THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No.998 of 2019
Criminal Bail Application No.1030 of 2019
Criminal Bail Application No.1100 of 2019
Criminal Bail Application No.1123 of 2019
Applicant (in : Sardar Sameer Hussain son of Sardar Afsar
Cr. Bail Appln. Hussain (on bail), through M/s. Yaseen No.998/2019) Azad and Naseem Malik, Advocates.
Applicants (in : Dr. Muhammad Basit son of Nazir Ahmed
Cr. Bail Appln. and Umer Farooq son of Muhammad Afzal No.1030/2019) through M/s. Muhammad Abbas Bhutta
& Muhammad Daud Narejo, Advocates.
Applicant (in : Akhlaq Hussain Dasti son of Jan Muhammad
Cr. Bail Appln. Dasti, through Mr. Mamoon N. Chaudhry,
No.1100/2019) Advocate.
Applicant (in : Asmatullah son of Muhammad Baksh,
Cr. Bail Appln. through M/s. Noor Naz Agha and Shahryar
No.1123/2019) Mirza, Advocates.
Complainant : Babar Ali Qureshi, Section Officer, Admin-
II, Ministry of National Food Security and Research, Islamabad, through Mr. Muhammad Zahid Khan, Assistant
Attorney General along with I.O. Abdul Rauf, Assistant Director, FIA, CCC, Karachi.
Date of hearing : 17.10.2019
Date of Order : 17.10.2019
O R D E R
Abdul Maalik Gaddi, J. – By this common order, I intend to dispose of the captioned criminal bail applications filed by the above-named applicants, as they arise out of same FIR. In criminal bail application No.998 of 2019, the applicant/accused Sardar Sameer Hussain is on interim pre-arrest bail granted to him by this Court vide order dated 18.07.2019 and today his bail application is fixed for confirmation or otherwise. Whereas, the applicants/accused in criminal bail applications No.1030, 1100 and 1123 of 2019 have sought post-arrest bail in Crime No.2 of 2019, registered at FIA, CCC, Karachi, under Section 161/162/34/109, PPC read with Section 5(2) of PCA, 1947.
2. The facts of the case are that a written complaint was filed on 19.04.2019 with D.G. FIA, Islamabad, by complainant namely Babar Ali Qureshi, Section Officer (Admin), Ministry of National Food Security and Research, Islamabad, alleging therein that some officers/official of department of Plant Protection Karachi under Ministry of National Food Security and Research are causing unjustified delay in clearance of oil seeds cargo for kickbacks. On such complaint, a fact finding inquiry was conducted in which it has brought in the light that some officers are involved in corruption, who have received bribe of Rs.16 Million for clearance of M.V. Vita Ocean. During inquiry conducted by the FIA, it surfaced that Asmatullah, a front man of accused Sardar Sameer Hussain, approached the importer and offered release of consignment against a kickback of Rs.16 Million and managed clearance of consignment of Soyabean, arrived through M.V. Vita Ocean and after receiving kickback/bribe of Rs.16 Million from the importer in connivance with other accused of National Food Security and Research, Islamabad and department of Plant Protection namely Dr. Muhammad Basit, Umer Farooq and Akhtar Hussain Dasti. Accordingly, FIA CCC, Karachi, after usual inquiry, lodged the FIR.
3. It is mainly argued by the learned Counsel for the applicants that the case against the applicants is false and has been registered with malafide intention; that alleged incident was occurred in December, 2018, whereas, the FIR was lodged on 26.06.2019, after the delay of about six (6) months for which no satisfactory explanation has been furnished, as such, false implication of the applicants in this case could not be ruled out; that applicants/accused except applicant Sardar Sameer Hussain were arrested on 26.06.2019 and since then, they are behind the bars and up till now, final charge sheet has not been submitted; that nothing was recovered from the arrested accused; that this FIR was lodged on the basis of written complaint made by one Shakeel Ashfaq, who allegedly belongs to All Pakistan Solvent Extractors’ Association, to the Federal Minister of National Food Security and Research, Islamabad, but according to case diary dated 21.08.2019, the said Shakeel Ashfaq was appeared before the Court and filed an affidavit of no objection in favour of the applicants/accused and submitted that the applicants nominated in this case are not the real accused and main accused of this case are absconder, as such, according to them, the case requires further probe; that there is no direct evidence against the applicants/accused that they have received any bribe/kickback in clearance of oil seeds cargo; that the case of the prosecution based on surmises and conjectures and the arrested applicants are behind the bars since 26.06.2019, but till today, even expiry of three and half (3½) months, final challan has not yet been submitted and the Presiding Officer of the trial Court has not taken any notice of it; that no specific role of the applicants in the FIR has been described; that after completing all codal formalities, the accused submitted detailed report to the Director General and there is no delay on their part in releasing the goods and the accused have followed the directions of high officials as the goods were fumigated as per procedure and also segregated the upper layer cargo for destruction; that it is the domain of Director General, who releases the goods under the Pakistan Plant Quarantine Act, 1976 and Plant Quarantine Rules 1967 as enforced under P.Q. Act, 1976; that section 161, 162, 109, PPC and Section 5(2) of PCA, 1947 do not attract upon the applicants and there is record available, which shows that the applicants have discharged their duties lawfully and no misconduct have been committed by them. Under these circumstances, learned Counsel for the applicants were of the view that the case of the applicants/accused requires further probe and further detention of the arrested accused would not serve the purpose and also do not serve the purpose, if the applicant Sardar Sameer Hussain is send to jail, therefore, according to them, these accused are entitled for bail.
4. Learned Assistant Attorney General, assisted by complainant and investigating officer of the case, vehemently opposed the bail applications and submitted that the accused are involved in receiving the bribe and kickback and that sufficient evidence/material is available on record to connect them with the commission of offence.
5. I have heard the learned Counsel for the parties at a considerable length and have gone through the case papers so made available before me with their able assistance.
6. It appears from the record that alleged incident took place in December, 2018, whereas, the FIR was lodged by the complainant on 26.06.2019, after the delay of about six (6) months for which no satisfactory explanation has been furnished, therefore, on this ground, false implication of the applicants in this case with due deliberation and consultation could not be ruled out. It is an admitted position that the present FIR was lodged on the basis of complaint dated 28.03.2019, addressed to Federal Minister, The Ministry of National Food Security and Research, Islamabad, by one Shakeel Ashfaq, Chairman, All Pakistan Solvent Extractors’ Association. However, it is noted that on 21.08.2019, the said complainant was appeared before this Court and filed his affidavit of no objection in favour of applicants and stated that applicants nominated in this case are not real accused and the main accused of this case are absconder. For the sake of convenience, the relevant portion of the said order sheet is reproduced hereinbelow for ready reference:-
“21.08.2019
Mr. Abdul Sattar Pirzada, advocate for the applicant in Crl. B. A. No.1100/2019.
M/s. Muhammad Abbas Bhutta & Muhammad Daud Narejo, advocates for the applicant in Crl. B. A. No.1030/2019.
M/s. Naseem Malik & Iqbal baloch, Advocates for the applicant in Crl. B. A. No.998/2019.
Mr. Zahid Khan, Assistant Attorney General along with Abdul Rauf, Assistant Director, FIA.
_________________________
Learned Assistant Attorney General alongwith Assistant Director FIA seeks time as he has not prepared the brief of the case. His request is opposed by learned counsel for the applicants. As an indulgence, matter is adjourned. Learned counsel for the applicant in Crl. Bail Application No.998/2019 files statement alongwith Entry No.1/25 of PS Lohi Bheer (Islamabad) regarding missing of applicant namely Sardar Sameer Hussain, same is taken on record. At this juncture, complainant of this case namely Shakeel Ashfaq holding CNIC # 42301-1082308-1 is present and files Affidavit of No Objection in favour of the applicants/accused and submits that applicants nominated in this case are not real and main accused of this case are absconder, who are highly position holder, the Affidavit is taken on record. Learned AAG as well as I.O./AD FIA submit that Shakeel Ashfaq is one of the complainants, who filed an application and on his application, the said complaint was registered. Since learned AAG as well as I.O./AD FIA has requested for a date, therefore, the matter is adjourned to 27.08.2019.
-Sd/-
Judge”
In view of the above order sheet, the question arises whether the applicants have committed the offence as stated in the FIR or otherwise. This aspect of the case required detailed inquiry at the time of trial, till then, the case of the applicants appears to be of further inquiry. The allegations against the applicants/accused are that they have received bribery of Rs.16 Million for clearance of M.V. Vita Ocean. This fact has been denied by the Counsel for the applicants/accused. It is also noted that there is no direct evidence against the applicants/accused that they have received bribe of Rs.16 Million for the clearance of M.V. Vita Ocean.
7. It is also noted that all applicants/accused were arrested on 26.06.2019 except applicant Sardar Sameer Hussain. Nothing was recovered from their possession. Since their arrest, they are in custody. Only interim charge sheet has been submitted. Almost three and half (3½) months have been passed, but final charge sheet has not yet been submitted. During the course of arguments, I have specifically asked the question from investigating officer of the case that why the final charge sheet has not yet been submitted, he has no satisfactory answer with him. Again I have asked the question from him that when final charge sheet would be submitted, he replied that it will take some time as some of the witnesses are out of country. As observed above, the applicants/accused are behind the bars since 26.06.2019 and after expiry of three and half (3½) months, final charge sheet has not yet been submitted. Under the law, the final charge sheet should have been submitted within fourteen (14) days plus three (3) days as a grace period, which has not been done in this case. It is informed by the investigating officer that applicants are in judicial custody, hence, it reveals that they are no more required for further investigation. If the investigation shall run in such a speed, the same would not conclude in near future, therefore, this Court is left with no option but to release the applicants/accused on bail as the speedy investigation and trial is the alienable right of every person, which could not be denied in any circumstances as envisaged under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
8. During the course of arguments, Investigating Officer of the case states that PW Hamid Waheed in his statement under Section 161, Cr.P.C. alleged that he delivered the tainted money to applicant Asmatullah for delivery the same to other accused. In this respect, Ms. Noor Naz Agha, learned Counsel for the applicant Asmatullah argued that applicant Asmatullah is a private person and never held in any public or government department, therefore, question arises as to whether applicant Asmatullah had passed the tainted money to the other applicants and question also arises that why investigating officer has not implicated PW Hamid Waheed in this case as an accused. It is also argued by Mr. Muhammad Daud Narejo, learned Counsel for the applicant Dr. Muhammad Basit that instant FIR has been lodged on the basis of complaint/letter dated 28.03.2019 written by the Shakil Ashfaq, Chairman, All Pakistan Solvent Extractors’ Association, in which no bribe amount was mentioned, but on perusal of FIR, the bribe amount was added malafidely.
9. It is also noted that applicants Sardar Sameer Hussain and Asmatullah are private and individual persons, who have never held in any public or government office in any capacity whatsoever, therefore, it is yet to be determined that how these applicants roped in the case concerning offence of bribery or corruption by any stretch of imagination. Therefore, this fact also requires further probe whether the incident has taken place in a fashion as stated in FIR or otherwise. It also reveals from the record that prior to the instant FIR, applicant/accused Dr. Muhammad Basit had filed Constitutional Petitions bearing No.221, 1086 and 6720 of 2018 before the Lahore High Court of Bahawalpur Bench against the department including high officials for seeking different relieves as according to learned Counsel for the applicant, upon which the high officials of his department annoyed and they involved him as well as the other applicants. This aspect of the case also leads to me that the case of the applicants require further inquiry.
10. The applicants/accused have been booked in this case under Section 161/162/34/109, PPC read with Section 5(2) of the PCA, 1947, though these offences are not bailable, but their punishments are also do not fall within the prohibitory clause of Section 497, Cr.P.C., therefore, grant of bail in such circumstances is a rule as held by the Hon’ble Supreme Court of Pakistan in its various pronouncements and its refusal an exception. No exceptional circumstances appear in this case to withhold the bail of the applicants/accused. Even otherwise, on merits, as stated above, the applicants/accused have made out a case for bail. When confronted these aspects of the case to learned Assistant Attorney General for reply, he has no satisfactory answer with him.
11. In view of the above, these bail applications are allowed and the applicants/accused, who are in custody, are admitted to bail subject to their furnishing solvent surety in the sum of Rs.500,000/- (Rupees Five Lac only) each and P.R. bond in the like amount to the satisfaction of the trial Court. However, the interim pre-arrest bail granted to applicant Sardar Sameer Hussain is hereby confirmed on same terms and conditions with directions to him to appear before the trial Court to face the trial.
12. Needless to mention here that observations, if any, made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicants/accused on merits.
These bail applications are disposed of in above terms.
JUDGE
Faizan A. Rathore/PA*