HAROON RASHID Versus STATE
ORDER
Since both the above bail applications have arisen out of the same order, they are being disposed of together.
2. Applicant Haroon Rashid is the Proprietor of Messrs Charley Enterprises, while applicant Qurban Khan is the Proprietor of Messrs Concord Export House. It is alleged that these applicants with the assistance and connivance of co-accused Imtiaz Ali Taj, Chief Executive of Messrs Charley Enterprises, Abdul Majid Askani, Clearing Forwarding and Shipping Agent, Mumtaz Ali Changezi, Assistant Collector, Customs, Shahid Hussain, Superintendent Customs, Ali Ahmad Baloch, Deputy Superintendent, Customs, and Khalid Aziz, Inspector, Customs made a fictitious export of polyster jacquard fabrics and glass marbles to Dubai from Gawadur Port with intention to obtain customs rebate and the exporters in fact collected cheques valued at Rs. thirteen crores towards this fraudulent deal. Separate reports were registered against the above accused persons. The applicants who were arrested during the course of investigation applied for bail before learned Special Judge (Customs and Taxation), Karachi, but without success. They have now applied for bail before this Court by filing separate applications under section 185-F of the Customs Act, 1969, read with section 497, Cr.P.C.
3. I have heard Mr. A.Q. Halepota, learned counsel for applicants and Mr. Ikram Ahmad Ansari, learned DA.-G. for State. The latter has opposed the bail applications.
4. The bail applications in respect of co-accused Imtiaz Ali Tai, Chief Executive of Messrs Charley Enterprises, were heard and dismissed by me by order, dated 13-4-1992 while dismissing the said bail applications the following observations were made by me:--
"Mr. Ikram Ahmad Ansari, learned DA: G. for State while opposing the bail application has contended that the applicant and his associates appear to have unquenchable thirst for money and they for the fulfilment of that object, oblivious of the consequences, developed seemingly innocent but in reality a mechanism, a devise, to deprive the Government Exchequer to the tune of crores of rupees and in this way made an attempt to defeat the aim of the Government of constructing a developing country with a heavy foreign debt and untapped local resources. There is good deal of force in this observation. We live in the age of wonders in inventions and blunders in morals. These inventions are not limited to the field of science and technology. They have compassed the field of commerce and trade also. They cover financial fields also. New devices are invented to cheat the Government by the men of commerce and trade. The smugglers/criminals employ the acme of human ingenuity in a manner, which the national network of preventive squads have failed to grapple must less to stop. The situation obviously calls for the adoption of some extraordinary measures."
5. It is, however, the case of applicants that bail applications in respect of co-accused Imtiaz Ali Taj were rejected as this Court was not informed about the pendency of Constitution Petitions Nos.27 and 28 of 1992 against complainant Muhammad Saleem Shah and other officials of Pakistan Customs, in High Court of Balochistan. It was also submitted that the landing certificates issued by Department of Imports and Exports, Government of Dubai, were not produced before this Court in bail applications filed on behalf of co-accused Imtiaz Ali Taj. In short it is the case of the applicants that on the basis of material available on record they are entitled to the grant of bail, specially when the offence with which they are charged does not fall within the prohibitory clause of section 497, Cr.P.C.
6. Mr. A.Q. Halepota, learned counsel for applicants has contended with force that the Gazette Notification No.SRO-723(1)/84, dated 19-8-1984, issued by Central Board of Revenue does not recognise the Principal Appraiser as an officer of Customs under section 3 of the Customs Act, 1969, and as such, the registration of F.I.R., by him and all actions taken on the basis thereof including the investigation of cases are unlawful. The learned counsel for applicants should have known that a complete answer to this contention is provided by the Supreme Court in the case of Noorul Islam v. The State reported in 1986 S C M R 1836, wherein it was observed:--
"As regards the first contention, suffice it to say that the proposition of law is well-settled that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court. The fact that the learned trial Court had the requisite jurisdiction in the matter was not disputed by the learned counsel."
7. Coming now to the production of landing certificates issued by the Department of Imports and Exports, Government of Dubai, it may be observed that these documents were not placed on record when the bail applications in respect of co-accused Imtiaz Ali Taj, Chief Executive of Messrs Charley Enterprises, of which applicant Haroon Rashid is the proprietor, were filed. The possibility that these certificates were managed afterwards, therefore, cannot be ruled out. This question was also considered by learned Special Judge who disposed of the same in the following words:--
"The Investigating Officer has gone to Dubai and has brought copies of three Bill of Entries which do not indicate that any Polyester Jacquard Fabrics was exported from Gawadur. These Bills of Entries indicates that only marble glass and garments were exported from Karachi to Dubai and not from Gawadur to Dubai. These Bill of Entries viz. No.76164, 78306 and 77750 produced by the prosecution are the same which are mentioned in the three Landing Certificates dated 28-6-1991, 20-7-1991 and 31-7-1991, produced by the defence obtained from the Government of Dubai. These Landing Certificates show that the goods mentioned in these certificates were exported from Gawadur to Dubai through launches Al-Amini and Al-Anwari while the photo copies of these Bill of Entries produced by the prosecution clearly falsify the Landing Certificates produced by the defence in respect of journey performed by the two launches and the quantity of the goods mentioned in the said certificates. As per Bill of Entry 76164 mentioned in Landing Certificate dated 28-6-1991, 745 bales/cases (733 bales and 12 cases) are alleged to be carried by Al-?Amini from Gawadur to Dubai while & Bill of Entry produced by the prosecution shows that only marble/garment of some less quantity were shipped from Karachi to Dubai by this launch. Similarly Landing Certificate, dated 20-7-1991 showing Bill of Entry No.77750 indicates that 811 bales/cases containing polyester fabrics dyed (jacquard) self-?designed/glass marbles/cloth were shipped from Gawadur to Dubai by Al-Amini launch. This Bill of Landing is falsified regarding the goods shipped because the Bill of Entry No.77750 produced by the prosecution shows that glass marble and cloth was shipped from Karachi to Dubai and not from Gawadur to Dubai. Likewise Landing Certificate dated 31-7-1991 showing Bill of Entry No.78306 indicates that 1535 bales and 16 cases containing Polyester Fabrics Dyed (Jacquard) self-designed and 16,00,000 pieces of glass marble in 16 cases was sent from Gawadur to Dubai by Al-Anwari. This Bill of Landing is also falsified by the Bill of Entry No.78306 produced by the prosecution which indicates that polyester cloth and glass marble were shipped from Karachi to Dubai. Even the quantity of goods shipped differs in the Landing Certificate produced by the defence and the Bill of Entry produced by the prosecution. In addition the defence has not provided any document/purchase voucher to show as to from where such a huge quantity of Polyester Jacquard Fabrics (1,53,00,000 metre) was purchased by them at Karachi for shipment to Dubai. Even the transportation of this Polyester Jacquard Fabrics by trucks from Karachi to Gawadur as alleged by the Exporter has been falsified by the Excise and Taxation Department, Quetta and Lasbella vide their letters Nos. MV.EXC, dated 27-2-1992 and 1792/MV/62, dated 4-3-1992 respectively."
I fully endorse the view taken by him.
`8. It may also be added that Gawadur Port has not yet started any activities on cargo handling or berthing the vessels, which is evident from Office Memorandum No.GFH-12(16)/187-132, dated 18th April, 1992, issued by Ministry of Communications (Ports and Shipping Wing), reproduced below:--
The undersigned is directed to refer to our conversation on telephone on 12th April, 1992 and your letter to Mr. Rafiqullah Khan, Assistant Director Inspection No.4098 of 1991-92, dated 13th April, 1992, I would like to inform you that Gawadur Port construction is not complete and the Port has not yet started any activities on cargo handling or berthing the boats or any other vessels or crafts. It is expected that Gawadur Port may start its operations in month of July, 1992 for which a proper notification will be issued.
(2) In this context, loading of country crafts Al-Ameeni and Al-Anwary in the Port premises is out of question.
(3) I have also confirmed from Gawadur Port Project Staff and to say that they are unaware of any such activity during their stay at Gawadur.
(4) I hope this would clarify your query and would help you to attend the case in better way."
9. The evidence collected by the Investigating Officer further reveals that the documents regarding the transportation of very huge quantity of polyester jacquard fabric were procured by the Customs Officials involved in this case. Thus, there is prima facie evidence on record connecting both the applicants, with this crime and they are in fact the main beneficiaries.
10. Much capital was sought to be made out from the fact of filing of Constitutional petitions before the registration of these cases against the applicants and others and it was submitted that the applicants have fallen victims of the complainant. This argument in my view, is clearly misconceived for the simple reason that one of the accused in this case is Assistant Collector, Customs and he could not have been involved only because of filing of Constitutional petitions.
11. For the above reasons and the reasons recorded by me while dismissing Special Criminal Bail Applications Nos. 7 of 1992 and 8 of 1992, I find no merits in both these bail applications, which are accordingly dismissed.
N.H.Q./H-378/K ????????
Bail refused.