ORDER SHAFI MUHAMMADI, J.- Applicant Dr. Arsalan Subugutgeen, Assistant Collector of Custom presently posted at Faisalabad appeared to have been booked in an F.I.R.
No.4/1995 registered at Police Station F.I.A. 1 & AS. KSP Karachi on 16.5.1995 lodged by Muhammad Tufail A.C. (A.I.B) in respect of an incident occurred on 24.12.1995 u/S. Under section 2(a), 16 and 32 of the Customs Act, 1969 punishable under clauses (8), (9), (14) and (77) of Section 156(1) of Customs Act, 1969.
2. Interim bail was granted to the applicant on 24.8.1995 till 27.8.1995 after hearing the learned counsel for the Petitioner and by keeping in view the circumstances narrated by the applicant.
On 27.8.1995, Mr. Faruq H. Naek, the learned D.A.G, appeared on behalf of the State along with I.O.
Faqeer Muhammad and Mr. Asrar Ali Assistant Director (Legal) F.I.A. The order of this Court for granting interim bail to the applicant was assailed emotionally by the F.I.A, through the learned D.A.G, who hotly stressed that as the applicant could seek this relief from the trial Court therefore he be directed to approach the trial Court in the first instance instead of approaching this Court directly. In support of this contention, the learned D.A.G, sought strength from an unreported e of Gulzar v. The State (Criminal Misc. Application Ni 1t> of. 1994). The cited case was authored by me and its relevant para referred by the learned D.A.G, runs as under: "No doubt the jurisdiction of the High Court u/S 561- A Cr.P.C, for quashing the proceedings is coextensive (I would like to say much more extensive than deemed by the learned counsel) and concurred with the jurisdiction of the trial Courts but it does not give any right to the High Court to invoke the same "in each and even case" or when desired or wished bx the Hish Courts. For example the jurisdiction of the Hi eh Courts is also coextensive and concurrent with the jurisdiction of the trial Courts in the matters of bail applications under section 497 Cr.P.C, but it does not mean that the accused have been given right to move their bail application under section 497 Cr.P.C, direct lx before the Hish Courts as and when desired by them especially when the same relief can be sought from the trial Courts. However, if a High Court decides to function as "trial Court" in any criminal case, then, of course, an application u/S 497 Cr.P.C, can be entertained bx the Hish Court as was done, perhaps once in the judicial history of Pakistan, bx the Lahore Hish Court in the unique and most crucial and controversial case of State Versus Zulfikar Ali Bhutto reported in PLD 1978 Lahore 523 during the Martial Law Resime after the Prime Minister of Pakistan had been ousted b\ General Zia in a Militant Coup but such exceptionalities cannot replace the generalities in the field of law."
(underlining is my own)
3. I have no doubt in my mind that the learned D.A.G, has misunderstood the real spirit of that judgment particularly the true import of the referred lines. Hence I consider it necessary to remove that misconception which could not be expected to have been germinated on account of words "in each and every case" used in its the underlined portion. In the referred case two applications under section 561-A Cr.P.C, were filed on behalf of three applicants namely Moinuddin, Aslam (applicants in Cr. Misc. No.98/94) and Gulzar (applicant in Cr. Misc. 16/94) for quashment of proceedings pending before two different trial Courts directly in the High Court instead of seeking relief under section 2489-A, Cr.P.C.; or under Section 265-K Cr.P.C, from the trial Courts in the first instance. The learned advocates of the applicants had relied upon the judgment of this Court in the case of Syed Zafar Hussain Naqvi Vs The Slate reported in 1991 P. Cr.L.J. 2304 wherein Muhammad Aslam Arain J., (as he then was) observed: "The learned Advocate was asked to explain as to why he has not moved the trial Court u/S 249-A dr 265-K. Cr.P.C, for the acquittal of the accused and instead has invoked the jurisdiction of this Court under section 561-A. Cr.P.C. The learned Advocate has contended that the jurisdiction of this Court is co-extensive and concurrent with the jurisdiction of the trial Court. In his view there is no bar to invoking the jurisdiction of this Court directly under section 561-A. Cr.P.C. In support of his contention he has placed reliance on Mi an Munir Vs. The State 1985 SCM R 257. Qaiser Saleem and others V. Hashim Hussain and another 1986 P. Cr.L.J. 133, Ali Nawaz and another V. The State and another's 1986 P. Cr.L.J. 411. Muhammad Tufail and others V. The Slate and another 1986 P. Cr. L.J.
2749."
"The applicant could invoke the jurisdiction of this Court under Section 561-A, Cr.P.C, rather than moving the trial Court for his acquittal under section 265-K. Cr.P.C. The case law referred is very clear in this respect. In my view the continuance of proceedings before the trial Court would not only be an exercise in futility as the evidence on record cannot result into the conviction of the applicant and co-acared but to my mind it shall also be abuse of the process of law. Accordingly the proceedings of Sessions Case No.82/90 under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance. 1979 pending before the Second Additional Sessions Judge.
Karachi are herein quashed."
After discussing the cases referred in the above-quoted paras as well as the cases reported in PL1)
1992 Karachi 104. 1992 P. Cr.L.J.2320. 1992 P. Cr.L.J. 1936. 1992 P. Cr.L.J.58. PLD 1992 S.C. 353. I had expressed my view that the High Court cannot exercise its preserved jurisdiction under section 561- A Cr.P.C, to provide any such relief in each and every case which can be sought under section 249- A Cr.PC. From the Courts of Magistrates or under Section 265-K Cr.P.C, from the Session Courts but only in special circumstances means in exceptional cases.
In that regard I had quoted several examples where the High Court exercised its inherent powers under section 561-A Cr.P.C, directly without asking the applicant to seek relief from the trial Court in the first instance. On the basis of that preposition I had declined to quash the proceedings in the case of Moeenuddin and Aslam by observing that:....... "I think that neither the Judges of the High Courts are supposed to possess any mystical or magical forces or supernatural and spiritual powers on the basis of which they could know the character of any witness without any evidence nor the High Courts are supposed to perform the duties of Magistrates or Sessions Judges to record evidence of a case to find out the truth and the falsehood of a witness. This duty has to be performed by the trial Court only to find out whether any person is a tout of police or a third witness."
But at the same time the proceedings of the case against the second applicant namely Gulzar Ali were quashed by observing that: "I am fully convinced that under such circumstances, continuation of proceedings before the trial Court against accused/applicant Gulzar Ali would be merely interaction of proceedings with undoubtable and un-questionable certainty of antecedent resilience of acquittal. Thus sequel of such proceedings would mean nothing but a futilous exercise."
4. It is evident from the observations made in the above paragraphs that the High Court would avoid to exercise its powers under Section 561-A Cr.P.C, or u/S. 497 Cr.P.C, if applications are moved under these sections directly to the High Court instead of seeking the said relief from the trial Courts u/S 497 Cr.P.C, for bail or u/S 249-A Cr.P.C, or u/S 265-K Cr.P.C, from the Courts of Magistrates or Session Courts respectively, as the case may be, in the first instance unless there are exceptional circumstances to entertain such applications.
The learned D.A.G, agreed to this preposition but he contended that there were no such circumstances on account of which this Coupsuld exercise its powers to grant bail directly to the present appeallant. This contention of the learned D A.G. Was ascertainable and therefore, by keeping in view the anxiety of F.I.A, shows through the learned D.A.G.. I considered it necessary to determine whether there were circumstances on account of which interim bail be confirmed or the same be refused with direction to the applicant to approach the trial Court.
5. The I.O. Of the case, in reply to several questions put by the Court, disclosed that:
(i) Final charge sheet had not been has submitted in this case till date although more than three month were consumed under the garb of investigation.
(ii) First FIR in the case bearing No. S/Misc.872/94-AIB was lodged on 01.01.1995 by one Mr. Muhammad Tufail A^O. (A.I.B).
(iii) 2nd F.I.R, was lodged by the F.I.R, after the case was transferred to A.D.G. F.I.R, vide letter dated 4.5.1995. The second F.I.R, is merely a reproduction of the F.I.R, dated 01.01.1995.
(iv) Nothing has been brought on record to show what had happened during the expired period of about 4 months which started from 01.01.1995 when first. F.I.R, was lodged and ended on 4.5.1995 when case was transferred to the F.I.A.
(v) The F.I.A failed to disclose whether any enquiry was held or not by anyone during that period of four months? And if any enquiry was held, that what was its result?
However, it cannot be presumed that no enquiry or investigation was held during that period.
Therefore it can be believed that the present applicant might have been exonerated in that inquiry from the charges, if any, levelled against him. He was not treated by the CBR on the same footing as the co-accused namely Wali Khan was treated.
Besides the above disclosure, the I.O. Of this case, in reply to a question, stated that final charge- sheet in this case could not be submitted because several persons had not been arrested and moreover applicant Dr. Arsalan as well as co- accused Wali Khan had not joined the investigation although notices were served upon them. If they had joined the investigation, the final charge- sheet could be submitted within shortest possible time without arresting them. In the light of this stand the applicant was, ordered to join the investigation and the matter was adjourned. The applicant was investigated for three days in the police station by the F.I.A, and then he was allowed to go.
6. On 7.9.1995, when this matter was again tabled for hearing, the F.I.A. Authorities disclosed that they had completed the investigation and the applicant was no more required for further investigation. Several other factors were also brought into light to decide the question whether circumstances existed or not to confirm the interim to the applicant.
The following factors are worth-mentioning to decide the said questions.
(i) One Mushtaq Ahmed, examining officer, to whom bail was granted by the trial Court gave a statement before the F.I.A, which was found contradictory from his previous statement recorded on 22.12.94. According to his statement he had accompanied the Clearing and Forwarding Agent to check the containers on the direction of the present applicant. Containers could not be checked and he informed Dr. Arsalan that the clearing agent had refused to get the containers checked.
(ii) The smuggled goods were released after receiving instructions from Mr. Wali Khan, Collector of Customs who informed that these containers contained the classified nature of goods.
(iii) One Mr. Amjad Shah S.P.01/4 D.E.O, examined Waseem Sharif who disclosed that bills of entries were passed on to Dr. Arsalan for completion.
It is notable that this Waseem Sharif has been shown as absconder in the final charge sheet. I need not to comment upon this point of investigation regarding the statement of absconders against another person and his abscondence after he was examined by the said Amjad Shah.
(iv) Dr. Arsalan had given illegal orders to release the goods but the said orders were not complied with.
It is thus admitted position that offence had not been committed if it is believed that the applicant had given illegal orders. Even otherwise these orders are stated to be verbal orders which evidence can be termed as "hear-say" evidence.
(v) Wali Khan the then Collector of Customs (Appraisement Collectorate) had directed to release the goods.
The said order was complied with.
(vi) D.C. (Preventive) and A.C. (Preventive) and informed Wali Khan about the forged document but he ordered to release the goods by saying that they were classified goods. Hence they had no option but to release the goods. Thus it is evident that offence was committed under the orders of Wali Khan.
Although, at this stage, the record of case is silent about any other role of the present applicant yet the I.O. Stated in the charge sheet still to be submitted before the trial Court that Wali Khan and Dr. Arsalan Subugutgeen had played the vital role in the clearance of 11 containers. Thus I asked the I.O.
How he could say so that the role of the applicant was similar to that of Wali Khan? The reply of the I.O. Was that applicant was working under Wali Khan and he had attempted to get the containers released under the instructions of Wali Khan. May be so but admittedly there is no convincing evidence except hearsay evidence and even if it is believed that the applicant had done so, he had obeyed the orders of his senior only to the extent of conveying the said message whether such an act can be treated an attempt to commit an offence? It needs not to be commented upon at this stage because it can either damage the case c ' prosecution or the applicant.
7. By keeping in view all these factor, the question before this Court can be easily answered on the basis of following realities:
(i) If the applicant did not appear to have been found guilty by the authorities of Customs Intelligence before the case was transferred to F.I.A, then there must be strong evidence to establish the contrary findings.
(ii) No specific role has been assigned to the applicant in the j commission of this offence except verbal evidence that he has attempted to get the goods released by giving verbal illegal orders but admittedly these orders were not complied with. Hence the effects of giving illegal order which were totally ineffective, have still to be judged particularly when this role had been based upon the statement of an accused who is absconder. Why he was not arrested? When his statement was recorded? The investigation is silent on these points.
(iii) If he had conveyed any message of his senior he had not committed any crime unless he is proved to be in collusion with Wali Khan in commission of this offence. No strong or even weak evidence is on record to prove that offence was committed on account of his co-operation with Wali Khan
(iv) The whole case revolves around Wali Khan because commission of offence was attributed to be the outcome of his orders, no matter the charges levelled against Wali Khan are true or not as I need not to touch his case, but it can be said with certainty that charges against the present applicant cannot be proved unless some evidence is brought on record during proceedings before the trial Court. When these proceedings shall start? No one knows the reply of this question because the charge-sheet in this case has not been submitted, admittedly, till date.
(v) If the F.I.A, could not submit the final charge-sheet because the applicant had not joined the investigation then the said plea has also lost its importance because the applicant joined investigation and was investigated thoroughly for three days in the police station by the Investigating Authorities. The out-come of that investigation has not added anything more to the inquiry already done and completed.
(vi) Another ground, although not too weighty to be relied upon as the sole ground yet not to be termed as weightless, is that the applicant came from Faisalabad which is situated several hundred miles from Karachi. He reached the trial Court to get bail before arrest but after apprehending that he may be arrested on account of presence of F.I.A, officials in the trial Courts, he immediately approached this Court because there was no other alternative for him except to pray this Court to invoke its jurisdiction to save his respect. The Courts have to prove to be the Courts of justice and not the Courts of prosecution or persecution. The facts narrated by the applicant were more than enough to grant him interim bail till such time the same are controverted by the prosecution. If the prosecution proves that facts narrated by any accused were based on falsehood, then the Courts must recall the order of granting interim bail. Contrary to that, if the facts stated by any applicant for grant of interim bail are found to be the same as stated by the prosecution and the matter appears to be falling within the ambit of I furhter inquiry then bail becomes a right of an applicant u/S 497 (2) Cr.P.C, no matter the applicant is in custody or free.
Inspite of all these factors, I would have preferred to grant protective bail to the applicant provided the trial Court had refused to grant bail to co-accused Mushtaq Ahmed and provided further that the case of present applicant had not been on better footing. In these circumstances, granting protective bail to the applicant as suggested by the learned DAG instead of confirming the interim bail shall amount to burden the applicant with undue worries particularly when he is neither a previous convict nor alleged to be a criminal. He is to be treated a responsible officer of the C.B.R, no matter he has been nominated as an accused in this case. To be an accused does not mean to be a criminal. Therefore, the collective result of all these factors puts the case of applicant as an exception which justifies this Court to exercise its power to grant interim bail instead of granting him protective bail. These were the reasons on account of which interim to the applicant on 24.8.1995 was confirmed on 7.9.1995.