1. ' These five bail applications moved on behalf of accused Qurban Khan son of Alam Khan and Haroon Rasheed son of Saleem Khan arise, out of F.I.R. No,10(19) DV-INV-Misc./91/D, dated 24-2- 1992. This was the basic F.I.R. Lodged by Muhammad Saleem, Principal Appraiser, Directorate of Inspection and Training (Customs), Central Excise and Sales Tax, Karachi on 24-2-1992 under section 156(1)(14)(82) of the Customs Act, 1969 for the alleged contravention of section 32 of the Act. During investigation, besides the applicants, co-accused Imtiaz Ali Taj, Abdul Majeed Askani and some officials of the Customs Hotise, Gawadar and Quetta, being found involved in the case, were also shown accused and five challans were submitted in the Court of Special Judge (Customs and Taxation), Karachi. Applicants are thus accused before the trial Court in Case Nos.156 of 1992, 155 of 1992, 31 of 1992, 154 of 1992 and 32 of 1992. Bail applications moved by different accused were heard and decided by separate orders by the learned trial Court. Some of the accused amongst whom are Abdul Majeed Askani, Clearing and Forwarding Agent, Ali Muhammad Baloch, Shahid Hussain, Mumtaz Ali Changezi and Khalid Aziz were granted bail by this Court. Some of the accused have been granted bail before arrest by the learned trial Court.
2. ' In the first round, bail application moved by these applicants was rejected by the learned trial Court by its order, dated 12-5-1992 and their application before this Court was dismissed by my learned brother Qaiser Ahmad Hamidi, J. By an elaborate order, dated 18-6-1992. After the challans were submitted, applicants once again approached the learned trial Court for bail, but their such applications have been dismissed by separate orders, dated 13-2-1993. It is in these circumstances that the applicants have again approached this Court for grant of bail and since all bail applications arise out of the basic F.I.R., dated 24-2-1992 the same are being disposed of by single order.
3. ' The brief facts, as disclosed in the F.I.R. Are, that a credible information was received that a fraudulent export was manipulated from Gawadar Customs House and payment of Export Rebate Claims had been received by some parties in collusion with the staff of Gawadar and Quetta Customs House. A preliminary enquiry was conducted which revealed that Messrs Concord Export House, of which the applicants are the proprietors, were employed to facilitate fraudulent export of polyester Dyed Jacquard Fabrics and Glass Marbles to Dubai under forged shipping bills through one Imtiaz Ali Taj, Chief Executive of Messrs Charley Enterprises of Quetta. The shipping bills were filed and processed through Abdul Majeed Askani, who was Clearing and Forwarding Agent.
4. Applicants in these applications were shown directly associated with the entire deal being the proprietors of Messrs Concord Export House and had shared huge amount received towards Duty Drawback Claims with Imtiaz Ali Taj of Messrs Charley Enterprises of Quetta.
5. ' Applicants were arrested on 16-4-1993 and are in custody since then, are found guilty of offence during investigation and interim challans were submitted on 10-11-1992 against them and the co- accused in the Court of Special Judge (Customs and Taxation), Karachi.
6. ' Mrs. Ismat Mehdi, learned Advocate for the applicants, has contended that two Constitution Petitions Nos.27 of 1992 and 28 of 1992 were filed by Messrs Charley Enterprises of Quetta and Messrs Concord Export House, Karachi respectively in respect of 20% arrears of Duty Drawback against export of the goods in question. Complainant in this case was arraigned as respondent No,12 in those petitions. Notices of the petitions were issued on 22-2-1992 whereafter the complainant hurriedly filed the F.I.R. On 24-2-1992 to save himself from the consequences of the petition, in which mala fides were alleged against him and other officials of the Customs Department. It is next contended that the consignments were shipped in June and July, 1991, whereas F.I.R. Was lodged in February, 1992, long after a major portion of the Duty Drawback Claims was already paid to the applicants/exporters. When applicants claimed 20% balance of rebate amount, demand for illegal gratification was made, from them by the officials of Customs Department, which was not paid but instead Constitutional Petitions were filed. The F.I.R. And subsequent proceedings are thus maliciously initiated. Further contention of the learned counsel is that under subsection (2) of section 32 of the Customs Act, even if where duty or charge had been erroneously refunded (as alleged in the instant case), a show cause notice was to be served against the Exporter within three years of the relevant date requiring him to show-cause why he should not pay the amount specified in the notice. Under subsection (3) of section 32, the show- cause notice is to be served within 6 months of the relevant date but, as contended, the notice is issued recently and after one year of the actual F.I.R., which again would show mala fide of the prosecution. It is further contended by the learned Advocate that the offence with which the applicants are charged is punishable with maximum punishment of three years and since the prohibitory clause of section 497 of Cr.P.C. Is not attracted, grant of bail in such cases is to be a rule and refusal an exception. The applicants, who are in jail since over a year for offence for which they can at the most be convicted and sentenced to imprisonment for three years, have qualified for bail. In support of such contentions, the learned Advocate has relied upon (i) Order in Special Criminal Bail No,52 of 1995, (ii) Order in Special Criminal Bail No,6 of 1988, (iii) Order in Special Criminal Bail Application No,73 of 1988, (iv) Order in Special Criminal Bail Application No,56 of 1985,
(v) 1986 SCM R 1380, (vi) 1992 M LD 880 (Karachi), (vii) 1978 SCM R 64, (viii) 1969 SCM R 233, (ix) PLD 1972 SC 277, (x) 1989 PCr.LJ 143.
7. ' The last contention of the learned Advocate is that huge foreign exchange has been earned by the applicants as they have, in fact, exported the goods through Gawadar Port and the Investigation Agency has not verified the shipping and landing documents in respect of the export to Messrs Sangita Traders of Dubai.
8. ' Mr. Abid S. Zuberi, learned Advocate, appearing for the State, has vehemently opposed the grant of bail and has argued that the case of applicants is similarly to that of co-accused Imtiaz Ali Taj, whom bail was refused by this Court; the total length of the fabrics to be exported was 1,53,00,00 meters which could never have been exported from Gawadar Port, which was nonoperational at the relevant time nor could the goods be carried by Country Crafts Al-Amini, Al-Anwari, as said crates had no capacity of carrying bulk load from the Gawadar Port; the bills of entry are in conflict with the landing certificates; quantity of allegedly shipped goods differs from the actual goods which applicants and Imtiaz Ali Taj are shown to have exported; and lastly that it has never been proved that the goods said to have been exported were purchased from any local producer or seller. He has referred to the order passed by this Court in Special Criminal Bail Applications Nos.85/1992 to 89/1992 where bail was refused although offence was punishable with three years' imprisonment. On the principle of consistency, it is contended that the applicants cannot claim bail, as the case of accused, who are enlarged on bail, is distinguishable and applicants are direct beneficiaries of the amount and cannot claim bail as of right. Mr. Abid S. Zuberi then referred to the case of Saeed v. The State PLD 1992 Kar. 137 where a learned Judge of this Court while deciding bail application of the accused in a case under sections 302, 147, 148 and 149, Cr.P.C. Held that the Court was not to go into details of evidence, nor the evidence could be sifted at bail stage. It was also observed that all that was to be seen in a bail application was that whether there are sufficient reasons to connect the accused with the commission of the alleged offence. Reference is also made to the case of Sanatta and another v. The State 1982 SCM R 208 where the Honourable Supreme Court observed that the fact of medical report not agreeing with account of witnesses, may be relevant factor at trial yet such matter cannot be gone into deeply at bail stage. The High Court while exercising discretion had refused bail which the Honorable Supreme Court did not interfere with and held that High Court had not exercised discretion illegally or perversely.
9. ' Mrs. Ismat Mehdi then wanted to argue further in reply to the contention of learned Advocate for the State. She has again been heard when a contention is raised that Imtiaz Ali Taj whom bail is refused by this Court, had not exported the goods but it is the applicants, who had exported the goods and refusal of bail to Imtiaz Ali Taj cannot be taken as a ground for refusing bail to applicants. I would now advert to the case-law referred by the applicants' learned Advocate.
10. ' In Muhammad Ameen v. The State Special Criminal Bail Application No,52 of 1992, the accused, who was charged for offence under section 156(1) (14) read with section 32 of the Customs Act, was granted bail as the learned Advocate appearing for the State, had conceded to the legal position and further that offence alleged was punishable with imprisonment for three years or fine or both.
11. ' In Meghanmal v. The State (Special Criminal Bail Application No,6 of 1988) bail was granted by this Court to the accused, who was charged for offence under section 156(1)(14) of the Customs Act on the ground that the maximum punishment prescribed was only three years in addition to fine.
12. ' In Haji Maqbool Ahmad v. The State Special Criminal Bail Application No,713 of 1988 accused was charged for an offence under section 156(1)(82) of the Customs Act and bail was granted as the offence was punishable to imprisonment for three years and on the ground of consistency as co- accused was granted bail.
13. ' In Abdul Waheed Bawani and others v. The State Special Criminal Bail Application No,56 of 1985 bail was granted to the accused, who were charged with offence under section 156(1)(14)(77) read with section 32 of the Customs Act, 1969 as the show-cause notice contemplated under subsections (2) and (3) of the Customs Act, which is mandatory was not properly issued and no illegal loss was caused to public exchequer.
14. ' In the case reported in Muhammad Ramzan v. Zafarullah and another 1986 SCM R 1380, the cancellation of bail granted to the accused was sought and the Honourable Supreme Court observed that no useful purpose was likely to be served if bail to accused was cancelled on any technical grounds because after arrest he could again be allowed bail on the ground that similarly placed other accused were on bail.
15. ' In the case Choudhry Muhammad Aslam v. The State reported in 1992 M LD 880, a learned Judge of this Court while dealing with the bail application observed that basic rule is bail and not jail, except where circumstances suggest thwarting the course of justice by the accused.
16. ' In the case Ejaz Akhtar v. The State reported in 1978 SCM R 64 the Honorable Supreme Court held that the fact of amount allegedly embezzled by accused being large was by itself no ground for refusing bail. It was also observed that even apprehension that accused might tamper with evidence if enlarged on bail was no ground for refusal of bail.
17. ' In the case Haji Wali Muhammad v. The State reported in 1969 SCM R 233, the Honorable Supreme Court observed that in criminal charge short of involving a sentence of death or transportation for life, bail should ordinarily be allowed disregarding grounds of seriousness or anti-social nature of offence unless there be strong grounds in shape of evidence in belief that accused is guilty.
18. ' In the case Amir v. The State reported in PLD 1972 SC 277, the Honorable Supreme Court observed that for the purposes of bail, law not be stretched in favour of the prosecution and benefit of doubt, if any, must go to accused.
19. ' In the case Rafeeq v. The State reported in 1989 PCr.LJ 143, a learned Judge of this Court held that custody of accused is never intended to be used as a punishment it is designed to facilitate investigation, or trial by making accused available whenever he is required and if the case does not fall under the prohibitory proviso of section 497, Cr.P.C., and maximum sentence was less than 10 years' R.I., the Court would grant bail unless there were compelling reasons to refuse the same.
20. ' I have heard the arguments of learned counsel at length, perused the record and the case-law referred. From the perusal of the challan following pieces of evidence seem to have been collected during investigation:--
(a) Messrs Charley Enterprises received cheques in the aggregate amount of Rs,41,309,615 in repayment of customs duty and refund of sales tax on the fraudulent export;
(b) Mercantile Marine Department, Ministry of Communication (Board of Shipping Wing), Government of Pakistan have confirmed that Al-Amini and Al-Anwari could not carry the huge number of bells of the allegedly exported goods;
(c) Messrs Sangita Traders of Dubai did not exist as was revealed during investigation;
(d) The shipping agents could not disclose the names of the parties, from whom the goods were purchased in Pakistan;
(e) Imtiaz Ali Taj, the Chief Executive of Concord Export House is the brain behind the whole affair and he provided the technical know-how to the applicants herein;
(f) No proof is available with applicants to show transportation of huge quantity of exported goods from Karachi to Quetta or Gawadar;
(g) The shipping documents and landing certificates are found to be fraudulently prepared; and lastly
(h) That there are still some accused, who are absconding and the applicants have links with such accused.
21. During the first round when the bail application of applicants herein came for hearing before my learned brother Qaiser Ahmed Hamidi, J. He took almost all these facts into consideration and refused bail. Something more than what was available at the time, has been found out during investigation which directly involves the applicants and co-accused Imtiaz Ali Taj with the commission of alleged offence which has resulted into heavy loss to Government Exchequer.
22. ' The case-law referred by the learned Advocate for the applicant, no doubt lays down the principle that in case where the offence with which the accused are charged is not punishable with death, imprisonment for life or for 10 years, grant of bail should be a rule and refusal an exception. The present case is of exception and although offence with which applicants are charged is punishable to imprisonment for three years, bail cannot be claimed as of right looking to the nature and circumstances of the case. Because the applicants filed two Constitution petitions in the High Court of Baluchistan at Quetta, no inference could be drawn that since complainant of this case was arraigned as a respondent, the entire exercise undertaken by the prosecution would be deemed to be malicious. As held by me while dismissing bail application of co-accused Imtiaz Ali Taj that he was a beneficiary of the amount received as duty drawback, and his case was distinguishable from the case of those accused who were granted bail, for the same reasons I also hold that applicants herein are also beneficiaries of the huge amount paid to them and they are not entitled to bail. The bail applications are accordingly dismissed. The learned trial Court shall proceed to decide the case expeditiously and shall examine the complainant at least within a period of two months, where after applicants may repeat the bail applications if so advised.