Subhani Wadood Versus State
Ijaz Anwar, J .--- Through instant bail application, accused petitioner Subhani Wadood son of Khwaja Abdul Wadood seeks his release on bail in case FIR No.18/2020 dated 09.03.2020 registered under sections 16, 32(1)(2) and (32A) of the Customs Act, 1969 read with Sections 3(1) of the Imports and Exports (Control) Act, 1950 punishable under Section 156(1), (14), (14A), 77 and 90 of the Customs Act, 1969, Section 3(3) of Imports and Exports (Control) Act, 1950 read with Para 3 of Exports Policy Order, 2016 and section 12(1) of Foreign Exchange Regulation Act, 1947 and its relevant provisions registered at Police Station Investigation and Prosecution Branch Model Customs Collectorate of Enforcement and Compliance Custom House, Peshawar.
2. Brief facts of the case are that in due course of verification of Form-Es pertaining to the export made by the Customs Clearing Agencies mentioned in the FIR on behalf of M/S Ibrahim Subhani Traders Al Jalil Market Namak Mandi Peshawar via Customs Station Karachi, found the same to be fake, bogus and not genuine. It is alleged that the Customs Clearing Agents and the middle men in connivance with the exporter (Ibrahim Subhani Traders, Al-Jalil Market Namak Mandi Peshawar) on the basis of fake Form-Es have made an export of indigenous products and have caused huge loss to the Government Exchequer in the shape of Form Exchange tuning up to US$ 6,368789, EdS to the tune of USS 15922/- and withholding tax to the tune of US$63688/-, thus the accused accused petitioner along with others were booked under the relevant sections of law mentioned in the FIR.
3. Arguments of learned counsel for the parties heard and record perused.
4. The allegation against the petitioner is that he, while acting as Exporter has issued fake Form-Es pertaining to the export made by different custom clearing agencies. The petitioner herein has denied his involvement in any import/export business and has relied on the bank statement stating that no such transaction has been made through his account. In such circumstances, the liability of the petitioner can only be proved or otherwise after full fledged trial. The petitioner is charged under sections 16, 32(1)(2) and (32A) of the Customs Act, 1969 read with Section 3(1) of the Imports and Exports (Control) Act, 1950 punishable under Section 156(1), (14), (14A), 77 and 90 of the Customs Act, 1969, Section 3(3) of Imports and Exports (Control) Act, 1950 read with Para 3 of Exports Policy Order, 2016 and section 12(1) of Foreign Exchange Regulation Act, 1947, however, except subsection (14A), other sections are either bailable or it merely entail fine. Though subsection (14A) provides maximum punishment upto 10 years but at the same time it provides for an alternate punishment of fine. It is by now well settled that the Court while awarding punishment has the option either to award imprisonment or to inflict fine keeping in view the facts and circumstances of the case and to some extent awarding quantum of punishment is within the discretion of the Court. Albeit keeping in view the alternate punishment such fact by itself makes the case of accused petitioner one of further inquiry entitling him to the concession of bail. The above view finds support from the cases reported Sikandar A Karim v. the State 1995 SCMR 387 and an unreported case of Faiz Ullah Khan v. The State Cr.M. BA 1641-P/2015 decided by this Court on 22.9.2015. The instant bail application is, thus allowed.
5. These are the reasons for my short order even dated which is reproduced below:
"For the reasons to be recorded later, this bail application is allowed and the accused-petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs.2,00,000/- with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate/MOD, who shall ensure that the sureties are local, reliable and men of means.
JK/176/P Bail allowed.