MUHAMMAD NAWAZ vs THE STATE through. Chairman, NAB, Islamabad and another

' MUHAMMAD NAWAZ ABBASI, J.---These five connected petitions involving common questions of law and facts, have been directed against the consolidated judgment, dated 28-8-2007 passed by a learned Division Bench of the High Court of Sindh, Karachi, whereby five constitutional petitions filed by the petitioner in the High Court seeking grant of bail in five separate cases registered against him under section 32(1) of the Customs Act, 1969 punishable under clauses (14) and (82) of subsection (1) of section 156 of ibid. Act, were dismissed. We intend to dispose of all these petitions together through this single judgment.

2. The facts in small compass in all the five cases are that petitioner while posted as Collector of Customs at Quetta before 1992 approved the claim of rebates payable on the export of specified goods on the basis of shipping documents, duly verified by the Officer of Customs posted at various Customs Stations in the Province of Balochistan. It is stated that Directorate of Inspection and Training, Karachi having received credible information about the fake rebate claims initiated the proceedings under the provisions of Customs Act, 1969 against the exporters namely Imtiaz Ali Taji, Haroon Rashid and Abdul Majid Askani as well as the concerned staff of Gawadar and Queeta Customs Houses. Precisely, the case of prosecution was that the exporters in connivance with the customs officials manipulating the shipping bills, prepared false rebate claims showing. Export of the goods of huge. Value. The investigating agency on completion of the investigation, submitted challan in all the cases in the Court of Special Judge (Customs) Karachi in which the petitioner was also arrayed as one of the accused along with the subordinate customs officials including the concerned Inspector, Deputy Superintendent, Superintendent and Assistant Collector of Customs, posted at Gawadar. The allegation against customs officials including the petitioner was that they in collaboration with the exporters completed the process of export of polyester jacquard fabric in the fake transaction of export and were party to the alleged fraud. The payment of bogus rebate claims was sanctioned by the petitioner and pending investigation of the case payments were also made to the exporter in departure to the instructions contained in the letter, dated 2-1-1992 issued by the Directorate of Customs.

3. The cases against the petitioner were pending in trial before the Special Judge (Customs and Taxation) Karachi when on promulgation of NAB Ordinance, 1999, the same were transferred to the Accountability Court established under the ibid Ordinance at Karachi. The petitioner while on bail went abroad and subsequently on cancellation of bail, he was declared absconder. The petitioner on arrest was declined bail on merits and later, also on medical ground vide order, dated 28-9- 2007 therefore, he has filed the instant petitions for grant of bail.

4. Learned counsel for the petitioner has contended that in view of the nature of allegation and the evidence collected by the prosecution, the case against the petitioner would squarely fall within the ambit of subsection (2) of section 497, Cr.P.C. And he would be entitled to the concession of bail as of right. The learned counsel added that the petitioner is also entitled to the statutory benefit provided under section 7 of the National Reconciliation Ordinance, 2007, and in view thereof, the proceedings before the trial Court cannot continue. Learned counsel explaining the alleged absconsion of the petitioner during the trial submitted that in consequence to the quashment of the proceedings in the criminal cases in question against the petitioner by the High Court of Sindh at Karachi vide order, dated 27-1-1994 passed in Criminal Miscellaneous No,1195 of 1993, he proceeded abroad and while he was still at abroad, the above order of the High Court was set aside by this Court in Criminal Appeal Nos.103 to 107 of 1994, filed by the State and case was remanded to the trial Court for decision on merits, therefore, the alleged ascension of the petitioner in these circumstances, was only of technical nature which was not a valid ground for refusal of bail. The learned counsel further argued that in any case, the petitioner was also entitled to the concession of bail on medical ground which was not properly considered.

5. The perusal of the record with the help of learned counsel for the petitioner would show that the High Court without properly appreciating the plea taken on behalf of the petitioner for grant of bail to him in the light of factual position, declined him the concession of bail on merits as well as on medical ground in a perfunctory manner. The liberty of a person is very precious and the mandate of the Constitution and law is that the liberty of the people must be respected and must not be curtailed through misuse of process of law in the light of principle that the law cannot be stretched in favour of proposition to withhold concession of bail as of punishment for indefinite period without trial. The expeditious trial is right of an accused and unnecessary delay in conclusion of trial is denial of access to justice. The charge against the petitioner is that he approved and sanctioned the payment of fake claims of rebate and in view of the facts of the cases, the question whether petitioner being privy to the crime has knowingly sanctioned the rebate claims in the fake transaction of export or he while depending on his subordinate, approved the claims in good faith in accordance with the rules, requires determination in the light of the documentary and oral evidence yet to be brought on record. It is, therefore, difficult to express opinion regard the guilt of the petitioner without scrutiny of the entire record and question whether he being on league with his co-accused in the transactions was also one of the beneficiary, cannot be answered at this stage. Be that as it may, the relevant record and the documentary evidence collected during, the investigation is with the prosecution, therefore, there is no question of tampering with the evidence or to influence the official witnesses. We may also point to that in the light of the medical report, the petitioner had a strong case for grant of bail on medical ground.

6. Be that as it may, in the facts and circumstances of the case, the involvement of the petitioner in the transaction is certainly a question of further inquiry and in view of the principle of governing the grant of bail in non-bailable cases, he would be entitled to the concession of bail on merits as well as on medical ground.

7. In the light of foregoing reason, we convert these petitions into appeals, set aside the impugned judgment of the High Court and grant of bail to the petitioner in all the five cases. The interim bail granted to him vide order, dated 19-12-2007 which is read as under is confirmed:--- "After hearing Mr. M. Ilyas Siddiqui, learned counsel for the petitioner and Dr. Danishwar Malik, learned Prosecutor General NAB at length, petitioner is admitted to interim bail subject to furnishing surety in the sum of Rs,5,00,000 (Rupees five lacs) with P.R. Bonds to the satisfaction of the trial Court."