' JAVED IQBAL, J.---The above captioned petitions for leave to appeal are directed against the order, dated 29-4-2003 passed by learned Lahore High Court, Lahore, whereby the bail applications preferred on behalf of petitioners have been rejected which are being disposed of by this common order.
2. "The prosecution story as given in the F.I.R. Registered on the statement of Muhammad Afzal Shaheen (complainant) briefly stated is that he worked as Custom Clearing Agent in Dry Port Sambrial, that on 4-2-2003 at about 1-30 p.m. He saw two containers parked near his office, that Sheikh Najam-ul-Hassan Custom Inspector alongwith officials and private labourers were present, that they unloaded the containers and inspected the cartons which carried fire works, that suddenly the containers exploded, were broken into pieces, resulted in death of 16 persons and injury to more than 30 persons. During investigation, it was found that the containers were booked by Blue Apple International from Dubai, that Khalil Ahmed and Shehbaz are the agents, who were clearing the containers from the custom staff and that the containers contained fire works which were purchased by Muhammad Amin alias Irfan petitioner. In the final report under section 173, Cr.P.C. Muhammad Amin, Khalil Ahmed, Muhammad Arshad and Muhammad Yaqoob have been challaned." The petitioners moved bail applications which have been rejected vide order impugned, hence these petitions.
3. Mr.. Wasim Sajjad, learned Senior Advocate Supreme Court entered appearence on behalf of Muhammad Amin (petitioner in Criminal Petition No, 218 of 2003) and contended emphatically that no iota of evidence has come on record connecting the petitioner with the commission of alleged offence who was neither the importer of thecontraband items nor involved in the said transaction in any manner whatsoever. It is argued that a high level inquiry was conducted regarding the tragic incident by a panel of Investigation Officers and it was found that the incident was an accident simplicitor which occurred due to the negligence of the labourers who were unloading the cartons and the . Fact of their smoking (cigarettes) and that had also been established which ignited the firework. It is pressed time and again that the petitioner was neither the importer of the articles which became cause of incident nor involved in the said transaction of the imported material and due to this reason he was not nominated in the F.I.R. Nor any specific role was assigned to him in the subsequent investigation. It is contended that no evidence whatsoever has come on record showing that the tragic incident was the outcome of any intentional act of the petitioner and he could not be held responsible for the negligence of the labourers or inefficiency of the Customs as well as the security staff. It is pointed out that the only evidence which has come on record is in the shape of some documents which have been received by the Investigation Officer from Dubai on Fax, authenticity whereof is yet to be determined which could not be done for the reason best known to the police. It is urged with vehemence that the petitioner has been involved as a result of dishonest investigation conducted by the Investigating Officer who involved the petitioner in connivance with the co-accused Shahnawaz against whom sufficient incriminating material has come on record but amazingly he has placed as co-accused in Column No,2 in the report submitted under section 173, Cr.P.C., therefore, on the basis of biased investigation the concession of bail cannot be withheld as the matter squarely falls within the domain of further inquiry. It is contended that in view of the chequered history and circumstances, no case under sections 302, 324, 436 and 427, P.P.C. Is made out against the petitioner who cannot be held responsible for the negligence and careless of the labourers and at the best the alleged offence falls under section 319, P.P.C. Which is punishable with payment of Diyat and by no stretch of imagination the petitioner can be held responsible for the offence of Qatl-e-Amd or Qatl-e- Khata. It is also argued that the nature of the tragedy and the magnitude of the loss of human life and property by itself are no ground on the basis whereof the petitioner could be deprived from the concession of bail.
4. Mr. Muhammad Sharif Chohan, learned Advocate Supreme Court appeared on behalf of Muhammad Arshad (petitioner in CriminalPetition No, 366-L of 2003)and mainly adopted the arguments of Mr. Wasim Sajjad, learned Senior Advocate Supreme Court with the further submission that the petitioner being a little fly in the organization could not have been held responsible for the tragic incident being unconcerned and moreso, no incriminating material whatsoever isavailable on record inferring that a prima facie case is made out against the petitioner.
5. Ms. Afshan Ghazanfar, learned Assistant Advocate General appeared on behalf of State and strenuously controverted the view point as canvassed by the learned counsel on behalf of petitioners and highlighted the gravity of offence which resulted into the tragic death of 16 persons and heavy loss of the property. Learned Assistant Advocate General also referred to two documents received on FAX from Dubai indicating that the petitioner was responsible for the import of the contraband items. Learned Assistant Advocate General, however, conceded frankly that no other incriminating material could be collected so far against the petitioner. She also opposed the bail application of Muhammad Arshad (petitioner) being clearing agent and according to her, he was responsible for sealing and desealing of the container as such cannot be absolved from his responsibility. It is worth mentioning that the Investigating Officer remained present and states in an unequivocal manner that no other incriminating material except two documents received on FAX from Dubai could be collected against the petitioner which could not be verified but correspondence with the Ministry of Foreign Affairs to get the same verified was made which is yet to be responded by the Ministry concerned. It is not understandable as to how the challan has been submitted without getting the verification of said documents.
6. Mr. S. Akmal Hussain, Inspector Customs, appeared on behalf of Customs Authorities and conceded frankly that no evidence could be collected against the petitioners and also admitted that it was due to the dishonest and inefficient investigation conducted by the police and Customs Officers.
7. We have carefully examined the respective contentions as adduced on behalf of the petitioners and for State in the light of relevant provisions of law and record of the case. We have also thrashed out the entire evidence collected so far. We have also perused the order of learned Additional Sessions Judge as well as order impugned. After having gone through the entire record we are of the view that sufficient incriminating material connecting the petitioners with the commission of alleged offence is badly lacking on the basis whereof it could be inferred that prima facie a case is made out against them. There is no denying the fact that the statements of 55 witnesses have been recorded but only the A large quantity of witnesses would not render any assistance to the case of petitioner. The basic question would be as to what incriminating evidence has been collected as a result of investigation? The answer would be that investigation has been conducted in a haphazard manner and no evidence worth the name could be collected against the petitioners inferring that a prima facie case is made out against them. In so far as the documents received from Dubai on Fax are concerned nobody knows by whom it was sent and how it was considered as prime incriminating evidence without getting it verified from the quarter concerned. The authenticity and genuineness of the said documents is yet to be ascertained and till its determination the concession of bail could not have been withheld in absence of any other incriminating material. Learned Assistant Advocate General and the Investigating Officer were asked time and again pointedly to mention any incriminating material connecting the petitioners with the commission of alleged offence but they failed miserably to do the needful. Learned Assistant Advocate-General has conceded frankly that besides the above mentioned documents received from Dubai on FAX, no other incriminating material could be collected against the petitioners. It is worth mentioning that shecould not answer various questions which is indicative of her unprepardness in such an important matter. The Investigating Officer should have got checked the authenticity and genuineness of the documents received on FAX from Dubai prior to submission of challan. In our considered view instead of routine correspondence at least Deputy Inspector-General of Police or Senior Superintendent of Police concerned should have contacted the Ministry of Foreign Affairs in person for doing the needful as the said documents are the only pieces of evidence around which the entire prosecution case revolves. It is regretted to observe that the Senior Police Officers had not taken any interest and ignored the nature of the tragic incident and the magnitude of the loss of precious human life and property. Had they been interested personally and supervised the investigation vigilantly the position would have been different. The police steeped in the tradition of self, aggrandizement has shown increasingly less imagination and willingness to deal with even the smallest of its responsibility which cannot be appreciated. The Deputy Inspector-General of Police and Senior Superintendent of Police had acted quite arbitrarily inasmuch as before submission of challan they did not care to have gone through the record of the case with such prudence as their office demanded of them. They appear to have failed to apply their conscious mind to the facts of the case and the evidence gathered and instead towed, the line so ill-foundedly and unscrupulously drawn by the Investigating Officer which depicts their careless, callous and indifferent approach towards the public duty.
8. As mentioned herein above the investigation has been conducted in a haphazard manner which shows the inefficiency of the Investigating Officer. The Investigating Officer could not explain that in spite of sufficient incriminating material why co-accused Shahnawaz who had played a pivotal role was placed in Column No,2 of challan and why he was not arrested after rejection of his bail application from the HighCourt, which smacks of mala fides and dishonest investigation, inefficiency and poor knowledge of the basic law for which a thorough probe should be made that how Shahnawaz, who should have been the main accused has been left off which aspect of the matter went unnoticed and no action whatsoever was taken by the Deputy Inspector-General and the Senior Superintendent of Police which indicates the poor supervision, inefficiency and lack of vigilance which aspect of the matter should be, taken care of by the Inspector-General of Police. It is worth mentioning that the concerned Investigating Officer was absolutely blank regarding the duties and functions of the clearing agent, importer and relevant laws on the subject. How, he could be expected to investigate the matter thoroughly. It was for the Senior Superintendent of Police and the Deputy Inspector-General to depute some skillful Officer having legal known how and experience to deal with such sort of cases which has not been done which shows lack of their interest. This case is a classic example of lack of efficiency, supervision, vigilance and coordination.
9. Be as it may, in our considered view the matter falls within the domain of further inquiry as no incriminating material could be collected so far on the basis whereof it could be inferred that a prima facie case is made out against the petitioners. We are conscious of the gravity of the B incident and tragic loss of precious human life but the concession of bail cannot be withheld as no iota of evidence has come on record against the petitioners. In this regard we are fortified by the dictum laid in cases titled Nazir v. State 1978 SCM R 285, Falak Sher v. State 1979 SCM R 103, Arbab Ali v. Khamiso 1985 SCM R 195, Ibrahim v. Hayat Gul 1985 SCM R 382, Najeeb Gul v. Khalid Khan 1989 SCM R 899, Muhammad Sadiq v. Sadiq PLD 1985 SC 182, Muhammad Amir v. State 1985, SCMR 565.
10. There is no cavil with the proposition that reasonableness of grounds has to be shown by the prosecution by displaying its cards to the Court as it may possess or is expected to possess as demonstratory evidence in the case both direct and circumstantial. While elaborating the said proposition it was held by this Court in case titled Manzoor and 4 others v. State PLD 1972 SC 81 as follows:--- "The High Court did not follow correct principles in refusing bail. It is obviously not correct to depend on the ipse dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. Bail in non-bailable cases is a mater within the discretion of the Courts, which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with thesame is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence. It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exit to disclose their 'complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him., but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
11. The case in hand has also been examined in the light of criterion as mentioned in the above cited cases. No convincing evidence showing the complicity of the petitioners by now could be collected. We are conscious of the fact that "this Court is reluctant to interfere in such-like maters where exercise of discretion is concerned but in exceptional cases where the interest of justice demands and it is evident that either a provision of law has been misconstrued or wrongly applied or the decision is contrary to the principles laid down by this Court as well as those governing the safe administration of criminal justice then k is the Constitutional obligation of this Court to set the matter right". Bashiran Bibi v. Nasar Ahmad Khan PLD 1990 SC 83, Pakistan Oil Mills v. Sales Tax Officer 1969 SCM R 175, Mst. Zaro v. State 1974 SCM R 11, Abdul Haq v. State 1979 SCM R 254.
12. In sequel to the above mentioned discussion the above petitions are converted into appeal and allowed. The petitioners namely Muhammad Amin and Muhammad Arshad are accordingly released on bail subject to furnishing surety of Rs,2,00,000 each (rupees two lacs each only) and P.R. Of the same amount to the satisfaction of the learned trial Court.
13. The observations made herein above are tentative in nature and shall not affect the merits of the case. A copy of this order be sent to the Inspector-General of Police and Collector of Customs for taking appropriate action against the delinquents who failed to collect sufficient incriminating material and failed in discharging their duties effectively and efficiently under intimation to the Registrar of this Court within a period of thirty days.