1. I would like to decide Special Criminal Bail Application No,3 of 2003 of applicant Muhammad Afzal Magsi and Special Criminal Bail Application No,6 of 2003 of applicant Syed Shahid Ali Subzwari by a single order as the bail order arise out of the same F.I.R.
2. Applicants are facing trial in the Court of Special Judge (Customs and Taxation), Karachi for an offence under section 156(1)(14)(82) of the Customs Act, 1969.
3. Briefly the prosecution case as revealed in the F.I.R. is that Messrs Shaheen Impex, Mr-5/87, 70 Thanai Lane, Jodia Bazar, Karachi is owned by one Muhammad Arif who opened L.C. on 17-94998 in favour of Messrs Kenya Tea Development Authority for import of tea as per Invoice No,97 dated 28- 7-1998 for 400 paper cases of 26,320 Kgs. The consignment was scheduled to arrive on 8-11-1998 but it was delayed and the importer Messrs Shaheen Impex refused to get the consignment cleared. The Custom Authorities without compliance of necessary proceedings auctioned the consignment on 29-3-2000. One S. Muhammad was declared successful bidder for the bid of Rs,18,52,000 and the consignment was handed over to him. Custom Authorities had to charge duty and taxes at the rate of Rs,204% and the rerpaining arpount of Rs,7,43,170 was to be returned to Messrss Shaheen Impex, Karachi, if nobody appear to claim the amount it was to be credited to the State. After completion of auction process cheque bearing No,B-934913 dated 6-10-2001 was issued and dispatched in the name of Messrs Shaheen Impex by Treasury Office of Customs on a fictitious address "(Shaheen. Impex, Shop No, 8, Boultan Market, Karachi"), through TCS Courier Service instead of actual address of Import Firm i.e, Mr-5/87, 70 Thanai Lane, Jodia Bazar, Karachi.
4. During investigation it revealed that the above cross-cheque was credited in account of one Naushad Ali. It - is further revealed that accused Muhammad Afzal Magsi, the Appraising Officer Customs, Tikamdas Khatri, Principal Appraiser, S. Shahid Ali Subzwari and Naushad Ali in connivance with each other illegally got the auction conducted and managed to dispatch the cheque on wrong address. Applicant Muhammad Afzal Magsi had prepared the claim of sale proceedings wherein he mentioned that all the formalities have been completed and refund was lawful. He forwarded the same to Principal Appraiser.
5. The F.I.R. was registered and the accused were apprehended during investigation.
6. It is contended by Mr. Rana M. Shamim learned counsel for applicant Muhammad Afzal Magsi that the applicant in usual procedure processed the documents in routine, marked to him by his superiors and that he was neither sanctioning authority nor had signed the cheque. It is submitted that the offence under section 156(1)(14)(82) with which the applicant has been charged is punishable for three years, as such the case of applicant would come out of prohibition contained under section 497(1),'Cr.P.C. It is argued that section 32 of Customs Act is not applicable in this case. The goods in question were auctioned in accordance with law with the approval of Customs Officials. Cross cheque in regard to sale proceeds was issued in the name of exporters and dispatched by the Treasury. Office but the applicant had no concern with the dispatch of cheque.
7. The applicant neither issued cheque nor received the money. The whole case depends upon documentary evidence which has already been collected by the police. The applicant is a respectable public servant and the trial is not likely to be completed in near future. The F.I.R. in this case was delayed by about two years, The applicant is no more required to-. the police as the challan ,has already been submitted in the I Court. Section 32 of Customs Act has no applicability, as no false or untrue statement has been made by the applicant before Customs Officers, No notice under subsection (2) of section 32 was ever served upon the applicant which is mandatory in law.
8. Mr. Khawaja Sharful Islam for applicant Syed Shahid Ali Sabzwari argued' that the two F.I.Rs, have been registered against the applicants and challan has been submitted in Banking Court as well as Special Judge (Customs and Taxation)., Karachi which is contrary to section 403, Cr.P.C. as well as Article 13 of the Constitution of Islamic Republic of Pakistan. No specific part has been assigned to the applicant in F.I.R. It is stated that F.I.A. has not recovered any document which could be said to have been signed by the applicant to connect him in the commission of offence. He is neither responsible for auctioning the goods nor party to dispatch the cheque on the wrong address. It is submitted that only dispatch clerk was responsible for sending the cheque at wrong address. The record recovered by F.I.A. police does not show the involvement of present applicant. Nobody has been examined from the bank who could point out that who actually opened the account and who received the .money from the bank. Learned counsel for applicants have relied upon the cases of Wajid Ali v. The State 2000 M LD 1572, Younus Habib v. The State 2000 PCr.LJ 721, Haji Wali Muhammad v. The State 1969 SCM R 233.
9. Mr. Mahmood Alam Rizvi learned Standing Counsel has opposed the bail plea. He stated that section 32 would not be applicable against the accused and the remaining sections applied against the applicants would not bring the case of accused under prohibitory clause of section 497(1), Cr.P.C.
10. The record shows that applicant Muhammad Afzal Magsi was the Appraising Officer Customs whereas Syed Shahid Ali Sabzwari is Treasury Officer on deputation in Customs Office for the last two years, The auction proceedings were not held by either of the two accused nor the cheque was issued by them. The allegations at the most against these two accused are that they in connivance with Naushad Ali and Tikamdas Khatri, Principal Appraiser had conducted the auction illegally. The beneficiary is accused Naushad Ali who is still absconding. The active involvement of applicants is yet to be established at the time of trial. The documents have already been collected by the F.I.A.
11. Police. Offence if any, against the accused would not fall under the prohibitory clause of section 497(1), Cr.P.C. the arguments to the effect that they have conducted routine work in daily process and no mala fide was involved, has some force in it as the alleged cheque was not dispatched at wrong address by either of the two applicants. The ingredients of section 32 of the Act have not been attracted. The remaining offences with which the accused have been charged do not fall under prohibitory clause of section 497(1), Cr.P.C.
12. The accused are granted bail in the sum of Rs,2,00,000 each (Rupees two lacs each only) and P.R.
13. Bond in the like amount to the satisfaction of the trial Court.