Present
Mr. Justice Faisal Arab
Mr. Justice Aqeel Ahmed Abbasi.
Muhammad Hussain Khan Niazi & Syed Naseer Ahmed………Petitioners
Versus
The State through Director General, NAB …… ……………… Respondent
Date of hearing : 23.11.2011
Date of judgment : 23 .11.2011
M/s Muhammad Ashraf Kazi and Shabeeh Ishrat Hussain, advocates for the petitioners
Mr. Noor Muhammad Dayo, Spl. Prosecutor NAB a/w Jawaid Ahmed Khan, SIO, NAB (Sindh).
I.O. Saud Hassan Khan, Directorate General, Intelligence and Investigation, FBR, Karachi.
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Aqeel Ahmed Abbasi, J: Through this common order, we intend to dispose of the above mentioned petitions, which involve similar facts and the controversy, whereby the petitioners have sought quashment of the FIR No.Appg-12/DCI/2006 registered against the petitioners for the offence alleged therein. Both the above petitions have been filed by the petitioners, who have been implicated in the instant FIR registered by the respondent in this connection.
2. Brief facts as stated in the FIR are that:-
“ A credible information was received by the Directorate General, Intelligence and Investigation (Customs and Excise), Karachi, that Raja Muhammad Zarat Khan S/O Makhan Khan, Chairman M/s Bawan Shah Group of Companies, Karachi, alongwith his other associates in crime with the active connivance of concerned examination staff of Collectorate of Customs (Exports, East Wharf Karachi, is involved in claiming in admissible Customs Rebate and misuse of DTRE scheme by way of phony and fraudulent exports of leather jackets and 100% Polyester Printed Ladies Suits and is causing colossal loss to the State Exchequer.
In pursuance of aforesaid information, a team of officers of Directorate was deputed to monitor the export consignment of M/s Bawan Shah Group of Companies Karachi. The constituted team on 29.3.2006, detained container No.IRSU-427256-5 (1 x 40ft) at East Wharf Karachi for re-examination, whose Shipping Bills/GDs No.KEXP-106072 dated 27.3.2006, declaring Cow Analine Leather Jackets (67 Packages) weighing 3745 Kgs, valuing Rs.20,799,533/-, KEXP-106070 dated 27.3.2006, declaring Sheep Analine Leather Jackets (83 Packages) weighing 4650 Kgs, valuing Rs.25,831,496/-, and KEXP-106071 dated 27.3.2006, declaring 100% Polyester Printed Ladies Suits (Fabric total MTR 118195) WT. 720-730 GMS per suits DTRE No.KSH-23-07-0010 dated 23.7.2005 (176 Packages) weighing 17140 Kgs, valuing RS.8,812,830/-, which were filed by M/s Moosa Abdullah, (CHAL No.2060), Clearing and Forwarding Agent, Karachi. The said consignments were declared as stuffed in container No.IRSU-427256-5, (1 x 40ft) having seal No.007592. All the aforesaid three consignments were declared to be consigned to M/s Rabian Tarabar International Transport Company. Bandar Abbas, Iran. The aforesaid consignments were duly examined and allowed loading by the concerned examination staff of Collectorate of Customs (Export), East Wharf, Karachi.
Subsequent, to the detention of aforesaid container, the Collector of Customs Exports, Custom House, Karachi was requested vide this Directorate General’s letter C.No. Appg-12/DCI/2006 dated 30.3.2006 to intimate the concerned Clearing Agent/Exporters and depute Export Collectorate staff for joint examination of the detained container on 31.3.2006. However, on 31.3.2006, neither the Exporters nor the Clearing Agent joined the process of examination. The staff of Directorate and Collectorate of Customs (Export), East Wharf, Karachi, on 31.3.2006, at 1100 hours, at Irani Shipping Line Terminal, TER-14(Over Flow), East Wharf, Karachi, in presence of two witnesses namely Syed Muhammad Akhtar, Supervisor M/s Friends Corporation Stevedores (Pvt) Ltd., East Wharf, Karachi and Mr. Noor-ul-Amin, Operation Assistant of M/s Ocean Express Agency Pvt Ltd., Karachi, de-sealed the aforesaid container and jointly carried out detailed re-examination of the container.
Upon joint re-examination, of the container No.IRSU-427256-5 (1 X 40ft), blended/cotton fabrics/cloth, Pakistan origin of assorted types/colors/sizes measuring 129,900 meters was recovered instead of declared Leather Jackets and 100% Polyester Printed Ladies Suits. Detailed inventory of the goods recovered was prepared on the spot duly signed by the witnesses and concerned officers of Directorate and Collectorate of Customs (Export), East Wharf, Karachi. The representative samples i.e. one each than/roll were drawn for lab test and court exhibits, from the said container which were also signed by the witnesses and concerned officers of Directorate and the Collectorate. Upon physical weighment of container No.IRSU-427256-5 (1 x 40ft), 23590 Kgs Net weight was found as against the declared Net weight of 25535 Kgs.
It is worth mentioning that neither any carton/bale nor a single piece of declared leather jacket and polyester printed ladies suits was found contained in the said container. Since the representative of Clearing Agent/Exporter deliberately avoided to join the re-examination, therefore, the recovered goods were seized under Section 168 of the Customs Act, 1969, for violation of Section 16, 25, 19, 32 (1) (2), 32A and 178 of the Customs Act, 1969, read with SRO 450(1)/2001 dated 18.06.2001, SRO 509(1)/97 dated 08.07.1997 and SRO 698(1)/2002 dated 09.10.2002, punishable under sub clauses (10A), (14), (14A), (77) and (82) of sub Section (1) of Section 156 ibid, against proper Mushirnama prepared on the spot duly signed by the independent Mushirs and staff of Directorate and Collectorate of Customs (Export), East Wharf, Karachi. In the absence of Exporters and Clearing Agent, Notice under Section 171 of the Custom Act, 1969 was served upon M/s Friends Corporation Stevedores (Pvt) Ltd. East Wharf, Karachi. As the shifting of the seized container to the Intelligence State Ware House was not practicable, therefore, the same after resealing with seal No.007539 was given under the superdari of M/s Friends Corporation Stevedores (Pvt) Ltd, East Wharf, Karachi, in terms of Section 168 of the Customs Act, 1969.
During preliminary investigation conducted on the spot, it was revealed that the Customs Examining staff after detention of the container by the Directorate, tempered the examination report adding therein “but this consignment is short shipped,” embossing full short shipment seal on Custom copies of the GDs bearing No.KEXP-106072 and KEXP-106070 dated 27.03.2006 whereas Shipping Agent’s copies of the same GDs do not mention any short shipment seal. The commission of tampering on the part of Custom examination staff is proved by the fact that all the copies of GD are having “passed in full” stamps and there is no mention of any short shipment of goods by Preventive Collectorate staff posted at the entrance gate. Besides, after allow shipment by the Principal Appraiser Examination, East Wharf, the loading of the said container was allowed by Preventive Collectorate staff. Besides, duplicate copies of the GDs were also submitted to the Shipping Line. The Exporter/Clearing Agent also paid wharfage charges of the container which clearly established mensrea/malafide on the part of the Exporters/Clearing Agent and the Customs staff.
Hectic efforts are underway to arrest the accused persons. F.I.R. is lodged accordingly.”
Sd/-
(SAUD HASAN KHAN)
INTELLIGENCE OFFICER
3. It is contended by the learned counsel for the petitioners that the petitioner in C.P.No.D-3116 of 2011 is a retired person and is more than 65 years of age and had been working as a Senior Preventive Officer, Collectorate of Customs (Preventive), Karachi and the petitioner in C.P:. No.D-3117 of 2011 is working as Clerk, Collectorate of Customs (Preventive), Karachi. Per learned counsel, during the whole career the petitioners have never been embroiled in any case nor any complaint was lodged against them from any corner whatsoever. However, on 31st March 2006, the Custom Intelligence had lodged instant FIR and submitted interim challan before Special Judge Customs and Taxation on 19.05.2006 and the names of the petitioners were not mentioned as accused but later on the NAB authorities filed an application under Section 16 A(a) before Special Judge Customs to transfer the case to Accountability Court. The Special Judge Custom allowed the application and transferred the above case to the Accountability Court in Karachi. Per learned counsel, after transfer of the case from Special Judge Custom, the NAB authorities filed a Reference bearing No.13 of 2007 before Accountability Court on 31.5.2007 and in this Reference the names of petitioners were first time impleaded as Accused Nos.8 and 9. Per learned counsel, there is no material or reasonable ground to connect the petitioners with the alleged offence. It has been contended by the learned counsel that the entire case of the prosecution is based upon fake and frivolous documents which are in possession of the investigating agency. Per learned counsel the main accused was granted bail by Hon’ble Supreme Court of Pakistan vide order dated 24.12.2007 in C.P.L.A No.552 of 2007. It is further contended that all other co-accused Nos.2, 3, 4, 5, 6 and 7 are also on bail as granted by this Hon’ble Court through various orders. It is also submitted that there are 19 witnesses and no witness uttered a single word against the petitioners in their 161 Cr.P.C. statement. Per learned counsel, petitioners are also entitled to bail under the rule of consistency. Whereas the petitioners became the victim of an engineered targeting at the hands and on the behest of Ex-I.O. Raza Khan for his illicit gains/goals. It has been stated by the learned counsel that the cases of the petitioners require further enquiry.
4. Mr. Noor Muhammad Dayo, Special Prosecutor, NAB, has extended his no objection in view of the bail granting order passed by the Hon’ble Supreme Court of Pakistan in the instant crime in respect of other co-accused persons.
5. From perusal of the record and on tentative assessment, it appears that the petitioners are neither nominated in the FIR nor in the interim challan but the I.O. of NAB authorities included the names of the petitioners as Accused Nos.8 and 9. It further appears that at this stage no incriminating material is available on record to connect the petitioners in the instant crime, therefore, the petitioners have made out a case of further inquiry. Whereas other co-accused persons have been enlarged on bail. For the aforesaid reasons, the petitioners were granted bail on 23.11.2011 upon furnishing solvent surety in the sum of Rs.1 million and Rs.500,000/- respectively with P.R. Bond in the like amount to the satisfaction of the Nazir of this Court, these are the reasons of such short order.
JUDGE
JUDGE
Karachi
Dated: -07-2012