Sheikh SALEEM AHMED and another vs THE STATE
This matter arises from criminal miscellaneous petitions filed by Sheikh Saleem Ahmad and Sheikh Rehan Ahmad seeking post-arrest bail in a case registered under the Customs Act, 1969, relating to the clearance of smuggled auto parts. The core legal question is whether the petitioners are entitled to post-arrest bail when the principal accused, who deposited a substantial amount of customs duty and blamed the petitioners, has already been granted bail, and where the charges do not fall within the prohibitory clause of the Code of Criminal Procedure, 1898. The Lahore High Court held that the case of the petitioners falls within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure, 1898, particularly given that the offences do not attract the prohibitory clause, the principal accused has been admitted to bail, and questions remain regarding the involvement of the licensed agency whose permits were allegedly used. The court laid down the principle that post-arrest bail should be granted when the tentative assessment of the record reveals grounds for further inquiry and the co-accused facing similar or primary allegations has already secured bail.
- Whether post-arrest bail can be granted under Section 497(2) of the Code of Criminal Procedure, 1898 when the offences charged do not fall within the prohibitory clause?
- Does the grant of bail to the principal accused provide a ground for granting bail to co-accused employees under the rule of consistency?
- Whether a case calls for further inquiry when the primary allegations require probe regarding the misuse of permits and the attribution of misappropriation?
- Section 156(1), Customs Act 1969
- Section 81, Customs Act 1969
- Section 82, Customs Act 1969
- Section 89, Customs Act 1969
- Section 178, Customs Act 1969
- Section 2(S), Customs Act 1969
- Section 16, Customs Act 1969
- Section 497(1), Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' M. BILAL KHAN, J.--- Sheikh Saleem Ahmad and Sheikh Rehan Ahmad the petitioners, by filing Criminal Miscellaneous Nos.6824/B and 7341/B of 2007, respectively, seek post-arrest bail in case F.I.R. No,5, dated 6-4-2007, registered with Police Station I and P Branch, Directorate General Intelligence and Investigation (Customs, Excise and Sales Tax), Faisalabad for offences under sections 156(1), 81, 82, 89 and 178 of the Customs Act, 1969, at the instance of Muhammad Anwar, Intelligence Officer, Customs Intelligence, Faisalabad.
2. Precisely, the allegation against the petitioners, according to the F.I.R., was that they being Clearing. Agents indulged in clearing smuggled auto parts in violation of the provisions of sections 2(S), 16 of the Customs Act, 1969.
3. The petitioners' plea for post-arrest bail had been turned down by the learned Special Judge, Customs, Taxation and Anti-Smuggling, Lahore vide order, dated 17-9-2007. 'Hence, the instant petition.
4. After hearing the learned counsel for both the sides and going through the record, it has been observed that the principal accused in the case, namely, Muhammad Hussain, who is the importer of the consignment in question has been allowed bail by the learned Special Judge (Customs), Lahore vide order dated 30-4-2007. The main consideration, which prevailed with the learned Special Judge in granting bail to said Muhammad Hussain was that he had deposited an amount of Rs,15,00,000 in favour of Collector Customs, Faisalabad on account of customs duty and has also undertaken that if any further amount of duty is assessed against him, he would pay the same. The other plea of Muhammad Hussain that he had paid the entire customs duty to Sheikh Saleem Ahmad Petitioner, who in connivance with other staff including Sheikh Rehan Ahmad (petitioner in Criminal Miscellaneous No,7341/B of 2007) had misappropriated the said amount also appealed to the learned trial Court. The contention of Sheikh Saleem Ahmad (petitioner in Criminal Miscellaneous No,6824/B of 2007) that he was only an employee of the principal accused, namely, Muhammad Hussain and that after the whole matter had been exposed, Muhammad Hussain had paid partial amount of customs duty and in order to save his own skin had laid the entire blame on him, is an assertion which prima facie does make some sense and cannot be brushed aside lightly.
Another important point which needs further probe is that the customs authorities do not deny that Sheikh Saleem Ahmad and Sheikh Rehan Ahmad (petitioners) are not registered clearing agents.
Their stance, however, is that the petitioners had used permits of Messer S. Ahsan Ali and Brothers, Customs House Agent, Karachi. Surprisingly no one from Messer S. Ahsan Ali Brothers has been arrayed as an accused. Not only that but also there is nothing on record to indicate that anybody from the said Agency had been questioned during investigation. The offences with which the petitioners have been charged for the time being do not attract the prohibitory clause of section 497(1), Cr.P.C. A substantial portion of customs duty stands paid to the Department by Muhammad Hussain co-accused. It is yet to be seen as to what weight can be given to the statement of Muhammad Hussain co-accused, in which he incriminates the present petitioners, who are his co- accused.
5. The cumulative effect of what has been said above is that case of the petitioners calls for further inquiry within the meanings of subsection (2) of section 497, Cr.P.C. Accordingly, by allowing these petitioners, I admit the petitioners to post-arrest bail subject to their furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac) each with one surety each in the like amount to the satisfaction of the learned trial Court.