ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

CP.No.D-3515 of 2013

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Date Order .with signature of Judge

1- For orders on office objection No.1.

2- For Katcha Peshi.

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28.01.2014.

Mr. Mohammad Kalil Dogar, Advocate for the Petitioner alongwith Petitioner.

Mr. Noor Muhammad Dayo, ADGP, NAB.

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The petitioner being involved in reference No. 02 of 2013[Re- The State vs. Ali Akbar and others] pending for adjudication before the NAB Court at Karachi, seeks pre-arrest bail and quashment of the Reference.

2. Record reflects that the Petitioner was admitted to interim pre-arrest bail vide order dated 03.09.2013, thereafter the petitioner has continuously attended this Court for bail confirmation or otherwise. Further, it is not disputed that the Petitioner is attending the trial Court regularly.

3. Precisely, relevant facts are that the Petitioner is allegedly involved in aforesaid reference with allegation that he being proprietor of M/S. B.B. Brothers, illegally retained five containers in Pakistan for local consumptions under the garb of Afghan Transit Trade which caused a huge loss to state exchequer and thus government taxes and duties were evaded.

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

5. It is, inter alia, contended that petitioner has not done any thing unlawful or committed any offence under the law; The petitioner was never engaged in the clearance of Afghan Transit Trade Import inspite of that he has been implicated by NAB authorities. In identical petitions, other co-accused have been granted interim pre-arrest bail by this Court, therefore, petitioner is also entitled for bail on rule of consistency. At this juncture, he has placed copy of common order dated 16.12.2013 order passed in various petitions.

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.

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 Petitioner 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 petitioner is entitled for pre-arrest bail. Consequently interim bail granted to the applicant is confirmed on the same terms and conditions.

JUDGE

Sajid