SIKANDAR ABDUL KARUN Versus STATE

ORDER

1. Applicant Sikandar Abdul Karim is arrested on 29-1-1994 in F.I.R. No.23/93 registered by Assistant Director, F.IA. Police Station F.IA., I&AS, KSP, Karachi under sections 409, 420, 468, 471, 34, P.P.C. read with section 5(2) of Act II of 1947 and sections 156(1)(14)(77) of the Customs Act, 1969. Interim challan against the applicant and others for offences under the P.P.C. aid under section 5(2) of Act II of 1947 is submitted in the Court of Special Judge (Central) II Karachi. In respect of the offence under the Customs Act, interim challan against applicant and others is submitted in the Court of Special Judge (Customs and Taxation) Karachi, where a bail application was filed on behalf of applicant which is dismissed on 17-2-1994.

2. The brief facts given in the F.I.R. lodged by Ehsanullah, Assistant Director, F.IA., I&AS, Karachi, are discussed by me in my order passed in Criminal Bail Application Nb.150 of 19941994 P Cr. L J 1661, which also arises out of the same F.I.R. and, therefore, the same need not be repeated.

3. I have heard the learned counsel for the applicant and the Deputy Attorney-General for Pakistan and have also perused the order of the learned trial Court rejecting bail application moved on behalf of the applicant. It is contended by the learned counsel for the applicant that although in the F.I.R. offence against the applicant are shown under section 156(1)(14)(77) of the Customs Act, 1969, the interim challan shows the offence under section 156(1)(14) only of the Customs Act, 1969. It is argued that the provisions of section 156(1)(14) of the Act relate to the commission of an offence under section 32 of the Act regarding untrue statement or declaration. Since there was neither any untrue statement nor any mis-declaration made by applicant, he could neither be said to have committed an offence under section 32 of the Customs Act nor the same would be punishable under section 156(1)(14) of the Act. It is argued that even if the applicant is found guilty of an offence punishable under the said provisions, the maximum punishment provided under law is only three years and the offence being not covered by prohibitory clause of section 497 of Cr.P.C., bail is to be granted to applicant as a matter of course although in such cases bail can be refused even if the case is one of exception. It is then argued that because of huge amount is involved in the case that by itself would be no ground to refuse bail to the applicant. In support of these contentions learned Advocates have referred the following judgments:--

(1) Rafiq v. The State 1989 P Cr. L J 143, (2) Aftab Alam and another v. The State 1993 P Cr. L J 828, (3) Syed Jalaluddin Shah and 2 others v. The State 1988 P Cr. L J. 1619, (4) Zafaran and others v. The State 1988 P Cr. L J 597, (5) Haji Wali Muhammad v. The State 1969 S C M R 233, (6) Manzoor and 4 others v. The State P L D 1972 SC 81 and (7) Manshah Khan and 2 others v. The State 1977 S C M R 449.

4. Mr. Ikram Ahmad Ansari, Deputy Attorney-General for Pakistan, has only filed a note of his arguments and is signed by Faqeer Muhammad, Inspector, F.IA., I&AS, Seaport Karachi, in which it is stated that as per memorandum of understanding dated 22-12-1991 between Messrs Daewoo Corporation and Messrs Mehran Motor Cars Company, agency's commission was agreed at US $500 per car whereas Messrs Mehran Motor Cars Company in order to evade taxes, addressed letter, dated 10-2-1992 to the Collector of Customs Valuation and declared agency commission as US $ 200 per unit, as a result of which the Customs Authorities while fixing the I.T.P. value of the Daewoo Racer Taxi took agency's commission as US $ 200 per unit. It is also stated that the vehicles under the Prime Minister's Scheme were released free of custom duties and sales tax leviable thereon in terms of SRO No.1046(1)/92 superseded by SRO No.251(1)/93, dated 3-4-1993. It is stated that the mis-declaration by the Mehran Motor Cars Company resulted in evasion of 5% Iqra Surcharge, 1% Flood Relief Fund, 6% Import Licence Fee and 2% Income-tax. It is also stated that Messrs Mehran Motor Cars Company who had imported 11,822 unit of Daewoo Racer Taxis evaded payment of Rs.1,39,02,672. These calculations are based at the exchange rate of Rs.28 per US $. Messrs Mehran Motor Cars Company Limited, of which applicant Sikandar Abdul Karim is a Director, committed offence under section 32 read with section 156(1)(14) of the Customs Act, 1969. The learned DA.-G. on the basis of above facts and figures has vehemently opposed this bail application.

5. I have considered the contentions of the learned counsel and perused the entire record. While deciding Criminal Bail Application No.150 of 1994 moved by the same applicant, I have observed that the arrest of the applicant was mala fide inasmuch as the applicant was granted bail in Crime No.7/93. Under section 409, P.P.C. read with section 5(2) of Act 11 of 1947 and was released on bail but the jail authorities instead of releasing applicant before 4-00 p.m. released him at about 9-00 p.m. and immediately on his coming out of jail he was arrested in this case which is registered on 29-1-1994 at 22-05 hours. The facts of this F.I.R. are almost identical to the facts of F.I.R. No.7/93, except that some figures have been added suggesting evasion of taxes to that extent and purported commission of offence under certain provisions of Customs Act. An offence committed under section 32 of Customs Act, is punishable under section 156(1)(14) of the said Act, to a maximum punishment of 3 years and is not covered by the prohibitory provision of section 497(1) of Cr.P.C. It would be only in case of exceptional nature where bail in such cases is refused. From the facts in F.I.R., the interim challan and the written note submitted by the DA.-G., I do not find that the case of applicant is of exception. Merely because a huge amount is involved, would also be no ground to withhold bail.

6. In the case of Rafiq 1989 P Cr. L J 143 it was observed by a learned Judge of this Court that custody of accused is never intended to be used as a punishment but it is designed to facilitate investigation or trial by making accused available whenever he is required and if the case does not fall under prohibitory provision of section 497 of Cr.P.C. and maximum sentence was less than 10 years' R.I. Court would grant bail unless there were some other compelling reason to refuse same. In the case of Aftab Alam 1993 P Cr. L J 828 a learned Judge of this Court held that offence with which the accused had been charged did not fall within prohibitory clause and grant of bail in such a case was a rule while its refusal was an exception. It was further observed that since no case of exceptional nature having being made, out, accused were admitted to bail. In the case of Syed Jalaluddin Shah 1988 P Cr. L J 1619 this Court while dealing with, application for pre-arrest bail observed that where offence did not fall within prohibitory clause, no useful purpose would be served by remanding accused to judicial custody as the tentative examination of allegations against accused would call for further enquiry: In the case of Zafaran 1988 P Cr. L J 597 the accused was charged for an offence under section 156(1)(89) of the Customs Act and while dealing with the bail application a learned Judge of the Peshawar High Court granted bail and observed that the offence committed by accused was not likely to fall within prohibitory clause of section 497 of Cr.P.C. In the case of Haji Wali Muhammad 1969 S C M R 233 it was observed that in the criminal charge short of involving a sentence of death or transportation for life, bail should ordinarily be allowed disregarding grounds of seriousness or anti-social nature of offence unless there be strong grounds in shape of evidence for belief that accused is guilty. It may be stated that in this case accused Haji Wali Muhammad was charged for smuggling into Pakistan of huge quantity of gold valued at about one crore of rupees and bail was granted. In the case of Manzoor and others P L D 1971 SC 81 it was observed that bail in non-bail-able offence is not to be withheld as punishment and that it was not correct to depend on ipso dixit of police regarding guilt or innocence of accused. In the case of Manshah Khan 1977 S C M R 449 the accused who were charged for offence under section 325 of P.P.C. for having caused grievous hurt, punishable with 7 years' R.I., was held as not one of such offences where bail is refused by reason of prohibition contained in section 497 of Cr.P.C.

7. In my view even if allegations against applicant that he committed offence under section 32 of Customs Act, and evaded payment of certain taxes or duties, a mechanism is provided under subsection (2) of section 32 of the Act for the recovery of the amount. The entire record of the case as admitted by Investigating Officer is with prosecution and there could possibly be no tampering by the applicant/accused. In such cases bail is not to be normally' refused unless it is shown that case of applicant is one of exception. At least it has not been shown by the DA.-G that although applicant is charged with offence punishable to three years imprisonment, his case is of exception and the applicant would not be entitled to bail. Applicant's case, in my view, requires further enquiry and I am inclined to grant him bail. Applicant shall be so released on his furnishing one surety in the sum of Rs.5,00,000 (Rupees five sacs) with P.R. bond in the like amount to the satisfaction of the learned trial Court. Any observations in this order with are tentative in nature and are made for the purpose of decision of this bail application shall not influence the learned trial Court while deciding the case.

8. N.H.Q./S-1065/K

9. Bail allowed.