' Applicant Abdul Rauf is facing trial in an F.I.R. No,F-1093 of 1991 dated 4th December, 1991 lodged by one Mr. Mukhtar-ud-Din (Senior Intelligence Officer), Directorate, General of Intelligence and Investigation (Customs and Excise), Karachi registered under section 2(s) and section 16 read with section 156(1)(8) of the Customs Act, 1969.
2. Brief facts unfolded by the interim challan are that one Muhammad Tanveer was intercepted, on the basis of credible information, when he was standing at the airline-counter and being briefed by the Airline for departure on PIA Flight No, PK-213 Dubai. He disclosed that he was carrying foreign currency to Dubai. On being asked by the Customs Intelligence Officer, he took out the keys from the pocket of shirt and opened the suit-case. Search of the suitcase revealed that it was containing Pakistan Currency artfully cancealed in-between the foreign currency. The total currency valued Rs,1,05,00,000. Mashirnama of recovery was prepared on the spot in presence of Mashirs and accused Tanveer was arrested. During investigation and interrogation accused disclosed that he was employee of Hafiz Muhammad Ramzan and Abdul Rauf who were the residents of Lahore and they are his business partners in the smuggling of currency. The bail application reveals that the foreign currency which was allegedly used to camouflage the foreign currency was restored to Muhammad Tanveer which was deposited with the Nazir of this Court.
3. Subsequently the said currency was stated to have been deposited in Allied Bank (Ltd.), Zaibunnissa Street (Karachi). It is obvious that no account could be opened in the bank unless someone had identified the account holder to open the said account. Later on the said amount was also taken away from the bank. It is important to point out that foreign currency was released to accused Muhammad Tanveer after C.P. No, D-1779 of 1992 was filed before this Hon'ble Court as disclosed in para.3 of the bail application. It can be easily smelt that the said C.P. Was not properly contested on behalf of the Customs Authorities otherwise the said currency which appears to be approximately valued more than half crore i,e, about 60 lacs could not be released. Hence some hidden hand was working behind the whole game to protect the currency smugglers. The matter did not end here. Efforts were made to get the Pakistani currency released. Although challan in this case had been submitted on 2-1-1992 yet the absconding accused were kept at large. Although the present applicant was also declared absconder yet as has been stated in para. 4 of the application, at no stage the applicant was declared proclaimed offender.
3. After this success of getting the currency released accused Muhammad Tanveer approached the Court for bail by moving an Application No,6 of 1993 which was allowed by Mr. Justice (Retd.)
Muhammad Aslam Arain (as he then was) in capacity of a Judge of Customs Appellate Court.
Application was moved for reduction of surety on his behalf on the basis of two affidavits filed before the Court and the amount of surety was reduced from Rs,10,00,000 (ten lacs) to Rs,5,00,000 (five lacs) by the same Hon'ble Judge of this Court. It is understandable that these affidavits must have been signed by the deponents who were identified by some learned advocate. After the amount of surety was reduced it was deposited in the shape of foreign currency with the Nazir.
Soon after this, accused Tanveer was released and he absconded within no time. All those facts could remain buried in the respective files if the members of this gang had not been greedy of getting the amount of surety returned to them after abscondence of the main accused namely Tanveer. For the said purposes, the surety now appeared on the scene with an application that he had failed to find out the absconding accused Tanveer and therefore the amount of forfeited surety be reduced and the remaining amount be returned to him. A detailed order has been passed on M.A. No,606 of 1995 in Special Criminal Bail Application No,6 of 1993 by me in this regard.
' It is notable that Rana M. Shamim Advocate had appeared in the case of Tanveer but when M.
Application No,606 of 1995 was moved, the learned counsel Mr. Rana M. Shamim did not appear on the scene. When all these facts were revealed to me, I decided to collect full informations about this case because order of Mr. Justice (Retd.) Muhammad Aslam Arain, had certain instructions but no steps had been taken by the Custom Authorities to comply with those instructions. After the Custom Authorities realised that they may be taken to task on account of non-compliance of the order of this Court, as it had come to light, although by chance, they arrested the present applicant and also revealed before this Court on the strength of some record that the false affidavits had been sworn by the deponents at the time of getting bail for absconding accused Tanveer at the time of obtaining orders for reduction of surety amount from Rs,10 lacs to Rs,5 lacs. One lady, who had sworn false affidavit by stating herself to be the wife of accused, was not the real wife of accused Tanveer because the real wife of accused Tanveer had sent her Nikahnama through the I.O. Of this case which contained her signatures while the affidavit filed before this Court did not contain those signatures. The real wife of absconding accused Tanveer also gave a statement to the I.O. That she had never visited this Court to get her husband released. These were the reasons that I had forfeited the whole amount of bond with my detailed order because the surety, who appeared in the Court, had been fully exposed when he was examined by me in the Court.
4. The I.O. Of the case had arrested the present applicant to show his efficiency.
' But when?
' When the main accused absconded after his release?
' When the foreign currency which was used to conceal the local currency was taken away by the main accused?
' When the Constitution petition was disposed of on account of showing no interest to defend it properly?
' The I.O. Of the case tried to satisfy this Court by saying that he had asked the higher authorities to reopen the case but the concerned official of the C.B.R., Islamabad did not agree to reopen the case. If these allegations of the I.O. Are true then I have no doubt in my mind that these smugglers had the influence in the C.B.R., Islamabad too.
5. If this is the whole and the only story then what is left with the prosecution to oppose the bail application of the present applicant.
' It may not be necessary to point out that the present application was first moved by Mr. Sohail Muzaffar, Advocate on behalf of the applicant before my learned brother in Chambers Mr. Justice Ali Muhammad Baloch who was working as Judge of Special Appellate Court in my absence from Karachi. The learned counsel expressed his wishes before the Court that the matter be placed before the Hon'ble Acting Chief Justice for deciding as to whether the present bail application be put before Mr. Justice (Retd.) Muhammad Aslam Arain who was still in Chambers at that time. The Hon'ble Acting Chief Justice, however instructed on 8-11-1994 that the matter be placed before my learned brother in Chambers Mr. Ali Muhammad Baloch. After this order Mr. Sohail Muzaffar withdrew his Vakalatnama and the applicant engaged Mr. Rana M. Shamim on 29-11-1994. Instead of bringing all other details of the currency scandal I would like to dispose of this bail application on its own merits in the light of the circumstances and facts available at present.
6. The applicant first tried his fate in the Court of Special Judge (Customs and Taxation), Karachi to get him released but the learned Special Judge declined to grant him bail basically on the following two grounds:
(i) The applicant remained absconder for about two years hence he was not entitled for concession of bail on account of being fugitive from law.
(ii) The main accused Tanveer, after grant of bail has also absconded, therefore, there is apprehension that this applicant would also abscond after release.
' Out of these grounds, one is based on presumption that present applicant would abscond like the main accused Tanveer. I am of the view that there was stronger presumption of abscondence of accused Tanveer for the purpose of refusing bail to him on the ground that if he was released on bail then no accused would remain in custody of the prosecution to proceed with the case in case he also absconded because he was the only accused in custody while the remaining two accused namely Hafiz Muhammad Ramzan and the present applicant had been shown absconder in the challan. In spite of this strong presumption, the main accused was released on bail leaving behind him nothing in the hands of the prosecution except his statement that the present applicant was his business partner in the business of currency smuggling. I am of the view that if two accused in a case are in custody and one accused makes a statement against the co-accused then his statement may not be accepted on account of being the statement of a criminal unless corroborated with other pieces of evidence muchless to say that an accused be kept in custody for an indefinite period on the presumption that he would also abscond like the already released and absconded accused particularly when the main piece of evidence is the statement of absconding co-accused.
' So far as the ground of abscondence is concerned I have discussed this point in a case reported as Muhammad Imranullah Khan v. The State 1995 PCr. LJ167. I am of the view that bail may not be refused to an accused on the point of abscondence if he has no knowledge about the case pending against him in any Court. Thus the principle of refusing bail to the absconder is not applied strictly in each and every case. If the case of an accused falls within the ambit of further inquiry then bail becomes a right of the accused notwithstanding the factum of his being abscondence.
7. In the light of these propositions specifically in the light of this reality that the applicant was neither declared proclaimed offender by the learned trial Court nor he was arrested whenever he appeared before the Custom Authorities including the Collector of Customs and in the office of the C.B.R. At Islamabad.
' These were the reasons for granting him bail by my short order dated 22-1-1995 which was confirmed on 20-3-1995.
8. Before parting with this order, I consider it necessary to send the copy of this order to the Chairman C.B.R., Islamabad and the Interior Minister of Pakistan for their information with this hope that the culprits behind this game would be exposed to light by holding secret enquiry against all the concerned persons who are/were working behind such scandals. It is not a case of no evidence because, the record of the Bank, contents of the order sheets in C.P. No,D-1779 of 1992 filed at Karachi, record of the Special Criminal Bail Application No,6 of 1993 at Karachi containing affidavits of fake persons etc can fully radiate the path to find out the official as well as the influenced person working behind this game.
' Can it be expected that the F.I.A. Would hold secret inquiry to bring into light the hidden hands working behind the currency smuggling to save this poor country from the jerks of economical crises which are being given by certain officials of C.B.R. And the Banks.