ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

CP.No.D-2170 of 2013 [Reference No.58/2013]

CP.No.D-2092 of 2013 [Reference No.21/2013]

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Date Order .with signature of Judge

For Katcha Peshi.

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28.01.2014.

Mr. Shabeeh Ishrat Hussain Advocates for Petitioner in CP.No.D-2170/2013.

Mr. Abdul Qadir Syed Advocate for petitioner in CP.No.D-2092/2013.

Petitioner(s) present on interim pre-arrest bail.

Mr. Noor Muhammad Dayo, ADPG, NAB.

Mr. Walid Ansari, DAG.

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Salahuddin Panhwar-J. The petitioners being involved in the above captioned references pending for adjudication before the NAB Court at Karachi, seek pre-arrest bail and quashment of the References.

2. Record reflects that the Petitioners were admitted to interim pre-arrest bail vide order dated 20.01.2014, thereafter the petitioners have continuously attended this Court for bail confirmation or otherwise. Further, it is not disputed that the Petitioners are attending the trial Court regularly.

3. Case against the petitioners is that they being clearing agents are involved in misuse of Afghan Transit Trade Containers which did not cross the border as mentioned in the references and have been held responsible for loss of millions of rupees.

4. At the very outset of the proceedings, learned counsel for the Petitioners insist on prayer regarding pre-arrest bail, while at this stage, did not press remaining prayers.

5. It is, inter alia, contended that the petitioners are innocent and have been falsely implicated; they have acted only as clearing agents and performing their duties in terms of the relevant rules and regulations of Afghan Trade Transit; that the petitioners neither are beneficiary nor have any concern with the alleged misuse of Afghan Transit Trade; that there is no role of either clearing agent or principle appraiser in Afghan Trade Transit; that the petitioners have never had the physical control over the goods nor had any role in the sealing of the containers and delivery to the bounded carrier and there are various carriers against the Trip Detail Report such as NLC or Pakistan Railway. They have further contended that in similar circumstances bails have been granted to some other clearing agents by Division Benches of this Court in CP.No.D2833 of 2013, 2104 of 2012 and 1022 of 2013 and even the custom principle appraiser has been admitted to post arrest bail by this Court in C.P. No.D-2833 of 2013, therefore, as a rule of consistency the present petitioners are also entitled to the same relief; that on technical grounds if the petitioners are declined concession of bail then definitely after arrest they will be entitled to bail on the rule of consistency and no useful purpose will be served for sending them in judicial custody.

6. Conversely, learned Special Prosecutor for NAB is unable to controvert that co-accused on similar grounds have been granted pre-arrest bail by this Court.

7. We have meticulously examined the available record as well as the order dated 16.12.2013 and order dated 07.08.2012 in CP.No.D-2717 of 2012.

8. While scanning of available record it is not disputed that in almost similar circumstances, co-accused in various petitions have been granted pre-arrest bail by this Court. However, relevant paragraph of above referred order passed in CP No.D-3505 of 2013 [Zafar Khan vs. Federation of Pakistan and others] and other petitions, is reproduced as under:-

8. The allegations against the petitioners are that they being clearing agents have violated the terms of license and are involved in the misuse of Afghan Trade Transit Containers. On similar allegations bails have been granted by this Court to the Petitioners mentioned in Constitutional Petitions No.D-2736 of 2013, D-1022 of 2013, D-2868 of 2013 and D-2104 of 2012 (copies of the bail granting orders are already placed on record) treating their case falling within the meaning of further inquiry while in C.P. No.D-2104 of 2012 while disposing of the petition for grant of post arrest bail in similar facts and circumstances this Court has discussed the role of clearing agent as under:

“Thus in this foolproof mechanism prima facie ‘there is no role of either clearing agent of Principal Appraiser. Apparently the 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.”

“9. Reverting to the contentions of the learned counsel for the NAB that as there is no malafide on the part of the prosecution therefore the petitioners are not entitled to pre-arrest bail. We are of the view that the petitioners have made out a case for further enquiry. Moreover, in the grounds of petitions for bail and in the affidavit of the petitioners they have also alleged mala fide against the NAB authorities, therefore, no useful purpose would be served for remanding the accused/petitioners to jail custody on any technical grounds. Therefore, in view of the case of MOHAMMAD RAMZAN (quoted supra) we do not see any reason to deviate from exercising discretion in this matter, as exercised by Division Benches of this Court in the aforesaid petitioners.

10. Keeping in view the above circumstances, case of Petitioners is at par with other petitioners who were granted pre-arrest bail by this Court in various petitions, thus rule of consistency is applicable in this case, hence petitioners are entitled for pre-arrest bail. Consequently by our short order passed on 20.01.2014 pre-arrest bail was confirmed on the same terms and conditions.

JUDGE

Sajid