ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-2833 of 2013

Date Order with signature of Judge.

Present: Mr. Justice Muhammad Ali Mazhar

Mr. Justice Farooq Ali Channa

Date of hearing 11.10.2013

Petitioner : Sardar Amin Farooqui

Respondents : The Chairman NAB & another.

Syed Mehmood Alam Rizvi and Mr.Zakir Leghari, Advocates for the Petitioner.

Syed Amjad Ali Shah, D.P.G. NAB.

Mr.Imdad Palijo, I.O. of NAB.

Muhammad Ali Mazhar,J. Through this constitution petition the petitioner has sought declaration that the post arrest bail granted to the petitioner in C.P.No.D-2721/2012 covers all allegations raised in the subsequent references filed against the petitioner regarding the Afghan Transit Containers Scam. The petitioner has also filed an application M.A.No.25419/2013 in which it has been prayed that he may be enlarged on bail in 49 references filed against the petitioner and other accused persons before the Administrative Judge, Accountability Court Sindh at Karachi subject to furnishing solvent surety.

2. The brief facts of the case are that the petitioner is principal appraiser in the Customs Department. On the orders of hon’ble Supreme Court passed in Suo Moto case No.16/2010, the Federal Tax Ombudsman was directed to submit the report in which he reported that about 28000 commercial Afghan Transit Containers were found missing during 2007-2010. The hon’ble Supreme Court directed the respondent No.1 to constitute probe committee and vide order dated 28.3.2012, NAB was directed to conduct thorough and fair inquiry in the matter by providing proper opportunity of hearing to all concerned.

3. The learned counsel for the petitioner argued that during the pending inquiry, the petitioner was arrested on 15.6.2012 and after his arrest, a C.P.No.D-2721/2012 was filed in this court and the petitioner was granted bail subject to furnishing solvent surety in the sum of Rupees two million. He further argued that the bail granted earlier was against the arrest of the petitioner in 28000 alleged missing containers so it was argued by him that since the petitioner has been released on bail, no other bail order is required if fresh references have been filed subsequently on the same allegations. On the same notion, he further argued that the respondent filed seven references bearing Nos.7 to 13 of 2012 in Accountability Court No.1 and it is a matter of record that in all said references, the status of petitioner was shown to be on bail in C.P.No.2721/2012.

4. Besides above references, five more references were filed by the respondent No.1 in the same court and non bailable warrant of the petitioner was issued, hence the petitioner filed another C.P.No.D-1624/2013 for seeking same declaration that the bail order passed in C.P.No.D-2721/2012 covers all the identical references as the allegations is one and the same. This court vide order dated 18.4.2013 was pleased to grant interim pre-arrest bail to the petitioner subject to furnishing solvent surety of Rupees two million. After obtaining second bail in other references, it came into the knowledge of the petitioner that some more references have been filed and the petitioner once again surrendered before this court with the same prayer in the C.P.No.D-1747/2013, but due to rush of work in court the matter could not be taken up on 4.6.2013 and the board was discharged but on the same date, the petitioner was arrested from the court premises. Now virtually 49 references are pending against the petitioner in which bail has been applied through this petition and the misc. application filed with reference numbers. Learned counsel further argued that the allegation against the petitioner in all the references is same in which it is alleged that investigation reveals that the petitioner while working in the capacity of Principal Appraiser, Afghan Transit Group, failed to exercise its authority and facilitated the accused. It is further alleged that the petitioner kept on clearing containers without ascertaining the cross border status of the same. It was averred by the learned counsel that this allegation has already been considered by this court while granting bail to the petitioner in C.P.No.D-2721/2012, therefore, the arrest of the petitioner on the same allegation is illegal when the petitioner is already on bail granted by this court and was attending the trial court in 07 references. He further argued that no fruitful or purposeful investigation has been carried out whether the petitioner has fulfilled his job and or responsibility or not? which can only be decided by the trial court and the case of the petitioner requires further inquiry. He further argued that other customs officials who are also principal appraisers are already on bail. He further argued that various other clearing agents and or border agents on similar references are already on bail. So far as two other constitutional petitions are concerned learned counsel argued that the C.P.Nos.D-1624 and 1747/2013 were withdrawn and now only this constitutional petition is pending.

5. The learned counsel referred to Section 235 of the Cr.P.C. and argued that the allegation against the petitioner in all references is similar hence, under the letter of law he must be charged with and tried at one trial for every such offence. He further referred to Section 17 (d) of the NAB Ordinance, 1999 in which it is provided that notwithstanding anything contained in Section 234 of the Code, a person accused of more offences than one of the same kind committed during the space of any number of years, from the first to the last of such offences, may be charged with and tried at one trial for any number of such offences. In support of his arguments, he relied upon the case reported in PLD 2003 S.C. 891 (State v. Ramesh M.Udeshi, Ex-Secretary, Board of Revenue). The Court held that If a person is charged of committing several offences of similar nature in the same transaction, the joint charge shall be framed and if several persons committed same offence in the same transaction they should be tried jointly, but this rule is subject to the provisions of section 233 Cr.P.C. wherein it is provided that for every distinct offence there shall be separate charge and the same shall be tried separately except in the cases in which the Code provides otherwise. The concept of joint trial is based on solitary principle that no prejudice should be caused to the accused in framing of separate charge and holding separate trial unless it is essentially required under the law. The provision of section 233, Cr.P.C. being an enabling provision would not make it incumbent on the court to frame separate charge and hold separate trial on the basis of same facts by splitting up one transaction into number of transactions in terms of the rule laid down in the said provision that for each distinct offence separate charge should be framed. The present case would be governed by the provision of section 235, Cr.P.C. where in it is provided that in the cases in which more than one offence is committed in the same transaction by more than one person all should be tried jointly. It was further held that mere fact that 26 different leases in the name of different persons were approved, would not be sufficient to hold that there was no commonality of purpose or that it was more than one transaction forming part of the joint summary, therefore, there can be no exception to the view that the framing of the separate charge against the respondent in each reference on the basis of same fact would be violative of the principle of law embodied in section 403, Cr.P.C. and Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. He further relied upon the case of same person reported in 2002 P.Cr.L.J. 1712 (Ramesh M.Udeshi v. State), where it was held that once the accused/applicant was tried and convicted on the basis of joint summary floated by him from which benefits flowed to 26 persons and on account of single direction to Deputy Commissioner, Malir, the subsequent prosecution and trial on the same set of facts is barred under the law.

6. On the other hand, Mr.Amjad Ali Shah, learned D.P.G. NAB has argued that the petition contains disputed questions of facts which cannot be decided in writ jurisdiction. The petitioner is nominated in a number of references and has played an active role for the commission of offence. He further argued that the petitioner was the principal appraiser and under Section 129 of the Customs Act he had many responsibilities which he had failed to perform hence he is not entitled to the bail. It was averred that FBR filed a complaint for the missing of NATO and ISAF containers for which the hon’ble Supreme Court took judicial notice in a Suo Moto case. The matter was referred to NAB for further probe and prosecution. The Federal Tax Ombudsman also submitted the report and the investigation by the NAB reveals that the petitioner, custom officer and principal appraiser are mainly responsible for the commission of offence. It was further contended that since the petitioner was nominated in various references hence, separate petition should have been filed as every transaction constitutes separate offence and there is no bar in the NAB Ordinance for filing separate reference. The petitioner cleared containers without ascertaining cross border status and due to inaction of the petitioner the national exchequer suffered huge loss. However, the learned counsel admitted that earlier the same petitioner was granted bail in C.P.No.D-2721/2012 but he submits that after grant of bail several references were submitted in the Accountability Court for trial. Learned DPG. also referred to Table 12 of the FTO’s report which pertains to the time taken in completing round trip by commercial transit containers in which it is stated that despite overwhelming evidence suggesting that minimum time a transit container requires to travel to the border-station and back to the same terminal is significantly more than 8 days, for the purposes of this investigation the FTO consciously kept it at 8 days. It was further stated in the FTO report that there is no way that a container can do a round trip in less than 8 days, after de-stuffing its cargo at the border station. It was further stated that during the past four years at least 7,922 transit containers based on 8 days cut off time, never made it to the border station and entered the (same) terminal empty after discharging their cargo en-route.

7. It was further contended that under Section 129 of the Customs Act it is clearly provided that where any goods are entered for transit across Pakistan to a destination outside Pakistan, the appropriate officer may, subject to the provisions of the rules, allow the goods to be so transited without payment of the duties which would otherwise by chargeable on such goods. In the same sequence the learned counsel referred to notification SRO.371(I)/2002 dated 15.6.2002 which pertains to the assignment of functions to appropriate officer and so far as the powers relating to Section 129 of the Customs Act are concerned, serial number/entry No.54 is relevant in which the functions have been assigned to Superintendent/Principal Appraiser. According to learned counsel after assigning powers by virtue of aforesaid notification it was the responsibility of the petitioner to properly check the documents and the consignments which he had failed to do. Learned counsel further referred to a Public Notice No.16/2000, dated 20.9.2000, which was issued in order to streamline the work relating to import under the Afghan Transit Trade Agreement, and the same public notice provided procedure for the guidance of all concerned. It is relevant to point out that this public notice was issued by the Collector of Customs (Appraisement), Customs House Karachi. The detail procedure for manifestation of bill of entry, processing of documents, detachment of documents, examination of goods, loading, completion and dispatch of ATTI, record keeping and reconciliation, offence and penalties are provided in the press release notified for the guidance of all concerned. In this document it is envisaged that the respective Customs station at the border will send the cross border certificate confirming that the goods have crossed over to Afghanistan, within 45 days of the dispatched of the copy of the ATTI from Karachi. The Afghan Transit section office shall reconcile its record on receipt of the cross border certificate. For the purpose of examination of goods it is provided that appraising officer after ensuring that copy of the bill of entry has been detached will conduct the examination of the goods. Appraiser (examination) shall inspect 100% of the goods and will verify the transit marks numbers and gross quantity. He shall also ensure that the goods are marked “IN TRANSIT TO AFGHANISTAN” in bold and clear legible letters normally he shall examine 20% of each class/variety of the goods to verify the declared description and quantity. However, in case of any doubt he may refer the case to Assistant Collector for permission to examine the goods up to 100%. Principal Appraiser (Transit Group) will counter-sign the bill of entry and sign out of customs charge. It is further provided that Appraiser Officer (examination) shall endorse the examination on the back of the original copy of the bill of entry. The examination report shall also be endorsed on the duplicate copies by putting carbon paper underneath the original copy pointing out clearly, if any discrepancy is found or not.

8. Learned DPG. also pointed out the order of the hon’ble Supreme Court dated 22.2.2013 in which the hon’ble Supreme Court accepted the FTO’s report and referred to its order dated 22.2.2013 in which the NAB was directed to conduct thorough and fair inquiry in the matter by providing opportunity of hearing to all concerned. It was further ordered by the hon’ble Supreme Court that it does not mean that NAB authorities should sit over the report of FTO and start a fresh probe but provide an opportunity to the persons involved in the cases to the extent that they should be confronted with the report and whatever evidence or defence they wanted be recorded and rest of the matters be left to the court for the purpose of proceedings against the accused for the alleged commission of the crime of corruption/corrupt practices without drawing an influence that due to lapse of a long period perhaps the contents of the report are not believable in view of the alleged counter matched evidence, which is now being collected. This aspect of the case has to be decided by the learned Court before whom the case is filed.

9. Learned DPG. further argued that at least 25 inquiries were conducted by probe committee of FBR and 44 investigations were conducted in pursuance of FTO’s report. So far as the petitioner is concerned learned counsel argued that the petitioner is nominated in 12 references initiated through FBR probe committee while in 44 references he has been impleaded with other persons for which investigation was conducted by NAB in view of FTO report. The statement of the petitioner has been recorded and he is no more required by the I.O. for further investigation. Learned DPG. also argued that the statements of Major Shahid Ali Khan, Manager HMT, NLC and the statement of Assistant Collector Usman Tariq were also recorded by the I.O.

10. Heard the arguments. There is no cavil to the proposition that where under the special law the provision for granting bail under Section 498 and or 497 Cr.P.C. is not vested in any court, then this court under its constitutional jurisdiction can entertain the petition for granting bail to the petitioner but while hearing the bail plea under the constitutional jurisdiction, prerequisites of the scheme of law provided under Section 497 and 498 Cr.P.C. are to be kept in mind. In the case in hand at the inquiry stage, the petitioner was granted post arrest bail in C.P.No.D-2721/2012 and after his release on bail, seven references Nos.7 to 13 of 2012 were filed subsequently and the NAB treated the petitioner on bail in those 07 references. However, the petitioner was subsequently arrested and at present 49 more references are pending against the petitioner. Since copies of various references were filed in a very scattered way without proper paging, the learned counsel for the petitioner also moved misc. application for seeking bail in all references and we directed him to file copies of 49 references and the office was directed to compile the same in a separate file, which was done accordingly.

11. We have examined minutely all the references one by one and in all references, the allegations against the present petitioner is more or less same. In all references it has been stated that investigation reveals that Sardar Amin Farooqui (petitioner) while serving in the capacity of Principal Appraiser, Afghan Transit Group failed to exercise his authority and facilitated the accused. He kept on clearing containers without ascertaining the cross border status of the same. Though Mr.Amjad Ali Shah learned D.P.G. argued that the petitioner played active role but in the references it is stated that he facilitated other accused persons and kept on clearing containers without ascertaining cross border status of the same. Learned counsel also heavily relied upon Section 129 of the Custom Act which does not speak of any principal appraiser but it is provided that where any goods are entered for transit across Pakistan to a destination outside Pakistan, the appropriate officer may, subject to the provisions of the rules, allow the goods to be so transited without payment of the duties which would otherwise by chargeable on such goods. So in our view under the scope and domain of Section 129 of the Customs Act the responsibility of the appropriate officer is to be examined and thrashed out through tangible evidence.

12. Though under the Notification SRO.371(I)/2002 dated 15.6.2002, entry No.54 defines the role, which has been assigned to the Superintendent/Principal Appraiser but it does not mean that without proper investigation in the matter the conclusion can be arrived at against any person that he is involved in the commission of offence but in order to sift grain from the chaff, Section 129 of Customs Act, the aforesaid notification assigning powers along with public notice No.16/2000 shall be read together in order to reach some logical or rational conclusion. In the public notice No.16/2000, detailed procedure is provided in the various heads including examination of goods. The primary responsibility of the examination of goods is entrusted upon apprising officer with the direction that after examination of goods the Principal Appraiser (Transit Group) will counter sign the bill of entry and sign out of charge. It is also stated that the apprising officer (examination) shall endorse the examination on the back of the original copy of the bill of entry. It is further provided that respective Customs station at the border will send the cross border certificate confirming that the goods have crossed over to Afghanistan, within 45 days of the dispatched of the copy of the ATTI (Afghan Transit Trade Invoice) from Karachi. The Afghan Transit section office shall reconcile its record on receipt of the cross border certificate. Learned DPG robustly argued to draw distinguishing feature that earlier the same petitioner was granted post arrest bail in C.P.No.D-2721/12 at the stage when the inquiry was pending so after filing the references the bail granted in C.P.No.D-2721/12 on 07.08.2012 has nothing to do with and the petitioner should apply separately for bail in the each reference. Though the learned DPG. advanced this line of arguments but on the contrary, it is manifesting from the record which belies his contention as the NAB itself shown the petitioner on bail in 07 references filed after granting bail to the petitioner in C.P.No.D-2721/12. On one hand he argued that the bail was granted only at inquiry stage but on the other hand, the petitioner was shown on bail in 07 subsequent references, while in 49 references, the petitioner was again arrested and was not treated on bail in the like manner.

13. We are not impressed with the arguments of the learned D.P.G. that the petitioner should have filed 49 separate petitions for the grant of bail for the simple reason that on the strength of bail order granted at inquiry stage to the petitioner in the C.P.No.D-2721/2012, the NAB itself treated the petitioner on bail in the same order in at least seven references moved subsequently without taking plea of filing separate petitions. So this arguments is misconceived that by filing this petition and misc. application the petitioner cannot be granted bail in 49 references in which the allegation against the petitioner is same but references pertain to different shipments/consignments in which he allegedly found responsible for releasing the containers being principal appraiser. In the bail matter, the form of pleading hardly matters but what matters is the ground raised for bail and amount of surety decided by the court on case to case basis to safeguard the interest of prosecution. It is not the case where the accused has been involved in different Fir(s) on different offenses with different roles in each and every case but allegations against him is same in all references with the difference of consignments allegedly released by him from time to time being principal appraiser. We have also seen the consolidated order passed by the learned divisional bench of this court on 7.8.2012 in C.P.No.D-2721/12 and other 07 petitions, in which the procedure of loading goods was reproduced as under :-

“Thus, in terms of this (loading) it is a senior preventive officer who appears to be responsible for allowing loading of the goods in the bonded carrier. After loading of the carrier the loaded wagon was to be sealed by the authorized security agency i.e. M/s.Brinks, the preventive seal and the railway seal. Thus in the entire process of loading the clearing agents and the principal appraiser who have filed these petitions have not been prescribed any role. When confronted with the learned Prosecutor NAB we were informed that neither the bonded carriers such as NLC and Railways, as the case may be, were investigated nor the preventive officers who have specific role in the loading of the consignment were questioned whereas they have roped all those persons who prima facie are neither involved nor could possibly play any part therein. Moreover even after investigation nothing came out in evidence to rope them in and at the moment all of them are in jail custody.”

14. The learned divisional bench also referred to CGO.4/07, dated 31.3.2007 and its relevant Chapter II and III which deals with “safe transportation” and “sealing” at focal points (entry) of containers transported by road for transit and went on to hold that in view of foolproof mechanism prima facie there is no role of either clearing agent or Principal Appraiser. It was further held that apparently they never had the physical control over the goods nor had any role in the sealing of containers and the delivery to bonded carrier or their authorized carrier against Trip Detail Report (TDR) such as NLC or Pakistan Railways. The learned divisional bench also recorded in the bail order that learned senior prosecutor NAB as well as I.O. of the case present had categorically stated that the petitioners are no more required for the purpose of investigation.

15. The I.O. appeared and stated that so far he has only recorded the statement of Major (retired) Shahid Ahmed Khan, Ex-Manager, Port and HMT, NLC under Section 161 Cr.P.C. We have seen his statement, in which he has stated nothing directly against the petitioner on the basis of which the petitioner can be found involved in the offence, at this stage unless the case is tried and the guilt of the petitioner is proved which requires further inquiry in the case. I.O. then pointed out the statement of Usman Tariq, Assistant Collector in which also he stated the procedure and referred to Section129 of the Customs Act, SRO. 371 and public notice No.16/2000. According to him, it was the responsibility of the principal appraiser to keep on reconciling the record pertaining to cargo and in case if ATTI/CBC of a container/consignment is not received back within 45 days from the border Collectorate, it becomes his duty and responsibility to contact and confirm from respective exit Collectorate regarding cross border confirmation. Again through this statement nothing is reflecting whether the petitioner has fulfilled or complied with his job responsibilities properly or shown any recklessness, negligence or even involved in some corrupt practice, which cannot be decided at this stage, unless the entire evidence is placed before learned trial court to show that the petitioner had failed to perform his job responsibilities but on mere statement it cannot be assumed or presumed that the petitioner is involved in the scam. In the third statement recorded on 9.3.2013, the petitioner stated that according to his knowledge the container processed and cleared by him were safely reached at the destination customs exit points and pilferage of those containers was not reported to him or Afghan Transit Section. He further stated that the details of containers provided to him by FBR probe committee which were cleared by the petitioner had reached at their destination and no pilferage was reported to him during his posting at Afghan Transit Group. The above are only three statements which have been recorded by the I.O. during investigation. It is also an admitted fact by the I.O. and the learned D.P.G. that all other Customs Officers who are allegedly involved in the scam are on bail. It is also a fact that most of the clearing agents and cross border agents against whom references were filed are also granted bail by this court and some of the orders have been shown to us and this bench have also granted bail to some of the clearing agents and cross border agents like other benches.

16. The scope of further inquiry in each case depends upon the facts and circumstances of the case. it is also settled proposition of law that when court after considering the material such as FIR, statement of prosecution witness recorded under Section 161 Cr.P.C. recoveries and defence plea if any raise reached to the conclusion that the matter requires further probe/inquiry then bail should not be withheld as punishment. The further inquiry is a question which must have some nexus with the result of the case for which a tentative assessment of the material on record is to be considered for reaching just conclusion. The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime. Almost in all references, the authority who forwarded the references in court stated in the references that on appraisal of evidence placed before him, he is of the opinion that it is just and appropriate to proceed further against the accused persons as there is sufficient evidence to justify the filing of reference. On the contrary, during course of hearing where sufficient opportunity was afforded to I.O, he only placed before us copies of three statements which have already been discussed above. No documentary evidence or record was produced to show how many consignments were released and how many custom documents were processed or signed by the petitioner for releasing the consignments while performing his duties of principal appraiser.

17. After dilating upon the detail procedure discussed above the role of the present petitioner in the alleged offence is required to be thrashed out and at this stage neither it can be decided nor reasonable ground exists that the petitioner alone was responsible in the commission of crime being a principal appraiser but it is to be seen in depth the role of accused persons including the chain of all customs officials who were assigned or deputed to perform different tasks and responsibilities in the clearing of containers and to fix and or shift the responsibility, the role of each accused involved in the procedure is to be examined separately which can only be done by the trial court after framing charge. The case law relied upon by the learned counsel that all references be tried together with one charge, this possibility will be examined by the learned trial court and at this stage we would not like to give any observation in this regard.

18. After considering the pros and cons and making tentative assessment of the material placed before us we are of the firm view that the case of the petitioner requires further inquiry. The petitioner was granted bail vide short order dated 11.10.2013 subject to furnishing solvent surety in the sum of Rs.10 million (Rupees ten million only) with P.R. bond in the like amount to the satisfaction of the Nazir of this court. Besides furnishing solvent surety, the petitioner was also directed to deposit Rs.50,00,000/- (Rupees fifty lacs only) in cash with the Nazir of this court. It was further ordered that another surety in the sum of Rs.20,00,000/- (Rupees twenty lacs only) has already been furnished by the petitioner in C.P.No.D-2721 of 2012 which will also remain intact till further order of this court. Besides above, the petitioner was also directed to surrender his original passport with the Nazir of this court and on the strength of this order the respondent was directed to immediately apply to the concerned authority for placing the name of petitioner in E.C.L. Above are the reasons of our short order. The above findings are tentative in nature and will not prejudice the case of either party.

Judge

Karachi,

Dated: 02-11-2013