Present
Mr. Justice Aqeel Ahmed Abbasi
1. Spl. Crl. Bail Application No.52 of 2015
Gul Wali and 4 others. .. Applicants
Versus
The State ... .Respondent
2. Spl. Crl. Bail Application No.53 of 2015
Tariq and another ... .. Applicants
Versus
The State .. .Respondent
3. Spl. Crl. Bail Application No.54 of 2015
Sohail Dawood .. .. .Applicant
Versus
The State . .Respondent
4. Spl. Crl. Bail Application No.55 of 2015
Sohail Dawood .. .Applicant
Versus
The State ... .Respondent
5. Spl. Crl. Bail Application No.61 of 2015
Ghulam Masood Bawani .. .Applicant
Versus
The State ... .Respondent
6. Spl. Crl. Bail Application No.62 of 2015
Ghulam Masood Bawani .. .Applicant
Versus
The State .. .Respondent
7. Spl. Crl. Bail Application No.64 of 2015
Sarfraz Khan .. .. .Applicant
Versus
The State .Respondent
8. Spl. Crl. Bail Application No.65 of 2015
Mujahid and 2 others . .. .Applicants
Versus
The State .Respondent
9. Spl. Crl. Bail Application No.66 of 2015
Tikka Khan .. .Applicant
Versus
The State ... .Respondent
10. Spl. Crl. Bail Application No.67 of 2015
Tikka Khan .. .Applicant
Versus
The State . . .Respondent
Dates of hearing : 23.09.2015 and 05.10.2015
Date of judgment : 23.09.2015 and 05.10.2015
Ms. Dilkhurram Shaheen, advocate for the applicants in Spl. Crl. Bail Application Nos.52 & 53 of 2015.
Mr. Fiaz H. Shah, advocate for the applicants in Spl. Crl. Bail Application Nos.54 & 55 of 2015.
Mr. S. Zafar Ali Shah, advocate for the applicants in Spl. Crl. Bail Application Nos.61 & 62 of 2015.
Mr. S. Mukhtar Hussain, advocate for the applicants in Spl. Crl. Bail Application Nos.64 & 65 of 2015.
Mr. Sameer Ghazanfar, advocate for the applicants in Spl. Crl. Bail Application Nos.66 & 67 of 2015.
Mr. Aashique Ali Anwar Rana, Special Prosecutor for Customs along with I.Os. Adnan Ameen Malik and Najeebullah Jafri.
Mr. Muhammad Qasim, Standing Counsel.
-----------------------
Aqeel Ahmed Abbasi, J: The above bail applications are taken up for hearing by consent of the learned counsel for the applicants and Special Prosecutor for Customs, duly assisted by the I.O. of the case, and to be disposed of by common order for the reasons that all the allegations as contained in the FIRs registered by the Customs Authorities in these matters, involved same alleged offence i.e. smuggling of Generators and their disposal in Pakistan under the garb of consignment of NATO Forces in Afghanistan in transit for export to Dubai by the applicants, however, by assigning different role(s).
2. In Crime Nos.03/2015 and 04/2015, the applicants/accused, namely, Sarfaraz Khan, Gul Wali, Bashir Khan, Shehzad Gul, Namat Wali, Behram Khan, Maro, Tariq, Shah Khalid, Dildar Khan and Mujahid, have been assigned similar role by the prosecution and have been shown as Drivers of the Careers on which containers were loaded and have been allegedly used for the purpose of smuggling of the generators. Whereas, the co-accused namely Tikka Khan is the owner of Adil Transport, Muhammad Umer Ali Khan is Sales Manager, Multitrans Logistics (Pvt ) Ltd., Ghulam Rasool Bawani is Manager Operation, Multitrans Logistics (Pvt ) Ltd., Sohail Dawood is Assistant in M/s. Bilal Associates, and Shahid Ansari is the proprietor of M/s Bilal Associates.
3. Learned counsel for the applicants submit that the applicants are innocent and have been falsely implicated in the above crime(s) on the charges of smuggling and pilferage in the consignment containing the Generators, which were meant for NATO Forces. Learned counsel for the applicants have readout the relevant portion of the final challan submitted before the trial Court in respect of present applicants and submits that the allegations against the present applicants are based on surmises and conjectures on the pretext that huge amounts of customs duty and taxes has been evaded by the applicants, which otherwise, could have been charged and recovered in case of regular import of such generators. Per learned counsel, from examination of the record and perusal of the contents of FIRs and the challans submitted by the prosecution before the learned Customs Judge, it can be ascertained that the prosecution did not find any clue with regard to the alleged removal or theft of Generators from the subject consignments, nor the said Generators and allied equipment could be recovered so far inspite of considerable lapse of time by the Customs Authorities. Per learned counsel, admittedly, the present applicants/accused in the above cases are either Drivers of the vehicles, employees of transport companies or employees of clearing, forwarding and shipping agencies, whereas, there is no specific role in the commission of the alleged offence of smuggling and evasion of custom duty and taxes has been assigned either in the FIR or in the final challan submitted by the Customs Authorities, except the allegation of their being involved with the directors/owners of the bonded careers, who as per record have not been arrested so far by the Customs Authorities. Per learned counsel, the matter requires further inquiry into the allegations as contained in the FIR/final challan, whereas, no material whatsoever which may connect the applicants with the alleged crime has been produced by the prosecution before the learned trial Court or even before this Court. According to learned counsel, there is no likelihood that if the applicants are released on bail they may either tamper with the evidence or may abscond. Per learned counsel, even otherwise, the alleged offence does not attract the capital punishment or imprisonment for life, whereas, most of the alleged offences do not fall within the prohibitory clause, hence the applicants may be released on bail subject to furnishing solvent surety. Learned counsel further submits that the co-accused persons nominated in the instant crimes including Raza-ur-Rehman and Malik Ali Asghar applicants/accused in Spl. Cl. Bail Application Nos.56/2015 and 57/2015 in Crime Nos.03 & 04 of 2015 have been granted pre-arrest bail by this Court vide order dated 07.07.2015, whereas, the main accused Shahid Ansari, who is proprietor of M/s. Bilal Associates, has also been granted pre-arrest bail by the learned Customs Court in Crime No.03/2015 vide order dated 25.06.2015. It has been prayed that since, no specific role is assigned to the applicants, no recovery has been effected nor any material has been produced by prosecution which may directly connect them with the alleged offence of smuggling or evasion of duty and taxes, therefore, the applicant may be released on bail.
4. Conversely, learned Special Prosecutor for Customs Authorities as well as learned Standing Counsel submit that the applicants are involved in the aforesaid crimes while conniving with each other, and specific role has been assigned to them as mentioned in challan, therefore, they have been rightly implicated in the instant crime. It has been further submitted that the applicants have caused huge loss of revenue to the exchequer, therefore, they may not be released on bail.
5. I have head the learned counsel for the applicants, Special Prosecutor Customs and the Standing Counsel and examined the available record. From perusal of para 07.32 of final challan submitted in FIR No.03/2015 on 24.06.2015 before the learned Custom Judge, it is observed that as per prosecution M/s. Port Connection (Pvt) Limited being bonded career was primarily under legal obligation to ensure safe transportation of U.S. Military Cargo to Afghanistan from the Port of loading i.e. P.I.C.T. East Wharf, Karachi, who according to prosecution, deliberately avoided to inform Customs Authorities about pilferage in the consignment either at Customs Check-Post enroot, or at Karachi Port and also played an active role in the alleged crime of smuggling etc. It has been further alleged that the Directors of above-named bonded careers with the active connivance of proprietor/partner of M/s. Peerzada Services International and M/s. Ghanis International, Directors of M/s. Multitrans Logistics (Pvt) Ltd., proprietor of M/s. Bilal Associates and proprietor/partner of M/s. Adil Goods (Pvt) Ltd., Karachi, jointly and severally committed the offence of smuggling and pilferage in the consignment containing the Generators, which were meant for NATO Forces, however, were allegedly removed from the containers during transit and sold in the open market in violation of Customs Act, 1969, CGO No.10/2012 dated 01.07.2012 and Bonded Careers Licensing Rules, hence evaded amount of customs duty and taxes, which otherwise could have been charged on regular import of such generators. However, from perusal of the record and contents of FIRs and the challans submitted by the Customs Authorities before the learned Customs Judge, it has been observed that the prosecution could not find any clue with regard to removal or theft of Generators from the subject consignment nor the said Generators and allied equipment could be recovered so far inspite of considerable lapse of time. Admittedly, the present applicants/accused in the above cases are either Drivers of the vehicles, employees of transport companies or employees of clearing, forwarding and shipping agencies, whereas, their specific role in the commission of the alleged offence of smuggling and evasion of custom duty and taxes is not reflected in the FIR or the final challan submitted by the Customs Authorities, except the allegation of their involvement and connivance with the Directors/owners of the bonded careers, who as per record have not been arrested so far by the prosecution. It has been further informed by the learned counsel for the applicants that no adjudication proceedings regarding determination of the amount of customs duty and taxes, allegedly evaded by the applicants/accused, have been initiated so far, which fact has not been denied by the I.O. who is also present along with Special Prosecutor for Customs. The applicants are behind the bars for the last several months, whereas, final challan has been submitted by the prosecution, hence they are no more required for further investigation in the instant matters. Moreover, the co-accused, namely, Shahid Ansari, who is proprietor of M/s. Bilal Associates, who according to prosecution, is the main accused has been granted pre-arrest bail by the learned Customs Court in Crime No.03/2015 vide order dated 25.06.2015, whereas, Raza-ur-Rehman and Malik Ali Asghar applicants/accused in Spl. Cl. Bail Application Nos.56/2015 and 57/2015 in Crime Nos.03 & 04 of 2015 were granted ad-interim pre-arrest bail by this Court vide order dated 07.07.2015.
6. In view of hereinabove, I am of the opinion that the present applicants/accused have made out a case for further inquiry, whereas, no useful purpose will be served if the applicants/accused are kept behind the bar during trial, which has reportedly not yet commenced as no prosecution witness has been examined so far. Accordingly, the applicants/accused, namely, (1) Gul Wali son of Khan Wali; (2) Bashir Khan son of Makhmal; (3) Shehzad Gul son of Muhammad Rasool; (5) Bahram Khan son of Wazir Gul (in Special Criminal Bail Application No. 52/2015, Crime No.3/2015), (6)Tariq son of Naseem; (7) Maro son of Muqarab (in Special Criminal Bail Application No. 53/2015, Crime No. 4/2015), (8) Mujahid son of Ashraf Jan; (9) Shah Khalid son of Meena Gul; (10) Dildar Khan son of Chitral Khan (in Special Criminal Bail Application No. 65/2015, Crime No. 4/2015) & (11) Sarfraz Khan son of Feroz Khan ( in Special Criminal Bail Application No. 64/2015, Crime No. 3/2015) were granted bail in the sum of Rs. 1,00,000/- (Rupees One Lac only) each and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court in each case.
7. Whereas, the applicants/accused, namely, (1) Sohail Dawood son of Dawood (in Special Criminal Bail Applications No. 54 & 55/2015, Crime No.3 & 4/2015); (2) Ghulam Masood Bawani son of Muhammad Idrees Bawani (in Special Criminal Bail Applications No. 61 & 62/2015, Crime No.3 & 4/2015) and Tikka Khan son of Mehrab Gul (in Special Criminal Bail Applications No. 66 & 67/2015, Crime No.3 & 4/2015) were granted bail in the sum of Rs.2,00,000/- (Rupees Two Lac only) each and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court in each case.
8. Similarly, the applicant/accused Naimat Wali son of Ghafoor Khan in Spl. Crl. Bail Application No.52/2015 FIR No.3/2015 was granted bail on similar terms vide separate short order dated 05.10.2015, and above are the reasons for such order(s).
J U D G E