1. GHULAM NABI SOOMRO, J.---This Criminal Bail Application under sections 497, 498, 498-A & 561-A, Cr.P.C. And under Article 199 of the Constitution, has been filed by the applicant M. Lqbal Solangi, for grant of bail in Reference No,10 of 2001, pending trial before the learned Accountability Court No,II, Sindh at Karachi. The application numbered as above was initially filed for grant of. Bail before arrest, of which notice was ordered to the Deputy Prosecutor General NAB. On 5-9-2003, the learned counsel for the applicant informed that the applicant was arrested and was in custody. He therefore, requested that the application be treated as one for grant of post-arrest bail. The trial Court being not vested with the powers to grant bail, such request was allowed with the consent of learned DPGA. The application is, therefore, treated as prayed. The facts briefly stated, leading to the filing of the reference by the Chairman, NAB under section 18(a) of the NAB Ordinance, dated 11-5-2001, are that in the year 1997-98 a huge evasion of Excise duty and other levies in the import of wine from Messrs Murree Burewery Limited, Rawalpindi were detected in the Excise and Taxation Department, Government of Sindh. The investigation was ordered, in consequence of which the accused Agha Wazeer Abbas was arrested on 12-2-2001. The investigation further revealed that the other co-accused (official of the Excise Department) and other beneficiaries/associates, through conspiracy and connivance, had made use of 33 fake/forged permits, for import of wine from Messrs Murree Burewery Limited, Rawalpindi and thus caused a total loss of Rs,66 Millions to the public exchequer, which allegedly was shared by all of them. The applicant Muhammad Iqbal Solangi and three others namely Abdul Majeed Pathan, Niaz Balouch and Agha Wazeer Abbas are the officials of Excise Department, whereas 5/6 others are stated to be beneficiaries and associates in the alleged offence. The reference further discloses that Muhammad Ismail Rahu, the then Minister of the Department, also received a lions share in the loot, against whom a supplementary reference has been filed.
2. The applicant, who at the relevant time is stated to be Director General, Excise and Taxation Department, is alleged to have received a three Million rupees share, from illegal gain. The applicant was sent up for trial in absentia. His absence from the Court proceedings resulted in his conviction under section 31-A of the NAB Ordinance, 1999 with sentence of three, years. R.I. He, therefore, filed Criminal Accountability Appeal No,5 of 2003 which appeal was, by order dated 12-8- 2003, admitted to regular hearing and the applicant was allowed bail pending decision on his appeal. It is contended on behalf of the applicant that the applicant is a senior official in the Government of Sindh and has also served as Deputy Education Advisor in the Department of Education of Federal Government. Thai, he never absconded, but in fact, while being in his village on causal leave for two months, due to a dispute, he remained confined, for sometime, in his house in village Mureed Lakhiar in District Dadu. The situation there, having turned from bad to worse, he had to leave the village and run for life to abroad. The applicant came back to Pakistan voluntarily, on coming to know that such dispute has settled and charges against him were found, to be incorrect.
3. That, it was only upon his return, that he came to know about filing of the reference by NAB. It was next argued that the co-accused Muhammad Ismail Rahu. Minister of Excise and Taxation Department (Accused No,1) convicted and sentenced to 7 years R.I. With fine of Rs,Two Crore, by the learned trial Court, was on appeal before this Court acquitted in the said reference, which judgment is reported in SBLR 2003 Sindh 1119. It was urged that the case of the applicant was at the par with that of Muhammad Ismail Rahu. It was also contended that the co-accused Kaka Kishan Chand, Raj Kumar and Asher John, declared as absconders in the initial stage, have also been acquitted in the case. It was further contended that the approval of Director General was not required in issuing the permits for import of liquor. It was submitted that it was the function of Excise and Taxation officials and not of the D.G. Himself. Reliance was placed upon:--
(1) Muhammad Ibrahim v. Hayat Gul and others 1995 SCMR 382.
(2) State v. Malik Mukhtar Ahmed Awan 1991 SCM R 322.
(3) Murad Khan v. Fozia Subhan and others PLD 1983 SC 82.
(4) Jamaluddin v. The State 1985 SCM R 1949.
(5) Miran Bux v. The State PLD 1989 SC 347. On the order hand Mr. M. Anwar Tariq, learned DPGA representing the NAB while opposing the bail plea, argued that the appellant had absconded and due to his absconsion he was sentenced, which fact by itself shows that his absconsion was deliberate. He further argued that all the accused in the reference had conspired together to earn money by issuing fake permits.
4. Admittedly the applicant had voluntarily surrendered before law and he was allowed bail in his appeal against the sentence awarded to him under section 31-A of the NAB Ordinance, subject to his appearance before the trial Court. The question that the period for which he remained absent from the Court was a period of deliberate absence amounting to absconsion punishable with sentence, is subjudice in the applicant's Appeal No,5 of 2003. The learned DPGA has, however, not disclosed the pieces of evidence involving the applicant in the alleged offence. Where the important allegation in the case appears to be the preparation of the fake permits, their originators/Architects have yet to be traced out, as four accused including M. Ismail Rahu, the Minister, have been fully exonerated of the charges and acquitted. All the above circumstances combined together, if analyzed in the light of the case law referred above, make the case of the applicant one of further enquiry as contemplated under subsection
(2) of section 497, Cr.P.C. The applicant is, therefore, granted bail subject to his furnishing two solvent sureties in the sum of Rs,15,00,000 (Rupees fifteen lacs only) each and PR bond in the like amount to the satisfaction of the Nazir of this Court. Above are the reasons for short order dated 18-9-2003 whereby Criminal Bail No,1009 of 2003 was granted.