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence:"
The words "become entitled to bail as a right under subsection (2) of section 497. Cr.P.C." used in the above judgment of the Supreme Court leave no ambiguity about the right of an accused that the terms `fugitive from law" is not a blind rod to kill each and every right of alleged absconders because the words "hall pending such inquiry be released on bail" used in subsection (2) of section 497, Cr.P.C. Leave no ambiguity for any one about the real concept of abscondence for granting bail even to the absconders. It is most important to point out all the three referred judgments decided by three different Full Benches of the Supreme Court have other importance too which particularly attracted my attention. Justice Muhammad Afzal Zullah (Ex-Chief Justice of the Supreme Court) was the senior member of all the three Benches and also author of two out of three cases on behalf of other Judges of the. Supreme Court. Hence there was no possibility of any conflicting view on the said point. Those three cases got further importance due to their reporting in the same Law Journal and in the same year i.e. In PLD 1985 SC 402, 1985 SCM R 382 and PLD 1985 SC 182 which made it easier for every subordinate Court to reach to correct, exact and most transparent view of the Supreme Court: I have no doubt in my mind that if the learned Special Judge, Muhammad Afzal Khan had taken into consideration the accumulative effect of all the three cases decided by the Supreme Court as quoted above, he would not have reached the same conclusion as drawn by him in 6 impugned order.
12. By keeping all the points in view as discussed above, the summary of the prosecution case against the applicant appears as under:
(i) Name of the applicant is not mentioned in the F.I.R.
(ii) His-co-accused were granted pre-arrest bail on the very first day on the ground that maximum punishment in this case was 3 years, soon after the F.I.R. Was submitted in the trial Court.
(iii) No proceedings were taken by the trial Court, in this five years' old pending case, for declaring the applicant as absconders in the form of proclamation even after the submission of charge- sheet.
(iv) Nothing was recovered from the applicant in this case and even no recovery was required ,from him as the charges were based on documentary evidence and same was already available with the prosecution.
(v) No notice was ever served upon the applicant regarding pendency of case in the Court.
(vi) No further evidence had to be collected from the applicant by the Investigation Officer after filing of the final charge-sheet.
(vii) Instead of keeping the case for five years, the only four witnesses as cited in the charge-sheet could be examined within one day as they belonged to Customs House, Karachi.
(viii) There was nothing in the so-called affidavit referred in the impugned order to show that the applicant had any knowledge about any case pending before any Court.
(ix) Even there is nothing to show whether any action was taken by the State Bank against the applicant. If not then the reference of State Bank and affidavit was meaningless in the order.
(x) Reported case referred in the order was not applicable to the case of present applicant.
(xi) The impugned order of the trial Court was based upon such facts which could neither be proved nor were the part of prosecution case or the proceedings of the Court.
(xii) The learned prosecutor in this case had also conceded before the trial Court by saying that he had `no objection to grant of bail for the reasons that offence was punishable with imprisonment of three years'. It was also pointed out by the prosecution that `no sufficient evidence had come on record to connect him with this incident. The impugned order of the trial Court does not rebut these realities as expressed by the prosecution'.
13. In the light of abovementioned factual aspects I have no doubt in my mind to hold that there are not reasonable grounds for believing that the applicant has committed a non-bailable offence but there are more than sufficient grounds for further inquiry into his guilt. Therefore, grant of bail to the applicant is not a concession but a right to be released on bail even in the light of alleged abscondence as reflected in the impugned order particularly in the presence of observations made in the case of Ibrahim (supra) as referred and reproduced in para. 11 above.
On the basis of these detailed reasons as listed above the applicant was allowed bail by a short order, dated 4-7-1995 on his furnishing surety in. The sum of Rs.1,00,000 and P.R. Bond in the like amount. It is notable that this order also included conceding of the learned DA: G. Who nodded his head as a sign of agreement with the views expressed by this Court.
14. Before parting with this order I consider it necessary to express my feelings that the impugned order of the learned Special Judge has left its everlasting memories engraved on my mind because the prosecution as well as the Court failed to proceed a single step further during the Jast five years in a case where punishment of the alleged offences if any, is stated to be only three ears.
How much more time would be consumed by the learned trial Court in disposing of this case, it must be known to the trial Court or the prosecution.