1. 'By this common order I intend to dispose of Bail Applications Nos.11 of 1994 and 583 of 1993 moved on behalf of applicant/accused Sikandar A. Karim son of Haji Abdul Karim (hereinafter referred to as "the applicant" or "the accused"), as they arise out of one F.I.R. No,24 of 1994 dated 16-6-1994 registered under section 156(1)(8)(14) of Custom Act, 1969 read with section 5(2) Act II P.CA., 1947.
2. These applications were filed before this Court on his behalf after his failure to get bail from the Courts of "Special Judge" (Custom and Taxation) at Karachi where he has to face trial along with his two absconding partners namely Nazeer Haji Usman and Riaz Haji Usman, all being the owners of Messrs Mehran Motor Cars Company (hereinafter referred to as the `MMCC'), for the offences punishable under section 156(1)(8)(14) of the Customs Act, 1969 and from the Court of Special Judge (Central I), Karachi where a case is pending against them as well as against several employees of KPT and Custom authorities under section 5(2) of the Prevention of Corruption Act, 1947.
3. 2.Till date, three episodes of the serial of "Prosecution story" have been displayed by the F.IA. But its extraordinary publicity has been done by the applicant's sympathisers after realising the effects of the remarks of "mala fide" which were passed by one of my brother Lords against the prosecution after setting out to view the performance shown by the representatives of the prosecution as is clear from the following factual position: "(i) On 21-2-1994, Mr. Habib-ur-Rashid, Advocate appeared in Bail Application No,150 of 1994 before the Court although he could not argue the matter on behalf of the Central Government because he was an advocate on the panel of Provincial Government. The matter was adjourned for the next day without bringing on record the above fact about his competence to appear before the Court.
(ii) On 22.2-1994, Mr. Sarwar Khan, the learned Assistant Advocate-General appeared before the Court in the same matter and pointed out that as the F.I.R. Was lodged by F.IA., therefore the bail application could be argued by a representative of Central Government or by the Deputy Attorney- General.
(iii) Thus it was surprising for me when the record of Bail Application No,52 of 1994 sounded that it was argued by Mr. Ashiq Rana, Advocate who was also an advocate on the panel of Provincial Government. Neither any objection was raised by the learned Advocate for the applicant nor by- the Court.
(iv) But on 7-9-1994, when Mr. K.M. Nadeem, learned Assistant Advocate-General, wanted to address the Court on certain points after completion of the arguments by Mr. Farooq H. Naek, the learned D.A.G., objection was raised by Mr. Shaukat H. Zubedi that as "Mr. K.M. Nadeem" was a "Provincial Law Officer" therefore, he could not address the Court in the matters which was purely concerned with the Federal Government. Mr. K.M. Nadeem contended that he was appearing on "Court Notice" issued by the Court on 4-7-1994 to assist the Court and he was attending the Court, almost, on all dates whenever the case was fixed for hearing. However, I repelled this contention on account of the facts mentioned in Criminal Petition No,47-K/1994 in the case of Darias B.
4. Kandawala who is a Parsi businessm an. In that case one advocate namely Mr. Farid Ahmed Dayo, belonging to the panel of Provincial Government, had appeared in the Court before my brother Lord Mr. Justice Muhammad Aslam Arain in an application under section 561-A, Cr.P.C. Moved on behalf of accused Darias B. Kandawala and submitted no objection without any authorisation from the Deputy Attorney-General or Standing Counsel or from the Central Government and the proceedings against the accused were quashed. Hence leave was granted by the Supreme Court on 18-8-1994 to consider the contentions raised by the State in the cited Criminal Petition. It is important to point out that special publicity was given by Mr. Ardeshir Cowasjee, a famous Parsi Journalist, in favour of Mr. Farid A. Dayo, Advocate, in one of his articles published in Daily Dawn, Karachi without giving the details and legal status of the advocate belonging to the panel of Provincial Government whether he could appear in the Court to give "No Objection" to quash the proceedings in the matters which were exclusively concerned with the Central Government. No doubt the `freedom of press' is the pillar of democracy and the Judges of the High Court are not afraid of the Journalists who feel happiness in criticising the judiciary but it would be appreciable that important facts must not be hidden by such journalists so that the institution of judiciary be saved from being defamed for nothing."
5. In the present bail applications, too, an impression was given to the press by certain hidden hands that the Court is avoiding to hear the bail applications of the applicant under one pretext or the other. This impression got reinforcement from the allegations given in the present application that:-- "Justice is being denied to the accused and the law is circumvented by the FIA in order to achieve their ultimate object of compelling the accused to agree to the terms of the F.I.A. On the instructions of the high-ups.
6. That the arrest is mala fide as it is quite apparent and is politically motivated in order to achieve ultimate objectives of compelling the applicant to compromise.
7. It is quite apparent that the F.IA. Is blowing hot and cold in the same breath for the sole purpose of making out a false case so as to compel the applicant to come to the terms of compromise."
8. Although it is an unfortunate of our history that undisputed politicians in opposition are usually booked in false cases by certain agencies, to show the rulers that they are more faithful to them than the rulers themselves yet painting the character-pictures of non-political persons with political colours can never be appreciated by the Court. The applicant does not seem to be a political person. He has not been booked in blind F.I.Rs, The case against him is based on documentary evidence. His two partners are absconding. Therefore I was not inclined to be impressed by such allegations. However, I gave full freedom to the learned advocates of the parties to argue the matter in detail and they took weeks to conclude their arguments. But the consequences of such freedom were apparent because I was fully burdened with the weights of heavy arguments advanced by Mr. Shoukat Hussain Zubedi and Mr. Farooq H. Naek, D.A.-G., who appeared on behalf of the applicant and the State respectively. This detailed judgment is the result of that freedom.
9. 3.Before touching different grounds given in the bail applications, would like to deal first with the ground embodied in the remarks of my brother Lord Mr. Justice Muhammad Aslam Arain passed while passing orders on Bail Application No,150/1994 because these remarks are one of the main grounds urged by the learned counsel and which run as under:-- "Learned D.A.-G. (means Mr. Ikram Ahmed Ansari) who submitted a brief note signed by I.O. Did not cite any case-law to rebut the contentions raised by applicant's learned counsel. I.O. Who was also present did not controvert allegation regarding applicant's release from Jail on 29-1-1994 at 9-00 p.m. And arrest thereafter in this case. In my view the investigation appears to have acted mala fide ...
10. This ground of "mala fide" was specifically stressed upon by the learned advocate on behalf of the applicant and was repeated several times along with other grounds in bail applications. Hence it has become indispensable to deal with this ground by keeping in view the points considered, viewed, discussed or decided in the disposed-of application.
11. The ground of mala fide is usually taken in applications for bail before arrest and not in the cases where the accused is in custody with charges of some substantive offence. This ground is also urged by the advocate on behalf of the detained political or non-political personalities in Constitution petitions or petitions under section 491, Cr.P.C. When such persons are arrested in blind F.I.Rs, and the police shows their arrest and release by now and then in those F.I.Rs, on account of certain politically motivated instructions. It was for the first time for me to see such remarks in the cases of arrested accused persons at bail stage, perhaps on account of my feeble knowledge of law as compared to the scholarly knowledge of studious intellectuals such as Mr. Khalid M. Ishaque, Advocate, who had argued the disposed-of applications, and the profound erudition of my learned brother Mr. Justice Muhammad Aslam Arain.
12. To thy humble opinion, the Court has to be very careful at the time of considering bail applications because it has never been desirable to make such observations at bail stage which may prejudice the case of the prosecution or the accused. Although microscopic study of the stories built-up and presented by the prosecution or by the defence is not barred yet the microscopic scrutiny by the Court to damage anyone's case has never been appreciated. Instead of discussing the facts, circumstances or merits of the case in detail at bail stage, the Courts are presumed to make only a tentative assessm ent to reach a conclusion whether reasonable grounds exist or not for believing that the accused has committed a non-bailable offence. It is only in the light of that assessment that the Courts have to exercise its proper and lawful discretion to grant or refuse bail to the accused. There is no dispute over this fact that the judgment authored by any Judge of a High Court is not authoritative for another Judge of the same High Court but its importance as A being "persuasive in its nature cannot be ignored. Hence, I feel myself to be under moral obligation to seek maximum strength from the orders passed on the applications disposed-of by my learned brother Lord. But it may be my unfortunate that I could not persuade myself to reach the same conclusion as drawn by him. According to my point of view the observations of "mala fide" made in those orders could not be given at bail stage because such remarks were sufficient to damage the case of the prosecution. The effects of such remarks could not be washed away by writing the following lines: "Any observations in this order which are tentative in nature and are made for the purpose of deciding this bail application shall not influence the trial Court while deciding the case."
13. If these words had any washable force, then the ground of "mala fide" would not have been taken in the present application.
14. To my humble view the allegation of mala fide are the "questions of facts" which can be proved or turned down after the evidence is recorded. Mere allegations, at the bail stage, on the basis of arrest, after release, in a fresh case is not sufficient to make such observations by the Court.
15. Otherwise every criminal, after his arrest, in different cases would treat the same to be based on "mala fide". If there is unrebuttal evidence before a Court about the innocence of an accused, then it would be in the interest of justice to quash the proceedings against the accused instead of granting him bail. Be that as it may, the remarks or observations referred above have burdened me to bring on record the details of tussle going on between the F.IA. And the applicant (in custody) along with his two absconding partners.
16. 4.As pointed out in para. 2 above, the serial of prosecution story consists of several episodes, the glimpses of which have been flashed in different F.I.Rs, registered against the applicant and his two absconding partners. As these episodes are closely linked, hence I consider it appropriate to brief their factual reflections highlighted or narrated by the learned counsel for the applicant as well as radiated by the record and before the Court or sent for by it at the initial stage when the present applications were tabled for hearing.
17. It appears that the Government, in order to meet the demon of unemployment in presence of scrambling economy of the country, prepared a Scheme in 1989, which is known as "Prime- Minister's Public Transport Scheme". According to this Scheme all kinds of vehicles such as motor- cycles, taxis, buses etc. Had to be supplied to the unemployed people so that they could earn their livelihood instead of seeking jobs in the Government Offices. Before this Scheme could be properly implemented, the Government of that time was sacked and new comers mounted upon the said scheme. The poor people, who knew driving, were offered to get taxis on payment of certain percentage of the total amount of such vehicles. These taxis had to be imported by the appointed dealers free from Custom Duty and several other taxes, which were leviable upon the import of private cars to be used other than the taxis. This Scheme, thus, attracted the poverty-stricken souls with a dream to earn their livelihood independently instead of licking the feet of blood-sucking bread or fastidious owners of private taxis from whom they used to hire the taxis to earn bread for their families.
18. In October, 1991, M/s. Daewoo Corporation of Korea, offered their Racer Cars to be plied as Taxis when an official delegation led by Commerce Minister visited Seoul in connection with the Second Trade Ministry Meeting. The F.O.B. Price of Car was offered by the Corporation as US $ 5,100 per unit however, on 2-11-1991, a Memorandum of Understanding (agreement) between M/s. Daewoo Corporation and Government of Pakistan was signed and the price of Daewoo Racer Car of 1500 CC with CIF price was agreed to be US $ 5,500 per unit. It was only after this Memorandum of Understanding (M.O.U.), that the Princes of Machiavellian wisdom played their role to satisfy the whims of their lust for wealth at the cost of destituteness or poverty stricken people as well as by causing substantial loss to the Government Exchequer.
19. Let us see, how the applicant was accused by the prosecution in different episodes of their story.
20. 5.The main portion of the first episode, 'appearing from F.I.R. No,23 of 1994', F.I.A. I&AS Seaport Karachi, brings the following synopsis to light: "(i) M/s. Daewoo Corporation agrees to supply standard specification of Daewoo Racer Taxi` at the rate of US $ 5,500 including ocean freight and insurance.
(ii) M/s. MMCC appears on the scene as the sole distributor but with enhanced price of the car instead of the agreed price of US $ 5,500 per unit. The arrangement of fixing enhanced price was done by way of another Memorandum of Understanding, now directly between the Daewoo Corporation and M/s. MMCC. The officials of D.G. Communication and Ministry of Industries connived with M/s. MMCC for re-fixing the price of cars for over-invoicing committed by M/s. MMCC with the help of false price schedule submitted by M/s. MMCC before PACO and Ministry of Industries wherein the C & F price was shown as US $ 6,895 with agency commission of US $ 350 per unit which was misdeclared before the Custom Authorities as US $ 200 per unit although it was charged @ of US $ 500 per unit.
(iii) 7,222 Units of Daewoo Racer Taxis were imported by M/s. MMCC @ US $ 6,800 per unit inclusive US $ 500 agency commission. On account of increasing demand of the taxis by the people, again, false price schedule was prepared to get maximum end-selling price fixed.
(iv) M/s. MMCC also pledged 1,150 units and 200 units of the Cars with M.C.B. And U.B.L. Respectively and in connivance with the corrupt officials of Custom, disposed of those Cars without obtaining N.O.C. From the banks.
21. It has been estimated that the agreed price of taxi was originally Rs,1,82,590 in Pak-Rupees but on account of the conspired mischievous deception of service, the poor taxi-drivers have to pay Rs,2,64,000 per taxi i,e, approximately Rs,80,000 per taxi more than the actual price to clear up their final dues. As 90% of the cost has to be made by the Government of Pakistan, so it gave a death blow to the foreign exchange on account of over-invoiced refixed enhanced price besides squeezing the blood of the hunger-stricken souls of underdeveloped and poverty facing society of Pakistan."
22. It is notable that the figures given in the above paras. Had neither been denied in any of the disposed-of bail applications nor rebutted in the present applications. However, bail in those cases, was granted on technical grounds by holding that the sections applied in the F.I.Rs, to indicate the offences alleged to have been committed by the applicant were not applicable to the facts of the case and the amount earned by the applicant and his partners illegally, as alleged, by misdeclaration could be recovered by the Government. Therefore bail could not be refused on the ground that huge sum was involved and heavy loss had been caused to the Government Exchequer on account of misdeclaration. It is further alleged that several officials are involved in this case.
23. From these allegations it is evident that the accused not only belong to the public but also to the private sectors who had common intention to defraud the poverty-stricken taxi-drivers by fixing enhanced price in place of actual price and caused loss to the Government Exchequer with substantial amount in clandestinely manners wilfully and deliberately by abusing their official position on the strength of false documents presented by the MMCC.
24. This is the end of first episode of the prosecution case.
25. 6.The second episode appearing from F.I.R. No,7/1993 F.IA. I&AS Seaport Karachi starts with the arrival of taxis on different dates according to the following summary: "(i) 700 Daewoo Racer Taxis arrived through Vessel SS Brilliant Ace at West Wharf Karachi on 14-5- 1993. The landing and demurrage dates were fixed as 18-5-1993 and 15-5-1993 respectively.
26. Delivery was taken on 29-5-1993 and 30-5-1993 without paying demurrage to cause loss to the Government Exchequer to the tune of Rs,4,79,304.
(ii) 800 Daewoo Racer Taxi arrived through Vessel Australian High Ways on 12-5-1993. The landing and demurrage dates were fixed on 18-5-1993 and 24-5-1993 respectively. Delivery was taken on 26-5-1993 without paying the actual demurrage charges amounting to the tune of Rs,2,73,888. In this case demurrage of only one day was paid.
(iii) 1,000 Daewoo Racer Taxis arrived through Vessel Marks on 16-4-1993. The landing and demurrage dates were fixed as 19-4-1993 and 25-4-1993 respectively. Delivery was taken without paying demurrage for 25-4-1993 and 26-4-1993 to the tune of Rs,3,42,360."
27. It was therefore, alleged that M/s: MMCC had succeeded to do so with the active connivance of Traffic Manager of KPT and several other officers.
28. The abovementioned two cases were dealt by my brother Lord Mr. Justice Muhammad Aslam Arain.
29. 7.F.I.R. No,24 of 1994 F.I.A. I&AS Seaport, Karachi is the subject-matter of the present bail applications which brings into light the prosecution story in its third episode. It consists of several scenes starting with the import of auto-parts. Contrary to the case of importing cars involving "over- invoicing", the import of auto-parts involves under-invoicing. The reason is obvious. The cars were imported free of custom duty while the auto-parts could not be imported without payment of custom duty and several other taxes. The prosecution story brings into light the allegations of (i) misdeclaration, (ii) smuggling and (iii) corruption in the cases of present applications by saying that:-- "(i) M/s. MMCC had established several L.Cs. On different dates through M.C.B., Finance and Trade Centre Branch, Karachi in favour of M/s. Daewoo Corporation Seoul Korea for the import of auto- parts and in manipulation with the Principal i,e, M/s. Daewoo Corporation, misdeclared the import value about 30% less than the actual value of the auto-parts in the import documents. It is claimed by the prosecution that this clandestine deal is confirmed from Daewoo Corporation's letter No, KHI/085-B, dated 5-8-1992 which speaks as under:-- Please find enclosed P/In from our Head Office for your reference. There are about 30% price differences between L/C Value and Actual Value as follows:-- L/C Value (Inv. No,) Actual Value (Inv. No,)
30. US $ 1989332 (HYA-YJ 20804.1) US $ 28097.34 (HYA-YJ 20804.3)
31. US $ 103976.38 (HYA-YJ 20804.2) US $ 147038.09 (HYA-YJ 20804.4)
32. US $ 123869.70 US $ 175135.43 Actual Value L/C Value Difference US $ 175135.43 US $ 123869.70 US $ 51265.73'."
33. The above 4 pro forma invoices showing the L.C. Value and actual value were recovered from M/s. Daewoo Corporation, Karachi Office. Against Pro forma Invoice No, HYA-YJ 20804.1 and HYA-YJ 20804.2 L.C. No,371-01- 44-107 dated 12-8-1992 was established by M/s. MMCC and had imported 4 shipments against this L.C. The difference amount between the L.C. Value and actual value which comes to US $ 51,265.73 was remitted by M/s. M.M.C. To M/s. Daewoo Corporation through T/T of Habib Bank, A.G. Zurich Deira, Dubai.
34. Besides, a telex dated 6-9-1993 further reveals the clandestine deal of M/s. M.M.C.C. With M/s. Daewoo Corporation in which the actual value and shipment value of the following shipments was shown as under:-- Shipping DateTotal amountSettled amountBalance to be paid April 2, 93 $ 94,292.90 $ 66,742.32 $ 27,550.58 May 29, 93 $ 3,12,129.34 $ 2,21,026.36 $ 91,104.98 June 12, 93 $ 4,43,940.73 $ 3,13,863.25 $ 1,30,077.48 July 16, 93 $ 21,943.72 $ 16,239.27 $ 6,704.45 July 16, 93 $ 99,832.57 $ 70,625.52 $ 29,207.05 July 23, 93 $ 43,819.65 $ 31,031.67 $ 12,787.96 July 31, 93 $ 41,481.32 $ 29,369.27 $ 12,112.05 Apart from the above, pro forma invoices Nos.HYA-YJ 211204.4 and HYA-YJ 211204.3 of December 4, 1992 and the fax message vide Ref. No, HYA-YJ 21205.1 dated 5-12-1992 showing the original value and under invoice value, have been recovered from M/s. Daewoo Corporation, Karachi office.
35. Against pro forma invoice No, HYA-YJ 211204.4, M/s. Mehran Motor Cars Company had established L.C. No,1371-01-45-45 which further substantiates the under invoicing in price of parts.
(ii) Regarding the charge of smuggling, it is alleged that M/s. MMCC committed the offence of smuggling in two different ways to smuggle the auto-parts. The first way of smuggling is alleged to have taken place as under:- "A request was made by M/s. MMCC vide their telex Ref. No,G-38/B dated 20-7-1992 to M/s. Daewoo Corporation by saying:- `Since shipment against L.C. 44/95 for 200 units Racer expected and July/Early August hence in order to be competitive in the market for spare parts, we (Means MMCC) request you (Daewoo Corporation) to please see that maximum possible parts as per our orders 786-3/92 and 786-4/92 are packed in trunks of 200 units.'
36. "Invoice or declaration in Bills of Landing are not required. Cost of total parts will be adjusted against advertising bills or will be arranged separately. Please confirm what parts quantity-wise are expected to be supplied with 200 units Racer Taxi shipment."
37. In response, on 30-7-1992, M/s. Daewoo Corporation, Karachi received fax message from Daewoo Corporation, Seoul, in Korean Language, original recovered from Daewoo Corporation, Karachi office wherein they informed the part's number, part's name and its quantity and specific body number of Daewoo Racer Taxi in the trunks of which the atuo-parts were put. It is claimed by the prosecution that all the above facts were confirmed from the correspondence done between M/s. MMCC and M/s. Daewoo Corporation. In support of this allegation, the prosecution avers that M/s. Daewoo Corporation vide their letter No, KHI/085-B dated 5-8-1992, which was seized in original from the office of M/s. MMCC and its copy from the office of M/s. Daewoo Corporation informed M/s. MMCC that the auto parts put into the trunks of Racer were shipped by M.V. Wolfsburg vide Bill of Lading dated 27th July, 1992. The bill of Entries filed by the importer through their Clearing and Forwarding Agent for 200 Daewoo Racer Taxi also corroborate the contents of the Fax Message dated 30-7-1992, referred to above. Besides, M/s. Daewoo Corporation, Karachi vide their letter dated 26-7-1994 have confirmed the contents of letter dated 5-8-1992 and further confirmed that abovementioned letter dated 5-8-1992 was written and signed by Mr. W. S. Park in his own handwriting and further added that Daewoo Corporation, Seoul, sent the letter to Mr. Park.
(b) The second way of smuggling adopted by M/s. MMCC, stated to be based on the record collected from Muslim Commercial Bank Finance and Trade Centre Branch, Karachi, L.C. Issuing Bank, and from Shipping Company M/s. James Finlay, revealed as under:--
(i) That auto part shipment against L.C. No, 1371-01-45-163 dated 22-5-1993 vide Commercial Invoice No, HYMYS 30430 A02 dated 12-7-1993 was of U.S. $ 70,625.52 consisting 102 items (17023 pieces) of Daewoo Racer spare parts.
(ii) That auto part shipment against L.C. No, 1371-01-45-157 dated 12-5-1993 vide Commercial Invoice No, HYNYS consisting 25 items (1980 pieces) of Daewoo Racer spare parts.
(iii) That auto part shipment against L.C. No, 1371-01:45-157 dated 12-5-1993 vide Commercial Invoice HYMYS 30400 A02 dated 12-7-1993 was of U.S. $ 16,239.27 consisting 24 items (3667 pieces) of Daewoo Racer spare parts.
38. It is alleged that M/s. MMCC through their Clearing and Forwarding Agent M/s. R.H. Enterprises concealed the quantity and description of the auto-parts before the Customs Authorities and filed bill of entries enclosing the fake Commercial Invoices by showing the C & F price of the shipments mentioned above U.S. $ 26,951.52 $ 7,861.75 and $ 5,109.37 respectively.
39. The claim of the prosecution is that M/s. MMCC imported and cleared all the shipments of auto- parts by about 30% under invoicing the actual value as confirmed from the letter dated 5-8-1992 and telex dated 6-9-1993. In the said telex the actual value of the above 03 shipments is shown as U.S. $ 99,832.57, $ 43,819.65 and $ 22,943.72 respectively.
40. Actual ValueDeclared ValueDifference $ 99,932.57$ 26,951.52 $ 72,881.05 $ 43,819.65 $ 7,861.75 $ 35,957.90 $22,943.72 $ 5,109.27 $ 17,834.45 $ 1,26,673.40 Equivalent to Rs,38,03,900.80 It is worth mentioning here that "Auto Parts" are notified items vide S.R.O. No,49(1)/85 dated 23-5- 1985 thus falls under subsection (s) of section 2 of Customs Act 1969. Hence the act of concealing the quantity/description of the auto parts in above 93 shipments by M/s. MMCC by submitting fake Commercial Invoices, instead of the original Commercial Invoices released from the L.C. Issuing Bank i,e, M.C.B. Finance & Trade Centre Branch, Karachi, and taking out the auto parts valuing Rs,38,03,900.80 without payment of Customs Duties and other leviable taxes thereon amounts to smuggling.
(iii) It was claimed by the prosecution that during the course of investigation, on the pointation of Mr. Rizwan Majeed, Senior Manager Parts, and Service of M/s. MMCC certain auto parts have been recovered from Daewoo Display Centre under the supervision of First Class Magistrate. The numbers of auto parts tallied with the list mentioned above. Besides the above recovery more smuggled auto parts are expected to be recovered after thorough checking of the record of import and disposal thereof.
41. M/s. MMCC by smuggling of auto parts and misdeclaring the import value caused loss of Rs,1,40,93,339 to the Government Exchequer on account of Custom Duty, Sales Tax, Iqra Surcharge and other leviable Taxes.
(iv) As such performance was not possible without criminal connivance of the Government officials, hence, several persons were arrested from the Government offices and the applicant, along with his two absconding partners, was also made an accused with the Government officials to face trial under section 5(2) of Prevention of Corruption Act, 1947.
42. 8.In reply to the allegations levelled by the prosecution, the learned counsel for the applicant submitted that:---
(i) The offence of misdeclaration punishable under section 156(1)(14) of the Customs Act is not exclusively punishable with 3 years but the punishment is "3 years or fine or both". Thus the punishment is not with fine", therefore the bar contained in section 497(1), Cr.P.C. Is not attracted.
(ii) The offence of smuggling punishable under section 156 (1) (8) of Customs Act cannot be proved without actual recovery of the smuggled articles. Although certain items were seized from the office of the applicant, alleged to be the smuggled goods, on 9-7-1993, yet the recovery was done after registration of the FIR during the pendency of the present applications. Hence the same is doubtful because--
(a) there is no evidence with the prosecution to prove that these articles were smuggled,
(b) moreover such items are available in the open market.
43. It is, however, submitted that the seized items were in fact covered by the previous imports/L.C. The copies of the L/C were also produced for the perusal of this Court.
44. In support of the above contentions certain law points were raised by the learned counsel which can be summarised as under:---
(a) Bail should ordinarily be granted disregarding the grounds of the seriousness or anti-social nature of the offence unless there are strong grounds in the shape of evidence that he is oft.
45. Reliance was placed on the case of Haji Wali Muhammad v. The State reported in 1969 SCMR 233.
(b) For the purpose of bail, law is not to be stretched in favour of the prosecution. If any benefit of doubt arises, it must go to accused. Reliance was placed on the case of Amir v. The State reported in PLD 1972 SC 277.
(c) If the case is based on documentary evidence which is likely to take time for its collection, then bail be normally allowed. The case of Ashraf Butt v. The State reported in 1985 PCr.LJ 1467 was referred in support of this connection.
(d) When the sentence of an offence is not covered by prohibitory clause, then bail is to be granted as a matter of course, because bail in such a case is a rule while the refusal an exception. Several cases were referred by the learned counsel in support of this contention including the case of Rafiq v. The State, reported in 1989 PCr.LJ 143 as well as the case of Haji Wali Muhammad v. The State quoted in para (a) above.
(e) Similarly much stress was laid on the dictum that "bail is never to be withheld as a punishment"
46. (PLD 1968 SC 349).
47. 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 PCr.LJ 189, 1990 PCr.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 PCr.LJ AJ&K 171 and PLD 1989 Karachi 112). Similar is the position in the cases of heinousness of crime (PLD 1988 Azad J&K 33 and 1989 PCr.LJ 500/1067), non- prohibitory clauses (1977 SCMR 449 and 1988 PCr.LJ 1245), woman acused (1985 SCMR 1847 and 1981 PCr.LJ 386), ill-health (1981 PCr.LJ 274 and 1988 PCr.LJ 2275), cross-cases or counter-versions (1989 PCr.LJ 1004, 1985 PCr.LJ 3245 and 1983 PCr.LJ 292).
48. However, all the conflicting views expressed in different judgments of the superior Court can be shielded with a single sentence that bail was granted or refused on the bases of circumstances of each case. But, unfortunately, all these cases with apparently conflicting views have become a cause of corruption in the subordinate Courts. Several Judicial Officers keep with the 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.
49. On account of this reason, I have never appreciated the conduct of such Judges, who pass orders on bail application without mentioning the background and circumstances of the case but only reproduce such "particular sentence" from the judgments of superior Court which are found to be useful for their purpose. Such conduct is, undoubtedly, a symbol of corruption and on account of this conduct, the burden on the superior Court is continuously increasing.
50. Keeping in view the situation as discussed above, I asked Mr. Shoukat Hussain Zubedi, the learned counsel for the applicant whether he could give the examples of those exceptions on the basis of which bail could be granted to the accused persons which do not fall within the ambit of prohibitory clause, but, his reply was limited to the existence of reasonable grounds to believe whether an accused has committed a non-bailable offence or not. But the term "reasonable grounds" has been conditioned with "sufficient grounds" in section 497(2), Cr.P.C. "Reasonable grounds" for granting or refusing bail to an accused cannot be ascertained without deeper study of the merits and circumstances of each case but deeper study does not permit deeper appreciation of the merits or evidence because it may damage the case of the prosecution or the defence.
51. Similarly dependance upon the one-sided prosecution story can never be appreciable because such conduct is against the real spirit of "reasonableness."
52. 10.Thus use of such mentally sophisticated interpretation do not free a common human-being from the clutches of complicated puzzled perplexities. It was not difficult to search out a proper and simple path to be followed as paved by the Legislature according to its wisdom. By analysing Schedule II of Criminal Procedure Code, every judicial officer of a Court can visualize conspicuous emblems to travel on that path after demarcating a line between different offences. For example: "(i) An offence punishable under section 188, P.P.C. Is punishable with simple imprisonment of one month to six months or fine of Rs,5,000 to Rs,1,000 or both, but it is not bailable but;
(ii) an offence under section 420, P.P.C. i,e, cheating is bailable although the punishment of the said offence is 7 years and fine and;
(iii) if section 420, P.P.C. Is compared with section 406, P.P.C., we find that, although sentence of section 406, P.P.C. Was enhanced from 3 years to 7 years yet, it was neither bailable when the sentence attached with it was 3 years nor now when sentence is 7 years. Moreover this sentence goes on increasing when the shape of offence goes on changing from section 406, P.P.C. To 409, P.P.C."
53. Thus the deep analysis of Schedule II of Cr.P.C. Enlightens that offences were made "bailable" or "not bailable" according to their nature and effects on the individuals or on the Society at large and not according to the quanturti of sentence. Whatever may be the nature of non-bailable offence, the grant or refusal of bail is conditioned with the existence of reasonable grounds regarding the commission of such offence, or sufficient grounds of further inquiry into the guilt or innocence of the accused. In spite of this fact bail in non-bailable offence is only a concession contrary to the bail in "bailable" offence which is the right and not favour to the accused no matter the same are compoundable or not. This difference can be easily ascertained from the sections mentioned above as well as from the following examples:--- "(a) Offence under section 123-B, P.P.C. Relates to defiling the National Flag of Pakistan. The punishment for such an offence is three years or fine or both but this offence is "not bailable" because it injures the feelings of whole nation. Thus Courts are not expected to grant bail to an accused of such offence as a rule on the ground that it falls out of the ambit of "Prohibitory Clause".
(b) Offences under section 153-A & B, P.P.C. Are not bailable although the sentence of these offences is five years with fine or both because the offence of promoting enmity between different groups affects the whole society. Hence refusal of bail in such offences be a rule and grant of bail be an exception.
(c) Similarly the offences under sections 133, 233. 239, 241, 242, 248, 250, 356, 378, P.P.C. Are punishable with such sentences which are not covered by the "prohibitions" mentioned in section 497(1), Cr.P.C. As those offences affect the society and the nation as a whole, therefore, the Courts may not exercise their powers in favour of the accused persons under an impression that bail in such offences is a rule."
54. 11.The entire Scheme of penology in Islam corroborates the above concept.
55. In Islam, offences are divided into three categories, namely (i) Hudood, (ii) Qisas and (iii) Tazeerat: The offences falling in the category of `fludood' affect the whole society. For example "Sexual Intercourse" is a common factor between a validly married pair and the adulterers. But this act is not an offence if the same is done by validly married man and woman in spite of its being an open secret for the families, relatives and friends of the husband and his wife but the same act is termed as "Zina" when it is done by those who are not validly married an in such case the sentence of this act is the most painful. The reason is obvious. The offence of Zina affects the whole society with the following consequences:- "(i) The children born as a result of adultery are named as "Harrami" or "illegitimate" from the date of their birth till death.
(ii) Both the adulterers become the symbol of disgust in the society.
(iii) The parents and ' other family members of the adulterers feel themselves sunk in the sea of shame.
(iv) In tribal areas, it becomes a permanent foundation of enmity between the families of both the adulterers if they belong to different tribes.
(v) If the adulterers belong to the same tribs, then the tribe declares punishment of death for both the adulterers in certain areas in Balochistan and Sindh.
(vi) In the present age, this act has become of cause of the most dangerous disease known as 'Aids'."
56. This is the reason that this offence is neither bailable nor compoundable. Even if the families of both the offenders agree to compromise, the State has no right to spare any of the accused on the basis of compromise but has to execute the sentence as a right of Allah.
57. Another best example, in this connection, is the offence under section 17(4) of "Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and offence punishable under section 302, Qisas and Diyat Ordinance, 1991. Imposition of death sentence is a common "factor" between these two offences but the parties are allowed to compromise in the cases of murder falling under section 302, Qisas and Diyat Ordinance, 1991 as the same is compoundable but no such permission can be granted in the case of murder under section 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
58. It is notable that almost all the offences from sections 302 to 338-C of Qasis and Diyat Ordinance are compoundable (except sections 325, 327 and 328 on account of their nature affecting the society) while remaining offences affect the individuals or individual families. On the other hand, the offences introduced under different Hudood Ordinances are not compoundable because these offences affect the society or community of a nation as illustrated above with the example of Zina.
59. 12.With the help of this line of demarcation, offences can be divided into two categories i,e, offences affecting the individuals and offences affecting the whole society or community of a nation. If a person is accused of an offence which affects any individual and falls out of the ambit of prohibitory clause, the Court may exercise its discretion in favour of the accused by granting him bail as the bail in such a case be a rule while its refusal an exception, but, in case of an offence, which affects any society, then the Courts may not exercise their discretion to grant bail to such an accused as the refusal in such a case be a rule while bail an exception but subject to the condition mentioned in section 497(1) or 497(2), Cr.P.C.
60. It is notable that the terms of "prohibitory" and "not prohibitory" are not found in any Statute books.
61. The self-sprouted concept of prohibitory and non-prohibitory germinated after introduction of Code of Criminal Procedure (Amendment) Act, 1923 (XVIII of 1923) when the words "an offence punishable with death or transportation for life" were substituted for the words "the offence of which he is accused" along with addition of Ist proviso in section 497(1), Cr.P.C. The intention of Legislature can be known from the following para. Of the "Select Committee Report" on the basis of which Act XVIII of 1923 was legislated:-- "It was pressed upon us that the provisions as to bail in non-bailable cases are too stringent. One suggestion made to us was that in section 497 we should delete all the words after 'may be released on bail' in subsection (1) and the whole of subsection (2). The result would have been to give all Courts full discretion in the matter of allowing bail in non-bailable cases and we felt generally that this was going too far. What we have done is to allow the Court or Police Officer to release on bail in a non-bailable case unless there appears to be reasonable ground for believing that the accused has been guilty of an offence punishable with death or transportation and as some safeguard against this we have provided for a review by the Sessions Court or the High Court of any order admitting to bail, in a non-bailable case. Some of us, including all the members of the Joint Committee, are of the opinion that decision goes too far and that in the end it will not tend towards the administration of justice."
62. The concept of "prohibitory clause" and "non-prohibitory clause" was further strengthened when "Criminal Procedure (Amendment) Act, 1974 (25 of 1974) was introduced and the words "or imprisonment for life or imprisonment for ten years" were inserted in section 497(1) after the word "death" besides the second proviso but without bringing any change in section 497(2) where the words "such offence" had been replaced by inserting the words "a non-bailable offence" by Act XVIII of 1923. If the replacement of words "such offence" had not taken place by the words "a non- bailable offence" then it could be presumed that bail be granted in all cases except those barred in section 497(1), Cr.P.C. Hence, it is obvious that insertion of word "a non-bailable offence" by the Legislature was not meaningless and therefore the term "non-prohibitory" has not to be interpreted with an impression that bail has to be granted in all non-bailable offences as a rule which fall out of the clutches of "prohibitions" mentioned in section 497(1), Cr.P.C. Because such an interpretation would make section 497(2), Cr.P.C. Practically redundant which can never be the intention or the wisdom of Legislature. The superior Courts, therefore, made it clear in several cases that "in cases not falling within prohibitory clause of section 497, the accused persons cannot claim bail as a matter of right and each case had to be decided on its merit".
63. I am of the view that the self-concocted terms of "Prohibitory Clause" 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.
64. 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 decided by the Federal Court and judgment 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.
65. 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.
66. Apparently conflicting view, as quoted in para.9 above, are the result of such generalization. As the Courts are duty bound to follow the path paved by the Superior Judiciary, therefore, the High Courts are also required to salute 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 "generalizations" and "principles of law" because one cannot take the place of other.
67. As the learned counsel for the applicant had forcefully defended the applicant/accused with the help of fully armed cavalry of judgments pronounced by the Supreme Court to face the argumental assaults of the learned Deputy Attorney-General, therefore, I decided to reach the depths of these judgments in detail.
68. 14.Mr. Shoukat Hussain Zubedi, assailed the arguments of D.A.-G. With reference to legal as well as factual aspects of the case. So far as the legal aspects are concerned, the learned counsel basically relied upon the judgment of Haji Wali Muhammad v. The State (1969 SCMR 233) and has contended that bail cannot be withheld under the pretext that a huge amount is involved in the present case because bail was granted by the Supreme Court to accused Haji Wali Muhammad, although there was allegation against him that he was involved in smuggling into Pakistan of a large quantity of gold valued about one Crore of rupees. The said judgment was specifically relied upon by his Lordship Mr. Justice Muhammad Aslam Arain in his order passed on application of the applicant already disposed of.
69. After going through that judgment, it can be said with certainty that the cited judgment is not at all applicable to the cases of the present applicant on account of several reasons: "(i) The consideration before the Supreme Court, as appears from the cited judgment, was that, as a general rule on a charge, not involving a sentence of death or transportation for life, bail should ordinarily be allowed disregarding the grounds of the seriousness of anti-social nature of the offence unless there be strong grounds in the shape of evidence for the belief that he is guilty."
70. It is notable that in the year 1969, when the above-cited judgment was given by the Supreme Court, the prohibitions to the grant of bail was limited to the sentence of death or transportation of life and the punishment of an offence under section 167(8) of the Sea Customs Act, 1878 (as it was at that time) was only six years. The Sea Customs Act, 1878 was repealed on 3rd March 1969 and was replaced by enacting the Customs Act, 1969. The previous section 167(8) of the Sea Customs Act, 1878 (repealed) corresponds to section 156(1)(8) of the Customs Act, 1969 but the Sentence of this offence was enhanced from "six years" to "ten years" by the Finance Act, 1973, and then from "ten years" to "fourteen years" by the Finance Act 1988. Hence, it is obvious that offence under section 156(1)(8) of the Customs Act, 1969 does not fall out of the prohibitions mentioned in section 497(1), Cr.P.C. This offence was out of the clutches of prohibitions only prior to 1969 before the enactment of the Customs Act, 1969: "(i) Similarly the cited case of Haji Wali Muhammad is distinguishable from the case of the present applicant with reference to its certain glaring aspects i,e,:
(a) There was no question of misdeclaration in the cited case while the case of the present applicant is of misdeclaration coupled with smuggling.
(b) There was no question of National loss of exchequer in the case of Haji Wali Muhammad, but, on account of 90% payment in foreign exchange by the Government and in connivance of the Government officials by fixing the manipulated enhanced price of taxis by over-invoicing and showing 30% less price of auto-parts than the actual value by under-invoicing, gave a death blow to the Government exchequer. It may be said that reference of "taxis" cannot be a subject-matter of the present applications, but as the questions of "mala fide" observed by my brother Lord was stressed upon in The present applications, hence it was not possible to keep that reference untouched especially when the episodes of the whole serial of the prosecution case are so closely linked that one cannot be separated from the other.
(c) With reference to the social importance of the case, it is important to point out that "gold smuggled by Haji Wali Muhammad, was an item of the rich people to pride and to arrange exhibitions of their luxuries, which shows are limited or reserved within those negligible number of families of specific class who are always interested in decorating themselves with the glittering beauty of gold to please and satisfy their psyche of fashions, richness as well as to hide their artificial beauty or to compete their beauty, if any, due to jealously with the real beauty of others. As the number of such families is very limited, therefore, the smuggling of gold does not affect the society at large. But the case of the present applicant is totally on different footing. The items of taxis and their spare parts were concerned with the livelihood of poverty-stricken people who were burdened to pay the enhanced price of taxis to fill more than already filled bags of the wealth owned by the applicant.
(d) The case of Haji Wali Muhammad had nothing to do with any "commission" in US dollars to be fixed as US $ 350 or shown as U$ 200 or received @ US $ 500 per taxi or the payment of 90% amount from the Government exchequer, or showing 30% less value of the auto-parts as is the case of present applicant."
71. If the social importance of the case, as discussed above, is not taken into consideration by treating the same as the result of specific mental approach of a Judge and not to be termed as judicial dictum, even then, the remaining distinguishable aspects, especially the enhancement of sentence from 6 years to 14 years as enacted by Finance Act, 1988 cannot be ignored easily.
72. Before parting with the portion of the order, I must concede that the grounds for relying upon the judgment of Haji Wali Muhammad case by my brother Lord Mr. Justice Muhammad. Aslam Arain may be stronger but I could not persuade myself to reach the same conclusion to grant bail to the applicant on account of distinguishable features as discussed above and because of the actual value and the shown value of articles due to which the National exchequer suffered a huge loss in two ways which were conflicting to each other. If the price of taxis had increased due to some reason, then naturally the price of auto-parts should not have been reduced. If we ignore the calculated amount of taxis as calculated by the prosecution and depend upon the difference of US $ 1300 arising out of (Enhanced value US $ 6800 and actual value: US $ 5500) which is approximately equal to Rs,40,000 in Pakistani Rupees, then this admitted difference becomes Rs,4 Crore for one thousand Cars. At this rate total difference can be calculated by knowing the exact figure of imported Cars to find the loss of foreign exchange on account of 90% payment by the Government. Secondly by showing less price of auto-parts by 30% loss was caused by evading actual duties and other taxes.
73. 15.The next contention of the learned counsel was that an offence under section 156(1)(14) read with its section 32 of the Customs 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. I 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 nation 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.
74. 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.
75. 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-powder 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.
76. 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.
(ii) 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 (adultory). 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.
77. Caliph Umar accepted the possibility. Which favoured the accused."
78. The purpose of giving these examples as exceptions within exceptions is nothing but to point out that if an accused commits any crime on account of unavoidable circumstances, then he can be let from the charges levelled against him and if there are no such circumstances, then such person should not be spared.
79. 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.
80. 16.The learned counsel for the applicant, then referred the case of Amir v. The State PLD 1972 SC 277 wherein it had been viewed by their Lordships of the Supreme Court that "even for the purpose of bail law should not be stretched in favour of the prosecution. If any benefit of doubt arises it must go to the accused". Whether these words are put in the cradle of generalizations or they are treated to be "principle of law", the background of the cited case does not apply to the case of the present applicant on account of the following reasons: (i)The above, the cited judgment was related to "two cross-cases" with counter-version. The petitioner, who had applied for bail, had taken the plea of self-defence attracting section 96, PeP.C.
81. According to which 'nothing is an offence which is done in exercise of right of private defence'. The committing Magistrate had recorded the statements of certain witnesses (according to the procedure as was then existing prior to Law Reforms Ordinance, 1972 but was replaced by section 190(3), Cr.P.C. In 1972) and the learned Single Judge of the High Court had taken into consideration only the statement of witnesses namely Manzoor who was a complainant in one case and an accused in the other case. The Supreme Court, although, dismissing the bail applications but directed the petitioner that he should renew his bail application before the learned Single Judge after giving the observations that "Law should not be stretched in favour of the prosecution". In the cited case, the plea of self-defence was based on the evidence recorded by the committing Magistrate while the defence of the present applicant is that he is being politically victimised so that he could be compelled to bow before the wishes of high-ups, but such defence is without any evidence except the remarks of "mala tide" of my brother Lord which could not persuade me. The truth or falsehood of the defence can only be ascertained after the evidence of certain concerned persons is recorded. At present, such plea, without any evidence, can be considered only a premature defence.
(ii) The offence of murder mentioned in the cited judgment was under section 302, Qisas and Diyat Ordinance. I have expressed my view in para 11 above that such an offence only affects the individual families due to which it has been made compoundable after the promulgation of Qisas and Diyat Ordinance in 1991, while the charges levelled against the applicant are related to offences which affect the society at large as well as the whole nation. The allegations of smuggling punishable under section 156(1)(8) or misdeclaration under section 156(1)(14) of Customs Act, 1969 or corruption under section 5(2) of Prevention of Corruption Act, 1947 are related to such crimes which are neither bailable nor compoundable on account of their nature and effects on the society, hence they cannot be equated with an offence under section 302, Qisas and Diyat Ordinance, 1991.
(iii) It is known to every sensible person that over-invoicing and under-invoicing can never promote honest competition in the field of business to bring prosperity and economic stability in any country. An honest importer pays all leviable taxes imposed by the Government so that no loss be caused to the National Exchequer but he faces all kinds of sufferings and suffers losses, in spite of his honesty, because a dishonest importer, brings his imported articles in the market at lower price on account of under-invoicing. Such offence further extends to cause loss to the Government Exchequer on account of lesser payment of leviable taxes in place of actual taxes. It is usually observed that when those importers become the sole-distributors and the articles are allowed to be imported free of Custom duty or without payment of other taxes, then act of over-invoicing is adopted to cause the highest possible loss to the common citizens. And if the articles are allowed to be imported after payment of taxes and Custom duties, then under-invoicing is done to cause loss to the Government Exchequer. These are the charges against the applicant. He is alleged to have over-invoiced the actual price due to which the poor taxi drivers would clear their loans by paying at least Rs,40,000 more than the actual price, if only the figure of US $ 1300 is taken into consideration by looking into the enahnced price of US $ 6800 and the actual price of US $ 5,500 per taxi, and on account of under-invoicing he did not pay actual Custom duties, and other leviable taxes by corrupting the Government officials on account of glittering elements of bribe and mutual economical interests at the cost of public interest". On account of these reasons, I am of the view that the cited judgment is not at all applicable to the case of the present applicant, from any angle whatsoever."
82. 17.The learned counsel for the applicant has also relied upon the case of Choudhry Abdul Malik v.
83. The State reported in PLD 1968 SC 349 wherein it has been held that "bail should never be withheld as a punishment". However, their Lordships of the Supreme Court discussed the Law of Bail in detail and then ultimately dismissed the bail application with the observations that:--- "Bail should not be withheld as a punishment. In cases of non-bailable offences coming before the Courts for grant of bail is a relief resting. Primarily in the discretion of the Courts to be exercised with due care and caution. They must be carefully balanced and weighted in the scales of justice and the requirement of the relevant law as contained in sections 496-497, Cr.P.C. Are.` 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 the word of higher import than suspicion. However strong suspicionmay be it would not take the place of reasonable grounds......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."
84. Basically this judgment stresses upon the Court to see the nature of grounds, whether reasonable or sufficient before passing any order on the bail applications. This case is distinguishable from the case of the present applicant on account of the following reasons: "(i) First reason is the same as pointed out and discussed in the foregoing paras. Of this order i,e, the case is concerned with the murder of person which does not affect the society at large while the case of the present applicant affect the whole society.
(ii) Secondly no reasonable ground exists to believe that the applicant has not committed any offence. Even there are no sufficient grounds to put it in the cradle of 'further inquiry' under section 497 (2) Cr.P.C."
85. 18.The learned counsel has also referred the cases of Javed Iqbal Awan v. The State reported in 1990 SCMR 1194, which was concerned with the recovery of money where the accused had been charged of an offence under sections 406, 409 and 420, P.P.C., for collecting money from private parties and had defrauded the common people therefore, the Supreme Court was of the view that "continued detention of accused for purpose of effecting recovery of money alone was not justified". It is obvious that the case of the applicant is not the case of recovery of money, hence this judgment has nothing to do with the case of the applicant.
86. Rest of the referred judgments were authored by the learned Single Judges of the High Courts which could not persuade me to reach the same conclusion as was drawn by those learned Judges besides this reality that neither those judgments are applicable to the case of the present applicant nor any of those judgments discusses the law point with reference to the effects of an offence on individuals and on a society at large: "(ii)The learned counsel for the applicant has also raised very interesting points with reference to section 25-A of Customs Act, 1969 which deals with the action of Customs Authorities when the declared value of import articles is found less than the value determined by them. The contention of the learned counsel was that in a case the value of imported declared value of imported articles is legs than the determined value of Custom Authorities then only the difference of two values can be calculated and recovered without any penal action. If this interpretation is accepted to be correct interpretation, then under-invoicing is fully legalized in all cases and no case under any penal law can be registered against any importer. I, think such a wide interpretation is not possible to be accepted As it turns the whole Customs Act redundant. I think that this section is limited to I.T.P. Values where the Articles are imported without any charge., of smuggling but the dispute arises between the importers and the Custom Authorities in respect of the price of articles shown in the concerned papers and the value determined by the Custom Authorities in accordance to their information's. Hence this section basically deals with the powers of the Custom Authorities 'to determine' the value of the imported articles. The difference between these two values can be solved between the importers and Custom Authorities on the basis of evidence and if the importers ate not satisfied, they cari challenge the same in the Courts. Generally, in such cases the Court orders to deposit the amount of difference till disposal of petitions and the imported articles are released. Such dispute arises at the time of delivery, no matter the importer is speaking the truth or telling lies. In comparison to, section 25-A, section 32 of Customs Act relates to the false statement or misdeclaration by a party knowing or having reason to believe that such document or statement is false. It is done by the importer with intention to evade payment of Custom duties or, taxes leviable thereon. Thus section 32 does not deal with "determination of value" by the Custom Authorities but it comes into operation when a person is charged to have committed an offence punishable under section 156(1) of the Customs Act.
(iii) The learned counsel also raised another important point with reference to section 32 of Customs Act, 1969. It was contended that only section 32(1) relates the punishment while section 32(2) and section 32(3) are concerned with the recovery of evaded leviable Custom duties and taxes. It was contended that section 32(1) of Customs Act would be attracted only on the day when shipment arrived and the false statement was submitted with intention to evade Customs duties and other taxes but the punishment cannot be imposed if the facts of false statement or evading taxes and Custom duties were discovered at any later stage."
87. I think this contention has no force. No doubt section 32(1) of the Customs Act deals with the punishment for such offence as argued by the learned counsel but subsections (2) and (3) of section 32 of the Customs Act deal with period of limitation for the recovery of evaded Custom duty or other taxes. So far as section 32(1) is concerned it can come into operation at any time i,e, before the expiry of the limitation period mentioned in subsections (2) and (3) of section 32 with all powers of recovery of taxes and duties as well as after the expiry of that period but Without any powers of recovery.
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 FIR 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 FIR, is limited to the "first information" about some cognizable offence. If F.I.R. Is lodged after full investigation of a case then such 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 FIR 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.0 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 of trial", therefore, no stage can be treated as premature stage for the purpose of moving bail applications.
88. 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.
89. 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 siezed by the I.O., 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.
90. 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 applicant but they were in fact covered by the previous imports/L.Cs. The copies of all those L/C were also brought before the Court for their perusal. The High Courts 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.
91. 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 character 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. Can a judgment of a subordinate Court be binding upon the Judge of 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.Zulfigar Ali Bhutto decided by a Full Bench of Lahore High Court comprising of Mushtaq Hussain, C.J., Zakiuddin Paul, M.S.H. Qureshi, Aftab Hussain and Gulbaz Khan, H. Reported in PLD 1978 Lahore 523, in the murder of Nawab Muhammad Ahmed Khan, can never be out of the memory of the people of Pakistan. The murder had taken place in Lahore when Mr.Zulfigar 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 F.I.R. 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 charges against the applicant are multiple i,e, corruption coupled with misdeclaration and smuggling.
92. 21.It was also pointed out by the learned DA.-G. That two partners of the applicant are absconding and have not been apprehended till date. Therefore, if the applicant is released on bail, he may also abscond. Moreover, he is very influential, therefore he can tamper with evidence of the prosecution also if released on bail. So far as the apprehension of tampering the evidence is concerned, it may not be possible as the whole case depends upon. Documentary evidence and almost all these documents have been seized by the prosecution and so far as the apprehension of abscondence is concerned, it was never considered by me to be forceful because, the Courts release the accused person only after accepting surety to their satisfaction.
93. 22.Instead of commenting upon these apprehensions any more I would like to conclude this order by saying that whatever may be termed as generalizations; views, expressions, principles, dictums, interpretations, rules or exceptions but bail can be granted to an accused at any stage of the investigation, inquiry or trial, as the case may be, if there are not reasonable grounds for believing that the accused has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt. For ascertaining the existence of reasonable grounds, the Court has not to touch the merits of the case but has to look at the material placed before it by the prosecution. If the material contains nothing but mere allegations or suspicions without any proposed evidence, then it is sufficient to believe that no reasonable grounds exist to connect this accused with that non-bailable offence, lie is accused for. But no conclusive findings can be laid down on such belief except a tentative assessm ent as is the requirement of real spirit embodied in the word " appear" used in section 497(2), Cr.P.C. Contrary to the above, if there are no reasonable grounds for believing that accused has not committed a bailable offence, then the Courts would be declined to grant bail to such an accused. It may not be out of place to point out that the Courts must keep the difference between the following expressions which are usually intermingled: "(a) There are not reasonable grounds for believing that the accused has committed a non- bailable offence.
(b) There are reasonable grounds for believing that the accused has not committed a non- bailable offence."
94. The sentences comprising expression (a) above reflect the except of tentative assessment while expression (b) touches the borders of conclusive finding.
95. Keeping in view, the above difference and depending upon the contents of F.I.R., record produced by both the parties, previous history of the applicant with reference to the allegations as discussed in foregoing paragraphs with allegations of giving death blow to the foreign exchange, lust of collecting wealth at the cost of poor persons' hard labour, saving the amount of demmurage, even by succeeding to get free slips (which facilities are not given to common people), enhancement of price of Car for over-invoicing, smuggling and misdeclaration of price of auto-parts by 30% by under-invoicing etc. It cannot be said at this stage that there are not reasonable grounds or believing that the applicant has not committed any non-bailable offence.
96. 23.On account of the reasons, listed and discussed above in different paragraphs, the request of the applicant for releasing him on bail cannot be acceded to, and, resultantly, both the applications are dismissed and bail is refused to the applicant.