ARSHAD BUTT Versus THE STATE

ORDER

This order shall dispose of Criminal Miscellaneous No.2085-B of 2003 filed by Arshad Butt, Criminal Miscellaneous No.2238-B of 2003 filed by Muhammad Amin alias Irfan, Criminal Miscellaneous No.2068-B of 2003 filed by Muhammad Yaqoob and Criminal Miscellaneous No.2086-B of 2003 filed by Khalil Ahmed as they arise out of the same case registered vide F.I.R. No.54 of 2003 dated 4-2-2003, Police Station, Sambrial under sections 302, 324, 436, 427, 109, P.P.C. and section 4/5 of Explosive Substances Act.

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 Samabrial, 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 fireworks, 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 fireworks 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.

3. Learned counsel for the petitioner Muhammad Amin alias Irfan (Criminal Miscellaneous No.2238-B of 2003) pressed this bail petition on the following grounds:--

(i) That petitioner is merely an importer, who imported plastic toy rings and no evidence was collected to indicate that the petitioner has imported fire works or any explosives.

(ii) That the occurrence took place on account of negligence on the part of the custom officials and no mens rea is attracted in so far as petitioner is concerned.

(iii) That no offence under section 302, P.P.C. is made out and at worst it would be a case under section 319 or 322, P.P.C. for which the petitioners could not be kept in jail.

(iv) That the real culprits have been let off and petitioner has been involved for mala fide reasons.

3. Learned counsel for the petitioners Khalil Ahmed (Criminal Miscellaneous No.2086-B of 2003) and Arshad Butt (Criminal Miscellaneous No.2085-B of 2003) submitted as under:--

(i) That Khalil Ahmed petitioner is merely an employee of Lucky Star Clearing Agency, he was to have the containers cleared and there was no criminal intent so far as he is concerned.

(ii) That there is no incriminating material against Khalil Ahmed and he was declared innocent during investigation.

(iii) That Arshad Butt was not named in the F.I.R., his only function was that of a clearing agent and is neither involved in the occurrence nor he made any false declaration, that the actual clearing agent namely Shehbaz Noor was declared innocent during investigation and petitioner cannot be saddled with any criminal liability.

4. Learned counsel for Muhammad Yaqoob (Criminal Miscellaneous No.2086-B of 2003) sought bail on the following grounds:--

(i) That petitioner is a retired Army Subedar.

He is only an employee of Messrs Phoenix Armour Company and was posted at Samabrial to seal and deseal the containers.

(ii) That the Phoenix/Brinks Security Agency for which petitioner works had ail agreement with the Central Board of Revenue to seal and deseal the containers and Railway wagons carrying the imported goods destined for dry ports or other countries and he carried out his duty of desealing the containers and is not remotely connected to the occurrence.

(iii) That in terms of the afore-referred agreement, the duty of the petitioner's company was as under:--

"The party of the second part shall be responsible only for putting the seal on each and every container and or Railway wagon carrying the goods for any destination towards upcountry dry port or in transit to Afghanistan or any other country and will also deseal the same at any such destination but in no way shall be made responsible for the contents of the container and / or the Railway wagon.

5. Learned Additional Advocate-General assisted by Mr. Abdul Salam Sindhu, Advocate for State submitted that it is a serious case, that all the petitioners are vicariously involved, that 16 persons lost their lives, that the question what offences were attracted would ultimately be determined by the trial Court and any exercise by this Court at this stage may prejudice the trial and that challan having been submitted in the Court and the trial is to commence shortly.

6. Learned counsel Khan Muhammad Varik, Advocate appeared on Court call for the Custom Department explained that the clearing agents are fully liable for the offence alleged as in total violation of the relevant law contra banned fireworks were imported which led to the explosion. He added that the clearing agents cannot claim exoneration for the import of the goods in question in view of section 209 of the Customs Act.

7. I have heard learned counsel for the parties and have perused the record.

8. Documentary proof has been collected during investigation, that it was Muhammad Amin alias Irfan Memon resident of Karachi who got the container booked which carried a huge quantity of fireworks knowing fully well that those were banned items. There is also material to suggest that Khalil Ahmed, petitioner who was working for Shehbaz Noor Clearing Agent and had been asked by the latter to have his container cleared carrying cosmetic items alongwith the container which Muhammad Amin alias Irfan had booked. He procured a farm from Arshad Butt co-accused of Khaber Enterprises (Clearing Agents), dishonestly mentioning in the said farm that the container contained cosmetic goods, got 'the container desealed through Muhammad Yaqoob accused/petitioner whose duty it was to deseal the container after a requisite verification and in the presence of the clearing agent whose farm had been filed for clearance. Khalil petitioner prima facie knew that the goods in question were banned item, he, therefore, did not use the farms of the company of which he was the clearing agent (Lucky Star) and instead in connivance with co-accused Arshad Butt used the farms of Khaber Enterprises. Muhammad Yaqoob petitioner, the Supervisor of Phoenix/Brinks Company knew that Khalil Ahmed did not represent Khaber Enterprises desealed the container at his asking and on the relevant register obtained his signatures showing him to be an employee of the Khaber Enterprises as the printed forms of the said firm had been fraudulently used for clearance of the goods. The afore-referred conduct of the accused ex facie shows that by their acts and omissions they got cleared a container had it desealed which under the law merited immediate confiscation and action against the importers. If there was correct declaration of the goods in the requisite documents that those were fireworks, the container could not have been imported. Even at the dry port if the clearing agents, the concerned officials and the security supervisor had been honest to their duty, the entire container and the fireworks would have been confiscated, the security arrangements would have been better and the tragedy could have been averted. In the afore referred circumstances, there are reasonable grounds to believe that the petitioners are connected with the alleged offence. I see no merit in all the petitions which are dismissed.

M.B.A./A-798/L Bail refused.