1. ' SAIDUZZAMAN SIDDIQUI, J.---The abovementioned two criminal petitions for leave to appeal are filed by one Sikandar A. Karim, Managing Director of Messrs Mehran Motor Car Company, Karachi, a company engaged in the automobile business, seeking leave to appeal against the order of a learned Judge in Chambers of High Court of Sindh dated 1-11-1994, refusing to admit the petitioner to bail in a case registered against him along with several others under section 156(1), (8) and (14) of the Customs Act, 1969 read with section 5(2) of the Prevention of Corruption Act, 1947 (F.I.R. No, 24 of 1994). For the sake of convenience, I will hereinafter refer Mehran Motor Car Company, Karachi; the Customs Act, 1969 and Prevention of Corruption Act, 1947 as 'MMCC', 'the Act' and 'the Act of 1947', respectively.
2. ' The abovementioned petitions came up for hearing before us on 7-12-1994, when after hearing the learned counsel for the petitioner, we directed issuance of notices to Deputy Attorney-General for Pakistan as well as Advocate-General, Sindh, for 11-12-1994. In response to this notice, Mr. M.
3. Nawaz Abbasi, A.S.C. Appeared for the Deputy Attorney-General (DA.G.) but no appearance was made on behalf of the Advocate-General, Sindh. We, accordingly, heard at length the learned counsel for the petitioner and Mr. M. Nawaz Abbasi for D.A.-G., converted the above petitions into appeals, allowed them and admitted the petitioner to bail in the sum of Rs, 10 million each in the two cases with one surety and P.R. In the like amount to the satisfaction of 'Nazi? High Court of Sindh, by a short order dated 11-12-1994. The following are detailed reasons for our short order.
4. ' The relevant facts for disposal of the above appeals are, that. Federal Investigation Agency (F.I.A.) while conducting enquiry No, 16 of 1993 came to know that MMCC in connivance with the officials of Karachi Port Trust (K.P.T.) deprived the Government exchequer to the tune of Rs,10,95,552 by evading payment of demurrage on three consignments of cars imported during the period between 14-5-1993 to 30-5-1993. The F.IA., accordingly, registered F.I.R. No, 7 of 1993 on 3-12-1993 against the appellant and others under section 409, P.P.C. Read with section 5(2) of the Act of 1947.
5. The appellant surrendered for his arrest and was accordingly, taken into custody by the F.IA. On 5- 1-1994. The bail application moved by the appellant in the above case was allowed by a learned Judge in Chambers of High Court of Sindh (Muhammad Aslam Arain, T ) by order dated 25-1-1994.
6. However, no sooner the appellant was released in the above case, he was re-arrested in F.I.R. No, 23 of 1994 registered against him alongwith several others on 21-9-1994 under section 409/420/468/471/34 P.P.C. Read with section 5(2) of the Act of 1947 and section 156(1), (14) and (77) of the Act. F.I.R. No, 23 of 1994 was the outcome of enquiry No, 812 of 1993 conducted by the F.IA. The allegations against the appellant in F.I.R. No, 23 of 1994 were that he over-invoiced the value of Daewoo Racer Taxi Cars, imported by him under Prime Minister's Public Transport Scheme with the help of foreign suppliers and later, on arrival of these vehicles in Pakistan he also managed to get the local sale price of these vehicles fixed at a price higher than its actual value through the connivance of concerned Government officials. It was further alleged that as a result of over invoicing of the value of imported cars, the appellant evaded taxes relating to Iqra Surcharge flood relief fund, import licences fee and income-tax. The bail application of appellant moved in the case (F.I.R. No, 23 of 1994) was also heard by Muhammad Aslam Arain, J. Who had heard and disposed of the earlier bail application (F.I.R. No, 7 of 1994) of the appellant. The learned Judge admitted the appellant to bail in this case (F.I.R. No, 23 of 1994) also by his order dated 6-3-1994. The learned Judge, however, while disposing of the latter bail application of appellant observed that in spite of his order admitting the appellant to bail in F.I.R. No, 7 of 1993 and receipt of release order by the jail authorities in time, the appellant was not released from the custody of jail before 4 p.m. And his release from jail was delayed until 9 p.m. When F.I.R. No, 23 of 1994 was registered against him and he was re-arrested on release in F.I.R. No, 23 of 1994. This act of the authorities was found by the learned Judge as mala fide. The appellant after grant of bail in the case (F.I.R. No, 23 of 1994) did not furnish surety and bail bond for his release and instead filed Constitution Petition No, 648 of 1994 with the prayer that the F.IA. Authorities may be directed to disclose if there was any other case pending against the appellant. This Constitution petition was disposed of by the Court on 11- 5-1994, on the statement of the learned DA.G. That at present there was only one more enquiry No, 11 of 1994 pending against the appellant. The appellant then filed a Criminal Miscellaneous Application No, 340 of 1994 under section 561-A, Cr.P.C. Before the High Court of Sindh with the prayers that the appellant upon furnishing surety in the case (F.I.R. No, 23 of 1994) be directed to be released from the Court premises; he may be granted bail in the case registered against him vide enquiry No, 11 of 1994 and the F.IA. May be directed not to arrest the appellant without intimating the Court in future cases. This application was also heard by Muhammad Aslam Arain, J., and was rejected by order dated 28-5-1994. The petitioner, thereafter, furnished surety in the case (F.I.R. No, 23 of 1994) on 16-6-1994, but immediately on his release in that case he was again arrested in F.I.R.
7. No, 24 of 1994 registered on 16-6-1994. As the appellant was charged in F.I.R. No, 24 of 1994 with offences both under the Act as well as the Act of 1947, he filed two separate applications for his release on bail, one before the Special Judge Customs and Taxations, Karachi, and the other before Special Judge (Central-I), Karachi. Both the applications were rejected. The appellant thereafter, presented two separate bail applications before the High Court of Sindh, which were beard by Shafi Muhammadi, J., who had in the meantime succeeded Aslam Arain, J., as the Special Appellate Court of Sindh. The learned Judge by a laboured judgment spread over almost 54 typed pages reached the conclusion that the appellant being accused of the offences which fell in the category of crimes against the Society and these offences being also covered by the prohibitory clause of section 497, Cr.P.C., he was not entitled to the concession of bail and accordingly, rejected both the applications for grant of bail. The case-law cited before the learned Judge in Chambers including judgments from this Court were distinguished and it was observed that judgments rendered by superior Courts on matters of bail were conflicting in nature which encouraged corruption at the lower tier of judiciary. Comments were also made on the two earlier orders passed by Muhammad Aslam Arain, J., on the bail applications of appellant. We will separately deal in this judgment with these and other observations made by the learned Judge in Chambers in the impugned judgment, as these comments and observations were neither called for nor necessary for decision of the bail applications by the learned Judge.
8. ' The learned counsel for the appellant contended that the allegations made against the appellant at best disclose a case under section 156(1) and (14) of the Act read with section 32 of the Act for which maximum punishment is three years while the appellant is in continuous custody since January 1994. Regarding allegation of smuggling against the appellant under section 156(1) and
(8) of the Act and application of section 5(2) of the Act of 1947 in the case, the learned counsel for the 'appellant contended that no offence under section 156(1) and (8) of the Act is made out against the appellant on the basis of the material so far collected by the prosecution. With regard to the alleged recovery of alleged smuggled articles shown by the F.IA. From the show room of appellant, the learned counsel for the appellant contended that firstly, these recoveries were made while the appellant was in custody in jail, and secondly, the items shown to have been recovered from the display centre of appellant were those which were lawfully imported by the appellant. The learned counsel for the appellant very vehemently argued that the appellant has been detained in custody mala fidely for reasons not connected with any offence alleged to have been committed by him. Mr. M. Nawaz Abbasi, the learned counsel appearing for DA.-G. Supported the judgment of the High Court and contended that after registration of the F.I.R. No, 24 of 1994, certain recoveries have been effected from the show room belonging to the appellant which fully established the smuggling done by the appellant and therefore, he is not entitled to bail in the cases as the offence under section 156(1) and (8) of the Act is punishable for a term which extends to 14 years. Mr. M.
9. Nawaz Abbasi also contended that at this stage the Court cannot take into consideration the invoices produced by the appellant to show that the items recovered by F.IA. From his show room, were validly imported. According to Mr. M. Nawaz Abbasi, these documents could be considered at the trial by the trial Court. We may mention here that these invoices were produced before the learned Judge in Chambers but he refused to look into them on the ground that this exercise is to be undertaken exclusively by the trial Court and not by the Court hearing bail application of the appellant. After hearing the learned counsel for the appellant and Mr. M. Nawaz Abbasi for DA.-G. At length we are of the view that the appellant is entitled to the grant of bail in the case registered against him vide F.I.R. No, 24 of 1994.
10. ' A tentative assessm ent of the allegations against the appellant in F.I.R. No, 24 of 1994 shows that the first offence alleged against him was that he imported automobile spare parts in part shipments under five different letters of credit, opened between the period from 5-12-1992 to 22-5- 1993 and with the intention to evade payment of full customs duty on these consignments, he allegedly misdeclared the value of these consignments 30% less than their actual value. It is also alleged in the F.I.R. That on arrival of these consignments at K.P.T., the bill of entry for clearance of these consignments was also filed by the appellant through his clearing agent declaring under invoiced value of these consignments and got them cleared by evading payment of full customs duty payable on the actual value of these imports. The total amount of customs duty and other taxes alleged to have been thus evaded by the appellant in this manner was stated to be Rs,1,13,88,573. The second offence alleged against the appellant was that he calendestinely smuggled a good number of auto parts in the trunks of 200 Daewoo Racer Taxis imported by him in the year 1992. No details or description of parts allegedly smuggled by the appellant in the tranks of 200 Daewoo Racer Taxis, are mentioned in the F.I.R. However, it is claimed that a few smuggled parts have been recovered subsequently, while the appellant was in jail, from the display centre belonging to the appellant on the pointation of one Rizwan Majeed, Senior Manager Parts and Services MMCC. The third and the last offence alleged against the appellant in the F.I.R. Relates to connivance between the appellant and the concerned Government officials getting the under- invoiced goods and the allegedly concealed auto parts in the trunks of 200 Daewoo Taxis cleared from the customs without payment of proper custom duty and other charges thereon.
11. ' Section 32 of the Act provides that if a person in connection with any matter of customs makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document or makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer, knowing or having reason to believe that such document or statement is false in any material particular, he shall be guilty of an offence under this section. The punishment for making false declaration under section 32 ibid is provided under section 156(1), (14) of the Act which reads as follows:- "14. If any person commits an offence under section 32.--Such person shall be liable to penalty not exceeding twenty-five thousand rupees or three times the value of the goods in respect of which such offence is committed; whichever be greater; and such goods shall also be liable to confiscation; and upon conviction by a Special Judge, he shall further be liable to imprisonment for a term not exceeding three years, or to fine, or to both."
12. It is quite clear from reading of the above provisions that upon conviction of an accused by a Special Judge for an offence under section 32 of the Act, the maximum punishment to be awarded is only three years or fine or both in addition to a penalty which may extend to rupees twenty-five thousand or three times the value of the goods in respect of which the offence is committed whichever is greater. It is, therefore, quite clear that offence under clause 14 of section 156 of the Act does not fall within the prohibitory clause of section 497, Cr.P.C. From reading of the F.I.R., it is quite clear that all the documents relating to under invoicing of the goods have been collected by the F.I.A. Which are in their possession. The appellant who is in custody since January 1994 was arrested in this case on 16-6-1994 and since then he is in custody. The learned Judge in Chambers while declining to admit the appellant to bail in respect of offence falling under section 156(1)(14) of the Act reasoned as follows:- "15. The next contention of the learned counsel was that an offence under section 156 (1) (14) read with its section 32 of the Custom Act is not exclusively punishable with 3 years, but, the punishment provided is "3 years or fine or both". The punishment is not "with fine". Therefore, the bar contained in section 497 (1), Cr.P.C. Is not attracted and "bail in such cases is a rule and refusal an exception". I have discussed this point in paras. 9 to 12 in detail and have also drawn a line of demarcation between the two categories of offence i,e. Offences affecting a society at large are to be put on one side of that line and the offences affecting the individuals are to be placed on the other side of line. Have explained the difference between the nature of offences. With reference to the sentence of an offence under section 123-B, P.P.C. (defiling of National Flag of Pakistan), it is evident that the said offence falls out of the clutches of bar contained in section 497(1), Cr.P.C. But grant of bail to such persons means to injure the feelings of whole nations besides encouraging such persons to repeat the same offence. Hence, this offence as well as such other offences, according to my point of view, fall within the cradle of "exceptions" and refusal of bail in such offences should be a rule and grant of bail be an exception. The same principle can be applied even in all the cases of those persons who are mentioned in the first proviso of section 497 (1), Cr.P.C.
13. ' If any woman or a person of tender-age is found involved in an offence which affects the individuals then the discretion, due to the words "may" used in first proviso of section 497(1), Cr.P.C., can be exercised in favour of the accused but if the offence of such person does shatter the peace of society, then discretion may not be exercised in his favour. For example, if a boy of tender age is found involved in transportation of heroin power as a carrier, he may not be given the concession of bail under the pretext that his case is covered by 1st proviso of section 497(1), Cr.P.C.
14. ' However, there are always exceptions within exceptions which can be explained with the help of following incidents belonging to the period of Caliph Umar:
(i) Certain slaves thieved and slaughtered a female camel After their arrest their case came before the Caliph for execution of punishment which, in accordance to the Islamic Law was amputation of right hand of every thief. The Caliph came to know that the slaves were very hungry and they committed the said crime for their survival. The Caliph put the whole responsibility upon the master of slaves namely 'Hatib' who had kept them so hungry that they committed a crime which was affecting the sole society and was punishable under the Hudood Ordinance. No sentence of Hadd was awarded to the thieves but Hatib was fined to pay an amount equal to twice the value of the camel. (Sunnan Baihqi). Hence it is clear that the sentence of Hadd cannot be imposed in presence of causes for committing that offence.
15. ' It has been reported in several books, that on account of famine, during the period of Caliph Umar, the sentences of amputation of hand was suspended till such time the effects of famine were prevailing over the society. It was reported in 'Abdul Razzaq' that one woman found herself close to death due to hunger. She begged a shepherd to give food but it was given to her when she committed intercourse with that man after receiving three bowls of "dates". Allegation against her was levelled that she committed Zina (adultery). However the defence view was that it can be presumed marriage on payment of dower in the shape of food given by the man to the lady. Thus there were two possibilities. One favouring the prosecution and the other favouring the accused.
16. Caliph Umar accepted the possibility which favoured the accused.
17. ' The purpose of giving these examples as exceptions within exemptions is nothing but to point out that if an accused commits any crime on account of unavoidable circumstances, then he can be letted from the charges levelled against him and if there are not such circumstances, then such person should not be spared.
18. ' The applicant in this case is a rich-man. Money was not problem for him. He had not committed any offence, as alleged against him, on account of unavoidable circumstances. What appears from the facts, as collected by the prosecution, is that it was only lust for collecting wealth at the cost of livelihood of poverty-stricken people under the false pretext of "Love to serve the unemployed by providing them taxis", on payment of some percentage of the total amount and spare parts at lower price."
19. ' We are unable to accept the above view taken by the learned Judge. The reasonings given by the learned Judge in declining bail to the appellant in the case under section 156(1) (14) of the Act besides being artificial are contrary to the settled principles laid down by this Court for grant of bail in such cases. The comparison by the learned Judge between offences under section 123-B P.P.C.
20. And offences relating to drug-trafficking on the one hand and the offence of under-invoicing alleged against the appellant on the other hand was totally misconceived. The offence under section 123-B, P.P.C. Is described in Schedule II of the Code of Criminal Procedure, as non-bailable and non-compoundable offence although the punishment prescribed is only 3 years of either description or fine or both. Similarly, the punishment prescribed for carrying and transportation of heroin is life imprisonment. Therefore, both these offences fall within prohibitory clause of section 497, Cr.P.C. Similarly mention of the incident of theft by some slaves and committing of Zina by a woman during reign of Hazrat Umar (RA.), while the country was in grip of famine, were totally irrelevant. In the same way, the observations of the learned Judge that the appellant was a rich man and therefore, the offence was committed by him not out of any compulsive circumstances but for his lust for collecting wealth at the cost of livelihood of poverty-stircken people under the pretext of "Love to serve the unemployed by providing them taxis" were totally uncalled for and extraneous to the issue before the learned Judge. We need not stress here, that while deciding a bail application r the Court should avoid making observations which may prejudice the accused in his defence at the trial of the case. The above observations could be easily avoided by the learned Judge as they were neither necessary nor germane to the decision of bail application of the appellant.
21. ' In the case of Wali Muhammad v. State (1969 SCMR 233), the petitioner who was tried under sections 167(81), 162 and 212 of the Act was accused of smuggling huge quantity of gold valued at rupees one crore. The offence under the relevant provisions was punishable with imprisonment of 6 years apart from the fine. The High Court refused to enlarge the accused on bail on the ground that there were strong and substantial reasons to believe that the accused in that case was prima facie connected with the commission of the offence and it was likely that he might tamper with the evidence on being released on bail. The petitioner who was admitted to interim bail by this Court was allowed to continue on bail and the following observations were made with regard to principle for grant of bail in such cases:-- "Leave to appeal was granted by this Court on the 2nd of October 1967, on the ground that the evidence against the petitioner was still to be evaluated and that as a general rule on a charge of the kind made in this case not involving a sentence of death or transportation for life, bail should ordinarily be allowed disregarding the grounds of the seriousness or anti-social nature of the offence unless there be strong grounds, in the shape of evidence for the belief that he is guilty. Ad interim bail was allowed to the petitioner leaving it open to the prosecution to move for its reconsideration presenting before the Court all the material in their possession including the confessional statements which had allegedly been made by some of the co-accused persons. The State did not apply for cancellation of the interim bail and no circumstance has been pointed out by the learned counsel for the respondent to justify the cancellation of the petitioner's bail at this stage. We will accept this appeal and direct that the petitioner shall continue to remain on bail already furnished by him under orders of this Court during the pendency of the case. It will, however, be open to the prosecution to move the High Court for the cancellation of the petitioner's bail on some fresh ground, if that step be considered justified."
22. ' In Criminal Petition No, 56-K (Tariq Bashir etc. v. State), decided on 31-8-1994, (PLD 1995 SC 34) a Bench of this Court while reiterating the principles for grant of bail in cases involving bailable and non-bailable offences, made the following observations:-- "It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C.
23. Divides non-bailable offences into two categories i,e., (i) offences punishable with death, imprisonment for life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example--
(a) where there is likelihood of absconding of the accused;
(b) where there is apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the offence being repeated if the accused is released on bail; and
(d) where the accused is a previous convict.
24. ' We know that many under-trial accused of bailable offences and preventive offences i,e., offences under sections 107, 109 and 110, Cr.P.C. Have been sent to/confined in jails for want of surety bonds although they, at the discretion of the Court, could be released on execution by them of bond (personal bond) without surety for their appearance before the Court. We also fmd that even in petty cases the Courts/subordinate Courts have remanded the accused to jail on their failure to produce sureties with the result that hundreds of under-trial accused who could have easily been released on personal bond are rotting in the jail for a long time. It is, therefore, directed that in bailable cases while remanding the accused to jail on his failure to furnish surety/bail bonds, the trial Court shall consider the propriety of his release on execution of personal bond. Not only the first order of judicial remand but also each subsequent order must show that the Court had really considered the propriety of his release on personal bond. Instead of being sword to under-trial accused carrying presumption of innocence with them, it is better that the Court should be lenient in the matter of bail, food and medical facilities. It is to be noted that under. Section 32 of the Prisons Act, an under-trial prisoner is entitled to have clothes and food privately. These facilities should liberally be provided to them till they are convicted. The jails in our country are over- crowded. The detention of under-trial prisoners, food and medical facilities and their transportation from jail to the Court heavily burdens public exchequer. It would be in consonance with the law of bail and in the fitness of things that accused in bailable offences, petty offences and offences punishable with imprisonment of less than ten years should not unnecessarily be detained in the jail."
25. ' We are unable to find any exceptional circumstance in the present case which disentitled the appellant to grant of bail in the case which carried the maximum sentence of three years or fine or both. We are accordingly, of the view that in view of the above discussed legal position the appellant is entitled, in the circumstances of the case, to grant of bail for the offence alleged against him under section 156(1) (14) of the Act.
26. ' Mr. M. Nawaz Abbasi, the learned counsel for the State, however, contended that bail should not be granted to the appellant as section 5(2) of the Act of 1947 was also applied in the case. At this stage, it will be suffice to observe that the appellant not being a public servant could not be convicted under section 5(2) of the Act of 1947. Apart from it, in the interim charge-sheet in the case filed before the Special Court, the prosecution had cited Anwar Khan son of Muhammad Khan, Muhammad Siddiq Hashim son of Muhammad Sharif, Ghulam Hussain son of Ahmed Hussain and Muhammad Zaman son of Habib Khan, officials of K.P.T. As the persons who allegedly connived with the appellant in getting the consignments/auto parts smuggled into Pakistan.
27. However, when their bail application came up for hearing before the Court of Special Judge (Central-I), Karachi, it was stated in writing before the Court by Faqir Muhammad Inspector, who investigated the case that he had received instructions from high-ups of F.I.A. H. Qrs. To state his no objection for the grant of bail to these accused persons. The abovementioned employees of K.P.T.
28. Were accordingly, admitted to bail by the Special Judge (Central-I), Karachi, by order dated 28-6- 1994. The learned Judge while holding that the appellant was not entitled to grant of bail as he was also charged for the offence under section 5(g) of the Act of 1947 in the case made the following observations:- "20. So far as the charges of corruption under section 5 (2) of Prevention of Corruption Act 1947 are concerned, there is no dispute over it that private person involved with the Government official can also be tried with them. From the whole serial of prosecution story starting from the first episode to the latest, there remains no doubt that over-invoicing was not possible without connivance of the office of Director-General Communication; non-payment of lading and demurrage charges was not possible without an active connivance of KPT officials and the under-invoicing, to evade duties and taxes and to destroy the smooth business of honest importers, was not possible without conspiracy of Custom officials. Hence, the main characters of whole serial of prosecution story have to be taken into custody from Karachi to Islamabad which is not an easy work to be completed within no time. Admittedly some of the officers were arrested as stated by the learned advocates of both the parties but they were released on bail because their names were not appearing in the F.I.Rs, However, if the Government fails to arrest all the concerned officials at the time of submitting final challan of the cases, then the applicant would have a right to be released on bail provided a fresh application is moved before the trial Court at that time. It was submitted by the learned advocate for the applicant that certain accused persons have been released on bail by the trial Court, therefore, the present applicant can also be released on the same grounds.
29. Can a judgment of a subordinate Court be binding upon the Judge of a High Court? I think that the learned counsel for the applicant is fully aware of this fact that when the judgment of learned Single Judge of a High Court is not authoritative but only persuasive in its nature for every other Judge of the High Court then an order passed by any trial Court can never be binding upon a higher Court. Moreover, the prosecution treats the applicant as a "principal accused" in spreading corruption among the officials. The case of Mr. Zulfiqar Ali Bhutto decided by a Full Bench of Lahore High Court comprising of Mushtaq Hussain, Zakiuddin Pal. M.S.H. Qureshi, Aftab Hussain and Gulbaz Khan JJ. Reported in PLD 1978 Lahore 523, in the murder of Nawab Muhammad Ahmed Khan, can never be out of the memory of the peoples of Pakistan. The murder had taken place in Lahore when Mr. Zulfiqar Ali Bhutto was in Multan, but the Lahore High Court wrote the words "the principal accused" with his name. In the case of the present applicant, the prosecution treats the applicant as "the principal accused" because he is the main beneficiary and therefore his case can be treated distinguishable from the case of other accused persons. So far as rule of consistency is concerned, it cannot be applicable as an omnibus principle irrespective of facts of each and every case. The name of the present applicant is mentioned in the FIR with specific allegations that he committed all the offences in connivance of Government officials. The specific role of those officials would come to light, when they all are arrested and explain the details, how the applicant corrupted them in different stages. Moreover, the corrupt officials may be tried under the charges of corruption only but the charge against the applicant are multiple i,e. Corruption coupled with misdeclaration and smuggling."
30. ' The above observations of the learned Judge are purely conjectural and imaginary. The learned Judge was dealing with the case arising from F.I.R. No, 24 of 1994 in which there were no allegations of over-invoicing or nonpayment of landing and demurrage charges against the appellant. We are sorry to say that the observations of learned Judge that over-invoicing and nonpayment of landing and demurrage was not possible without connivance of officials of K.P.T. And customs with the appellant were totally extraneous as these allegations against the appellant were the subject- matter of F.I.Rs, Nos. 7 of 1994 and 23 of 1994, in which appellant was already admitted to bail by another learned Judge of that Court (Muhammad Aslam Arain, J.) and these facts could not be taken into consideration for denying hail to appellant in the case before the learned Judge. If the learned Judge would have confined his considerations to the facts of the case before him, he would have felt no difficulty in reaching the conclusion that the appellant having been charged in the F.I.R. Only under section 5(2) of the Act of 1947 could not be convicted by the Special Judge, for the offence under section 5(2) ibid as he was not a public servant. Apart from it, the public servants accused in the case having been enlarged on bail by the Special Judge, the learned Judge should have enlarged the appellant also on bail following the rule of consistency in the case. We are, therefore, of the view that application of section 5(2) of the Act of 1947 by the prosecution did not come in the way of grant of bail to the appellant in the circumstances of the case.
31. ' The other allegation against the appellant in the case is that he smuggled auto parts in the trunks of 200 Daewoo Racer Taxis imported in 1992. Mr. M. Nawaz Abbasi, the learned counsel for the State contended that these allegations constituted offence under section 156(1)(8) of the Act for which punishment prescribed under the law is 14 years' R.I. It is, accordingly, contended by Mr. M. Nawaz Abbasi that these offences fall under the prohibitory clause of section 497, Cr.P.C. And as such bail cannot be granted to the appellant. The precise allegations in this regard in the F.I.R. Against the appellant are that he allegedly smuggled a good number of auto parts in the trunks of 200 Daewoo Racer Taxis imported during the year 1992. Neither the description nor the quantity of auto parts allegedly smuggled by the appellant are given in the F.I.R. The learned Judge while refusing bail for offence under section 156(1)(8) of the Act observed as follows:-- "19. After dealing with all these legal aspects of the case the learned counsel for the applicant assailed the prosecution case with reference to its factual aspects by saying that offence under section 156(1)(8) i,e. Smuggling, prima facie cannot be proved without actual recovery of the smuggled articles. Although this contention has force in it, yet, at the same time, the learned counsel stated the I.O. Of this case had seized several items from the office of the applicant on 9- 7-1994 during the pendency of these bail applications. It was contended that the F.I.R. Of these cases had been registered without any recovery, therefore recovery made on 9-7-1994 was doubtful. I have no doubt in my mind that F.I.R. Is limited to the "first information" about some cognizable offence. If F.I.R. Is lodged after full investigation of a case then such a F.I.R. Becomes doubtful. For example if a person informs a Police station that dead body is lying in the bushes and the duty officer lodges a report only to that extent of received information, then such report would be sufficient to be termed as "first information report" (FIR.). It is not necessary that F.I.R. Should be lodged after recovery of dead body with its full details. Similarly it is not necessary that F.I.R. Cannot be lodged unless smuggled articles are recovered. Whether such recovery can be taken into consideration or not under such circumstances? I think that scope of section 497, Cr.P.C. Is very wide in its nature. An application for bail can be moved at any stage of investigation, inquiry or trials as the case may be, therefore no stage is premature for moving bail application. On account of this reason, I always considered the orders of rejection of a bail application to be improper if the bail application was rejected on the ground that it was premature. Section 497 (2), Cr.P.C. Starts with the words "If it appears to such office or Court at any stage of the investigation, inquiry or trial," therefore, no stage can be treated as premature stage for the purpose of moving bail applications.
32. In presence of such wide scope of section 497, Cr.P.C. It cannot be claimed that, if recovery of alleged smuggled articles took place during the pendency of bail applications, then such recovery can be put out of consideration by the Court.
33. ' It was also contended by the learned counsel that all such alleged recovered items are available in the open market and in support of this contention, quotations from M/s. Hyundai Autos and Kashif Motors were brought before the Court for its perusal. Such contention had never been considered convincing in the field of criminology. For example, if a revolver or a pistol is recovered from an accused, who is booked under section 13-D, Arms Ordinance, then no doubt, such an accused can say and even prove that similar revolvers and pistols are available in the open market but such claim would be a useless defence unless he proves that the alleged recovered weapon was not recovered from him. Therefore, even if it may not be deniable that all such items, shown to have been seized by the are available in the open market, it would not make any difference unless it is proved by the accused that the items so seized, were not recovered from the office belonging to him.
34. ' It was surprising for me when another stand was taken by the learned counsel in respect of seized articles by admitting that articles were seized from the office of the appellant but they were in fact covered by the previous imports/L.Cs. The copies of all those L/Cs were also brought before the Court for their perusal. The High Court are not supposed to work as trial Court while considering the bail applications. Therefore all the documents/copies of L.Cs can be presented before the trial Court in defence, as and when time comes for the same. If I take into consideration all these documents produced by the learned counsel, then I am also bound to consider the documents produced by the learned Deputy Attorney-General. Any sort of comments on these documents might be sufficient to damage the case of the prosecution or the applicant, hence, I have avoided to comment upon the documents of both the parties, although I have gone through them to reach a conclusion for drawing a tentative assessment of the case. Any detailed discussion on these documents could touch the borders of "conclusive findings" which was not permitted according to the principles of justice at bail stage."
35. Before proceeding further, we may state here, that unlike an ordinary criminal case where burden of proof is always on the prosecution to prove its case against the accused person beyond reasonable doubt, section 156(2) of the Act provide that where goods specified in clause (s) of section 2 of the Act or in a notification issued thereunder, are seized under the Act in the reasonable belief that an act to defraud the Government of any duty payable thereon or to evade any prohibition or restriction for the time being enforced in respect of such good has been committed, the burden of proving that no such act has been committed is on the person from whose possession the goods are seized. It is, therefore, quite clear that a person accused of an offence under section 156(1)(8) of the Act has to discharge the initial burden of showing that the goods recovered from his possession were neither smuggled nor their possession was unlawful.
36. This burden has also to be discharged tentatively at the stage when the person accused of the offence under section 156(1)(8) of the Act applies to the Court for grant of bail. The appellant who was accused of the offence of smuggling auto parts in the case and was charged under section 156(1)(8) of the Act, was therefore, fully entitled to show to the Court while applying for grant of bail that the goods recovered from his office were not smuggled but lawfully imported. The learned Judge in Chambers, therefore, should not have felt surprised when the appellant offered to show that the auto parts seized by the F.I.A. From his show room were lawfully imported by them. The learned Judge should have tentatively examined the import documents produced by the appellant before him to prima fade determine whether the auto parts seized from the show room of the appellant could be those lawfully imported in the country in order to examine the plausibility of the plea of appellant. In view of the provision of section 156(2) of the Act, the learned Judge in Chambers could not decline to examine the plea of appellant at the stage of bail on the ground that these documents could be considered by the trial Court when the trial commenced. Mr. M.
37. Nawaz Abbasi, the learned A.S.C. Appearing for D.A.-G. Contended before us that as these documents were not considered by the learned Judge in Chambers the same cannot be considered now by this Court while considering the bail plea of the appellant. The contention of Mr. Abbasi does not appear to be correct. As pointed out by us earlier, the appellant was entitled to show before the learned Judge in Chambers that the goods seized from his office were not smuggled goods in accordance with the provision of section 156(2) of the Act. The learned Judge having declined to consider these documents, this Court can take them into consideration to determine the plausibility of the plea of appellant. In the present case, the allegation of the prosecution against the appellant is that he smuggled unspecified number of auto parts of unspecified description in the trunks of 200 Daewoo Racer Taxis imported by the appellant in the year 1992. The appellant is admittedly a car dealer engaged in the import of huge quantity of motor cars as well as automobile parts. The allegations in the F.I.R. Show that from 1992 up to this date the appellant has imported huge quantity of auto parts and these imports also covered the items allegedly recovered from his show room by the F.I.A. As smuggled items. We have tentatively examined the invoices which were produced by the appellant before the High Court to show that the auto parts seized from his show room were lawfully imported by them. These invoices relate to import of huge quantity of auto spare parts by the appellant. These invoices bear stamp of Muslim Commercial Bank and reference of the letters of credit established by the appellant's company for import of these parts. The imports of auto parts under these invoices include all those auto parts in substantial quantities which were seized from the show room of the appellant. The imports covered by these invoices were made during the year 1993 while the allegation of prosecution in the case against the appellant is that he smuggled auto parts of unspecified description in good numbers in 1992 in the trunks of 200 Daewoo Racer Cars. Therefore, the possibility that the parts seized from the show room of appellant were those which were covered by subsequent import in 1993 could not be ruled out at all at this stage. It was also contended before the learned Judge on behalf of the appellant that the items which were recovered from his show room and were alleged to be smuggled items are freely available in the open market but this contention was burshed aside by the learned Judge in Chamber by saying that such a contention can never be considered as convincing in the field of criminology. The learned Judge in Chambers while making above observations failed to take into consideration that he was dealing with a case arising under the Customs Act and the appellant was accused of the offence of smuggling goods which he claimed were freely available in the open market. If the items alleged to be smuggled by the prosecution were available freely in the open market and imports of such goods were not banned in the country, a presumption may arise that these goods were lawfully brought in the country unless contrary is shown. The learned Judge once again fell into error by making an inapt comparison between a revolver or a pistol recovered from the possession of a person accused of the offence under section 13-D of the Arms Ordinance with articles alleged to be smuggled which are freely sold in open market and their import in the country is not banned. In the former case, the availability of similar revolver or pistol will be of no consequence as for possessing a pistol or a revolver a licence is required under the Arms Ordinance, while in the latter case, if a person is found in possession of an article, import whereof is not banned and it is freely available in the market, a presumption about its lawful import in the country arises unless proved otherwise. The principle for grant of bail in a non-bailable offence was stated by this Court in the case of Ch. Abdul Malik v.
38. State (PLD 1968 SC 349) as follows:-- "The first is that bail should never be withheld as a punishment. In cases of non-bailable offences coming before the Courts, grant of bail is a relief resting primarily in the discretion of the Courts to be exercised with due care and caution as a fundamental incident of exercise of judicial power, taking into account the facts and circumstances of each case. Orders on bail application should not be considered as routine orders. Involving as they do the liberties of the citizens, they must be carefully balanced and weighed in the scales of justice and the requirement of relevant law, as contained in sections 497--498 of the Cr.P.C. There is however a further limitation on the Courts' discretion in regard to cases of offences which are punishable with death or transportation for life, which is that the accused shall not be released on bail in such cases if there are reasonable grounds for believing that he has committed such an offence. "Reasonable grounds" is an expression which connotes that the grounds be such as would appeal to a reasonable man for connecting the accused with the crime with which he is charged, "grounds" being a word of higher import than "suspicion". However, strong a suspicion may be it would not take the place of reasonable grounds. Grounds will have to be tested by reason for their acceptance or rejection.
39. The reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the Court, as it may possess or is expecting to possess as demonstrating evidence available in the case both direct and circumstantial. If such grounds exist tending to connect the accused with the crime, bail should be refused, without the need to go into a deeper appreciation of the merits of those grounds and the evidence on which they are rested, which functions are to be assumed at the trial stage. However, if it is found that the charge is groundless, i,e., to say unsupported by any evidence or instead of the grounds being reasonable, their absurdity stands exposed on a plain view, or the charge on its face value is reduced to a minor one which is not punishable with death or transportation for life, as for example where it is a case of accidental and unintended death caused by simple hurt, the limitation on the Courts' discretion is removed which must then be freely exercised in favour of the grant of bail. Similarly where reasonable grounds are not disclosed but the grounds do exist for a further investigation and inquiry into the guilt of an accused person, the case will fall under section 497(2) of the Cr.P.C., in which case again bail should not be withheld."
40. ' Similarly, in the case of Amir v. State (PLD 1972 SC 277), this Court observed that even for the purpose of bail the law is not to be stretched in favour of the prosecution and any benefit of doubt arising in the case must go to the accused.
41. ' In the light of preceding discussion, the benefit of doubt arising as to the nature of these articles which have been seized by F.I.A. As a result of search of premises of the appellant would naturally go to the accused who has prima facie shown that he is a regular importer of spare parts from Korea and that these spare parts were also, at one time or the other, imported by him by establishing letters of credit under the licences issued in his favour. We are, therefore, of the view that it cannot be said at this stage that the reasonable ground exists for believing that the appellant is guilty of an offence which falls under section 156(1) (8) of the Act. We, accordingly, admit the appellant to bail in respect of offence alleged under section 156(1) (8) of the Act. As a result of above discussion, the appellant is allowed bail in the sum of rupees 10 million in each case with one surety and P.R. In the like amount to the satisfaction of 'Nazi? High Court of Sindh.
42. ' Before parting with the case, we are sorry to record that the learned Judge in Chambers (Shaft Muhammadi, J.) while expressing his dissent with the views of his brother Judge (Aslam Arain, J.), and while commenting on the judgments of superior Courts generally on matters of bail did not keep in view the judicial propriety expected of a Judge of a superior Court. A Judge of the superior Court while taking oath of his office also undertakes to abide by the Code of Conduct prescribed by the Supreme Judicial Council. One of the provisions in the Code of Conduct prescribed by the Supreme Judicial Council, requires, every Judge while expressing dissent or disagreement with the opinion of another Judge, whether of equal or of inferior status, that the dissent and disagreement should invariably be expressed in terms of courtesy and restraint. This rule is to be adhered to more strictly when a Judge of the superior Court expresses his dissent with the view of another Judge of the same Court, as Judges of the superior Courts are equal. It must be remembered that a Judge of a superior Court while expressing his dissent or disagreement with the view of another Judge of that Court, does not overrule the view of the other Judge which is as valid and binding as the dissenting view, unless one of them is set aside or overruled by the appellate forum or by a larger Bench of that Court. It is, therefore, desirable that dissent and disagreement should never assume the form of comments of an appellate forum. Dissent and disagreement should also remain confined to the proposition of law and in no case it should extend to the conduct of the other Judge in a case or his findings on the merits of that case. We find that the learned Judge in Chambers while dissenting with the view of his brother, Muhammad Aslam Arain, J., expressed in the two earlier bail applications of the appellant, did not confine his dissent on proposition of laws but assumed the role of an appellate Court by offering his comments and analysis on the fmdings recorded by Muhammad Aslam Arain, J., on the merits of those cases. This was clearly not available to the learned Judge in Chambers within his right of dissent and disagreement with the view of his learned brother Muhammad Aslam Arain, J. Similarly, while commenting on the law laid down by the superior Courts including this Court on the power of Courts to grant bail under section 497, Cr.P.C., the learned Judge in Chambers expressed these views:-- "9. Before touching the arguments advanced by both the learned advocates of the parties, I consider it proper to discuss the real concept of section 497, Cr.P.C. Which has become so intermingled in the sea of different interpretations that no specific criteria can be considered as the only measuring rod to decide the matters of bail. Easily. For example bail has been usually granted to an accused person if his case fell within the ambit of first proviso of section 497 (1), Cr.P.C. As an exception. Thus in the cases of tender age (less than sixteen) bail was generally granted, even in the cases of capital punishment (PLD 1979 Lahore 477, 1984 P.Cr.LJ 189, 1990 P.Cr.LJ 191) but we are aware of this fact also that bail was refused by the Superior Court in so many cases even if the accused was of tender age (1984 P.Cr.LJ (AJ & K) 171 and PLD 1989 Karachi 112). Similar is the position in the cases of heinousness of crime (PLD 1988 AJ & K 33, and 1989 P.Cr.LJ 500/1067, non- prohibitory clauses (1977 SCMR 449 and 1988 P.Cr.LJ 1245), woman accused (1985 SCMR 1847 and 1981 P.Cr.LJ 386), ill-health (1981 P.Cr.LJ 274 and 1988 P.Cr.LJ 2275), cross cases or counter versions (1989 P.Cr.LJ 1004, 1985 P.Cr.LJ 3245 and 1983 P.Cr LJ 292).
43. However, all the conflicting views expressing different judgments of the Superior Court can be shielded with a single sentence that bail was granted or refused on the basis of circumstances of each case. But unfortunately, a argental conflicting views have become a cause of corruption in the subordinance Courts. Several Judicial Officers keep with them several sets of judgments of different nature. If they want to grant bail to an accused, even if he may be the most dangerous, they use one set of judgments containing references to grant bail and if they want to refuse, bail, even to an innocent person, they use another set of judgments containing references to refuse bail."
44. (The underlining is by us).
45. ' The above underlined observations by the learned Judge in Chambers besides being disparaging are without any justification and basis. It is highly unfortunate that the judgments of superior Courts which provide guidance to all Courts and Tribunals engaged in the process of administration of justice and keep in limit and control the exercise of discretion by them were found by the learned Judge as source of encouraging corruption in the lower tier of judiciary. These observations to say the least depict lack of judicial norms and understanding.
46. ' The learned Judge in Chambers while analysing the extent of binding effect of the judgments of this Court in view of Article 189 of the Constitution of Islamic Republic of Pakistan, made the following observations:-- "I am of the view that the self-concoted term of "Prohibitory Clauses" and "Non-Prohibitory Clauses" also create misunderstanding therefore, it would be better to use the words "out of prohibitory" instead of "non-prohibitory" and bail must be granted to an accused person in all kinds of non- bailable offences including those attracting the capital or minor punishment where no reasonable grounds exist for believing that the accused had committed an offence or further inquiry is warranted on sufficient grounds because subsection (2) of section 497, Cr.P.C. Makes it obligatory on the Court to allow bail in all such cases.
13. I am fully aware of the Constitutional binding force of Article 189 of the Constitution of Islamic Republic of Pakistan. Like section 212 of Government of India Act, 1935, according to which the Law declared by the Federal Court and Judgments of the Privy Council were binding on all the Courts in British India, Article 189 of the Constitution of Pakistan makes it obligatory that every decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law be binding on all other Courts in Pakistan.
47. ' However, there is no dispute over it that there is much difference between "a decision on any question of law or enunciation of principle of law" and the "generalization made by the Supreme Court on viewing the facts, circumstances and conduct of the persons involved in a particular case. Such 'generalizations' were never considered to be "pronouncement of law" or "principles of law" and they were therefore, sometimes followed and sometimes regretted by the superior Courts.
48. Apparently conflicting views, as quoted in para. 9 above, are the result of such generalizations. As the Courts are duty bound to follow the path paved by the Superior Judiciary, therefore, the High Courts are also required to slaute the notions appearing in the judgments of superior Courts by appreciating the scope and impact of those judgments as required under Article 189 of the Constitution, at the time of interpreting them by keeping the difference between "generalization" and "principles of law" because one cannot take the place of other."
49. ' The difference pointed by the learned Judge in Chambers between a "decision on any question of law or enunciation of principle of law" and "generalization made by this Court on viewing facts, circumstances and conduct of the person involved in a particular case" and then observing "that conflicting views are the result of such generalization" are more imaginary than real. The decision of this Court, in so far it decides a question of law or is based upon or enunciates a principle of law is binding on all Courts in Pakistan. The decisions on questions of laws or enunciation of principles of law are the generalization of such questions and principles. There can be no generalization of the facts and circumstances of any case. The facts and circumstances of each case are peculiar to that case and therefore, provide no guidance in the other cases. On the other hand, the generalised principles of law or generalised enunciation of principles of law govern all those which fall within such generalization. The above observations of the learned Judge are, therefore, not correct.
50. We have also noted that the learned Judge while discussing the merits of case in the impugned judgment made sweeping observations which could have been avoided as decisions on bail applications are tentative in nature and any positive expression of opinion is likely to affect the trial of the case one way or the other. Before ending we would also like to express that most of the discussion and references in the impugned judgment were besides the point and had no bearing with the issues raised before the Court. We are told that this simple bail application was argued on thirteen dates spread over 50 days. Much of the valuable time of the Court could be saved by the learned Judge by limiting the arguments of the parties within the confines of the case. The appeals stand disposed of with these observations.