ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Special Crl. Bail Appl. No.40 OF 2014

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Order with signature of Judge

Present: Mr.Justice Muhammad Ali Mazhar

Mr.Justice Naimatullah Phulpoto

Mumtazuddin..……………………..………………..Applicant

Versus

The State……. ……………………………….....Respondent

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Date of hearing 28.10.2014.

Khawaja Shams-ul-Islam and Mr.Shahzad Mehmood, Advocates for the Applicant.

Mr.Ashfaque Rafiq Janjua, Standing Counsel

I.O. Mr.Siraj Panwhar, Corporate Crime Circle, FIA.

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Muhammad Ali Mazhar J. The applicant has applied for post arrest bail in Crime No.13/2014 lodged under Section 2 (s) and 156 (1) (8) of the Customs Act, 1969 read with Import Policy, 2013 lodged at P.S. FIA, Corporate Crime Circle, Karachi.

2. According to FIR, an information was received that the applicant is involved in the arms smuggling, who will arrive via Turkish Airline No.TK-708 on 21.8.2014 at JIAP. On his arrival, he was intercepted and on tactful questioning, he disclosed that he has been bringing consignment of arms in his personal baggage. He himself picked up his bag from conveyer belt and brought it to the Incharge office. His bag contained 25 Lower parts of Glock pistol and 97 Magazines of Glock pistol. All the items recovered from him were taken into FIA possession, applicant was arrested and seizure memo was prepared. During preliminary interrogation, the applicant disclosed that he used to bring above contraband items for Col. Hafeez against which he receives payments through cheques. The applicant had applied for bail through Special Criminal Bail Application No.33/2014, which was dismissed by the Special Appellate Court vide order dated 3.10.2014.

3. The learned counsel for the applicant argued that while dismissing the bail application an observation was made that the perusal of the FIR clearly shows that when the accused was intercepted he stated that he has brought consignment of arms in his personal baggage. Learned counsel argued that this observation is against the factual position, as according to him the applicant never stated to have brought arms in his personal baggage. He further argued that the learned Special Appellate Court wrongly presumed that the applicant’s baggage contained prohibited/band items. It was averred that the FIA has no authority and jurisdiction in terms of Section 156 read with Section 2(s) of the Customs Act. The applicant is holding Belgium nationality who is bonafide traveller and he never brought any contraband items. He was intercepted without given any opportunity to file declaration with respect to the goods stuffed in his luggage to the Customs Authorities. The applicant had himself brought his baggage from the conveyer belt and he wanted to make declaration which was not allowed by the F.IA. He further argued that the interim challan has been submitted which also does not suggest in any way that the applicant was involved in the smuggling of goods which are classified and dutiable under the Customs Act hence, neither Section 2(s) nor Section 156(1)(8) of the Customs Act, 1969 are applicable. The recovery of lower parts of Glock pistol cannot be considered arms and ammunition and there was no justification or rational to give the reference of West Pakistan Arms Ordinance, 1965 by the Special Appellate Court in the impugned order as the applicant has not been charged for any offence committed under the West Pakistan Arms Ordinance, 1965. He further argued that the seizure was conducted in gross violation of Section 162, 163 and 169 of the Customs Act. Besides that there was no private witness of the seizure. The prosecution committed gross violation of Section 79 and 80 of the Custom Act according to which verbal or written declaration of contents of baggage by passenger is necessary. He further argued that no customs official was made witnesses in the seizure memo even baggage tag/slip number is not mentioned in the seizure memo. Learned counsel further argued that the applicant while in the custody of I.O. Rana Ghulam Shabbir was maltreated and in this regard learned Special Judge (Customs and Taxation) on the complaint of the applicant passed an order for the medical examination and the medical report is available on the record. In support of his arguments he referred to the case of Muhammad Tahir reported in 1991 P.Cr.L.J. 644 in which while deciding the criminal revision against the order passed by the trial court on the application moved under Section 265-K Cr.P.C., learned Single Judge of this court analyzed Section 139 of the Customs Act, 1969 and held that this Section creates and obligation upon every passenger to make a declaration of the contents of his baggage in the prescribed manner. He further referred to the case of Tariq Bashir reported in PLD 1995 S.C. 34 in which the hon’ble Supreme Court held that the grant of bail in bailable offence is a right while in non-bailable offences the grant of bail is not a right but a concession/grace. Grant of bail in offences punishable with imprisonment for less than 10 years is a rule and refusal an exception. The bail may be declined only in exceptional cases for example where there is a likelihood of abscondence of the accused, where there is apprehension of the accused tampering with the prosecution evidence, where there is a danger of the offence being repeated if the accused is released on bail and where the accused is a previous convict. The next case is Syed Amir Ahmed Hashmi reported in 2004 SBLR 1483 in which the bail was allowed for the reasons that final challan based on documentary evidence not yet submitted. The commencement of trial is not yet in sight. The question as to whether the invoices were fake or not yet to be determined at the trail. In the case of Central Board of Revenue reported in PLD 1986 S.C. 192 the hon’ble Supreme Court held that an attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which could constitute its actual commission if it were not interrupted. Even if there is undoubtedly evidence of intention to commit the offence on the part of the offender, and of preparation to carry out that intention, the law does not make the person entertaining such intention or doing such acts of preparation culpable, so far as the offence of smuggling is concerned because there is always in such cases a possibility of change of mind or locus poenitentiae to give up the prosecution of the criminal intent beyond the stage of preparation. Reference was made to Sir H. S. Gour, in his commentary on the Penal Law of India Davey v. Lee (1968) 1 Q B 366: Stephen’s Digest of the Criminal Law 5^th Edn., (1894); Archbold Criminal Pleading, Evidence and Practice quoted. Learned counsel further quoted the bail order authored by one of us (Muhammad Ali Mazhar-J) in the case of Syed Amanullah Shah reported in 2013 YLR 110 in which it was held that the accused is entitled to concession of bail even where the offence falls within the prohibitory clause provided his case comes within the purview of further inquiry. Benefit of doubt is to be extended in favour of the accused even at bail stage. He further quoted another bail order authored by one of us (Naimatullah Phulpoto-J) in the case of Farooq Ahmed, reported in 2014 YLR 998 in which it was held that the evidence at bail stage cannot be appreciated deeply and for the purpose of bail, law is not to be stretched in favour of prosecution, and if any doubt arises its benefit has to go to the accused. In the case of Ferozur Rahman Batla reported in 1980 P.Cr.L.J. 663, the petitioner was found a genuine passenger arrived at Pakistan Airport with bona fide intention to make a proper declaration under Section 139 of the Customs Act before appropriate officer and surrendered goods under Section 142 of the Customs Act to be detained until he left Pakistan. The petitioner purchased the goods in question from a foreign country of import into other foreign country for his employer but his employer did not reach airport of destined country so as to produce import documents. The learned Judge held that probe into or assessment of evidence on point whether applicant was allowed or not to proceed to appropriate officer for making necessary declaration being not proper at bail stage and circumstances of the case seeming to require further inquiry to determine guilt of passenger and the bail was allowed.

4. On the contrary, the learned Standing Counsel argued that the applicant was arrested on the spot and he himself picked up his baggage from the conveyer belt and while examining the baggage contraband items were found and seizure memo was prepared on the same date i.e. 21.8.2014. So far as the contraband material is concerned 13 lower parts with trigger of Glock 17, 10 lower parts with trigger of Glock 19 and 2 lower parts with trigger of Glock pistol 19 were recovered while 8 magazines of 9 rounds, 50 magazines of 15 rounds and 39 magazines of 17 rounds were also recovered. Learned standing counsel argued that these are band items according to the negative list attached as appendix ‘A’ to the Import Policy Order, 2013. He also invited our attention to the interim charge sheet to demonstrate that 12 cheques are mentioned which were issued by co-accused Col. (retired) Muhammad Hafeez, through which huge amount was credited in the account of the applicant. The standing counsel further argued that the applicant is habitual offender and frequently used to travel for the smuggling of the contraband items. He also argued that under the Schedule of FIA 1974, FIA can take action for the offences punishable under Section 156 of the Customs Act. He further argued that the Divisional Bench has no jurisdiction to decide this bail application. In support of his arguments he relied on the case of Asif Ayub reported in 2010 SCMR 1735 in which hon’ble Supreme Court held that at bail stage as per provision of 497 Cr.P.C., the court has to look into the material available on record to prima facie determine the involvement of accused in the commission of offence or otherwise. In the case of Khalid Javed Gillani reported in PLD 1978 S.C. 256, apex court held that court is bound to make tentative assessment of its evidentiary value. Decision on bail application involves pre-judgment on evidence appearing prima facie at stage of seeking bail. Court in bail application to resort to tentative sifting of evidence as distinguished from elaborate sifting of evidence. In the case of Syed Lakhat-e-Hasnain reported in 2010 SCMR 855, it was held that the court at bail stage has only to see whether the accused is connected with crime or not by making only tentative assessment of the available evidence. Discretion of grant or refusal of bail under section 497 Cr.P.C. must be exercised on judicial principles according to the facts and circumstances of the each case.

5. Heard the arguments. Let us first take up the objection to the jurisdiction raised by the learned standing counsel in view of the office objection. After dismissal of the bail application in the trial court the applicant had filed special bail application No.33 of 2014 before Special Appellate Court under Section 185-F of the Customs Act, which is headed by the learned Single Judge of this court, however, his special criminal bail application was dismissed. Under Section 185-F of the Customs Act, it is clearly provided that while hearing and disposing of appeal or revision, the special appellate court shall exercise all the powers of a High Court under Cr.P.C. If we look into the definition of Special Appellate Court provided under clause (sss) of Section 2 of Customs Act, 1969, which means the special appellate court constituted under Section 46 of the Prevention of Smuggling Act, 1977 and the detailed procedure is already provided under Section 46 of Prevention of Smuggling Act, 1977 for constituting the special appellate court by the Federal Government by notification in the official gazette. The Federal Government may constitute as many special appellate courts as it may consider necessary, each consisting of a person who is a Judge of a High Court, to be appointed by the Federal Government in consultation with the Chief Justice of the High Court of which he is Judge. Section 185-F of Customs Act, 1969 makes it abundantly clear that while deciding the bail or revision the special appellate court shall exercise all powers of High Court.

6. In the case of Asghar Ali & another reported in 1999 SCMR 654, the appeal was placed before hon’ble Single Judge of the Supreme Court as a result of difference of opinion between the hon’ble Chief Justice and Mr.Justice Muhammad Munir Khan (as they then were) in Criminal Appeal No.8-Q of 1994. The appellants were found guilty of offence under Section 156 and 92 of the Customs Act by the trial court. Two appeals were filed before the special appellate court. The appeal filed by the State was dismissed and the appeal filed by the accused was partly allowed and the sentence of imprisonment and fine were reduced against which the appeal was directly filed before the apex court where the D.A.G. raised the preliminary objection regarding the maintainability of the appeal in the hon’ble Supreme Court on the ground that the appeal against decision of special appellate court is not appealable in the hon’ble Supreme Court as the said court is not a High Court within the meaning of Article 185 of the Constitution. The hon’ble Chief Justice (as he then was) came to the conclusion that the decision of the special appellate court, which is presided over by the sitting Judge of the High Court enjoins the same powers under Cr.P.C. therefore, the appeal against the order/decision of the special appellate court was competent in the Supreme Court under Article 185 of the Constitution, while the other learned Judge of the bench took the contrary view and held that special appellate court not being a High Court no appeal against its order is maintainable before the Supreme Court under Article 185 of the Constitution. After hearing, the hon’ble Referee Judge of the Supreme Court agreed to the conclusion of Mr.Justice Muhammad Munir Khan (as he then was) that the special appellate court not being a High Court and appeal against the order of special appellate court is not maintainable in the Supreme Court under Article 185 of the Constitution and consequently the appeal was dismissed as not maintainable. In the detailed reasoning while dilating upon Article 175 of the Constitution, it was held as under:-

“10. The Special Appellate Court created under Section 46 of Act XII of 1977 hears appeals only against the order of a Special Judge appointed under section 44 of Act XII of 1977 or a Special Judge appointed under section 185 of the Customs Act, 1969. The Judge of a Special Appellate Court, though appointed by the Federal Government in consultation with the Chief justice of the High Court of which he is Judge, but his headquarters and territorial limits within which he exercise jurisdiction and the class of cases in respect whereof he will have jurisdiction, are determined by the Federal Government. In case of vacancy in the office of Special Appellate Court, it is to be supplied by the Federal Government. The Federal Government upon a request from a Special Appellate Court, may transfer any appeal or revision pending before it to any other Special Appellate Court. A Court with the above attributes cannot be described as a High Court.”

7. In the case in hand also the order was passed by the special appellate court and office has raised the objection to this bail application as how this criminal bail application is maintainable when the impugned order was passed by this court in the same FIR. The plain reading of Article 185 of the Constitution of Pakistan amply makes it clear that the hon’ble Supreme Court has the appellate jurisdiction to hear and determine from judgments, decrees, final orders or sentences of a High Court. The aforesaid dictum has made unequivocally clear that the order passed by the special appellate court cannot deem to be an order passed by the High Court and the special appellate court created under Section 46 of the Prevention of Smuggling Act, 1977 cannot described as High Court and once the hon’ble Supreme Court has already held that the order of the special appellate court cannot be challenged directly in the hon’ble Supreme Court, therefore, being fortified by the dictum laid down by the apex court which is applicable in all fours, we have no hesitation in our mind to hold that this bail application is maintainable before the divisional bench of this court against the rejection order of bail passed by special appellate court and it is not necessary for us to dwell too much in this regard. The office objection is overruled accordingly.

8. According to the definition of word ‘smuggle’ provided under clause (s) of Section 2 of Customs Act, 1969 means to bring into or take out of Pakistan in breach of any prohibition or restriction for the time being in force which also includes evading payment of customs duties or taxes leviable thereon. Although in the definition clause itself various items are provided but while describing the prohibited items in generality it is further provided in clause (ii) that “and any other goods notified by the Federal Government in the official gazette, which, in case, exceed [one hundred and] [fifty thousand rupees] in value”. The offence of smuggling of any goods into or out Pakistan and its punishment is provided under Section 156 (1) (8) of Customs Act. At page 83 of the Customs Act, 1969 by Najib A. Choudhry, 25^th Edition 2014-2015, a list of Notified goods under Section 2 (s) and 156 (2) of the Customs Act is printed which is consisting of 56 items/commodities and at Sr.No.6, “Arms and Ammunition” are also mentioned.

9. It is an admitted fact that the applicant has not imported and or smuggled any arms or ammunition but from his baggage the parts of Glock Pistol were found, which are mentioned in the FIR. Even no allegation is leveled against him in the FIR that he has smuggled arms and ammunition. Much emphasis were made by the prosecution that the parts of the ammunition are provided under Entry Nos.41 and 42 of the Negative list/Banned items which is annexed as appendix “A” to the Import Policy Order, 2013. The said appendix referred to paragraph 5 (A) (i) of the Import Policy Order, 2013 which provides that goods specified in appendix “A” are banned for import, however, there are some exceptions in which the such ban said to have not applicable. In our tentative view the offence provided under Section 156 (1) (8) read with clause (s) of Section 2 of the Customs Act and the Banned items/Negative list provided under Import Policy Order, 2013 have altogether different impact and premise. The items provided under the Negative list are banned for import while offence for smuggling is separate offence which has nothing to do with the banned items or negative list but this offence ought to have been considered within the parameters of Section 156 (1) (8) of the Customs Act, which is directly related to the offence of smuggling. The applicant has been booked and charged under the provisions of Customs Act, 1969 for the offence of smuggling so the reference to the definition of arms or ammunition provided under the Pakistan Arms Ordinance, 1965 as given by the learned Special Appellate Court in the impugned order is irrelevant and with all humility, we are not inclined to subscribe the view taken by learned special appellate court as a result thereof, the bail application was dismissed.

10. The learned counsel for the applicant argued that the applicant was arrested by the prosecution immediately after landing the plane and he was intercepted without allowing him any opportunity to file declaration. It is also a fact that the applicant was taken to the conveyer belt and asked to pick-up his baggage thereafter he was immediately taken to the in-charge room, this sequence of events shows that no opportunity was provided to him for making any declaration while the letters of law makes it abundantly clear that under Section 139 of the Customs Act, the owner of any baggage whether a passenger or a member of the crew is required to make verbal or written declaration of its contents in such a manner as may be prescribed by the rules to the appropriate officer. Under the definition clause (b) of Section 2, ‘appropriate officer’ means the officer of customs to whom such functions have been assigned by or under this Act or the rules made thereunder. The question whether the applicant was allowed an opportunity to make declaration to the appropriate officer or not is a decisive consideration which requires further inquiry as no snap decision in this regard can be taken at this stage. In the cases of Muhammad Tahir and Feroze-ur-Rehman Batla (supra) also Section 139 and Section 142 were under discussion and it was held that probe into or assessment of evidence on point whether applicant allowed or not allowed to proceed to appropriate officer for making necessary declaration being not proper at bail stage and seeming to require further inquiry. In the case of Central Board of Revenue (supra) court held that even if there is undoubtedly evidence of intention to commit the offence on the part of the offender, the law does not make the person entertaining such intention or doing such acts of preparation culpable so far as the offence of smuggling is concerned because there is always possibility of change of mind or locus poenitentiae to give up the prosecution of the criminal intent beyond the stage of preparation.

11. The counsel for the applicant has also challenged the jurisdiction of FIA as according to him the matter was to be dealt by the customs authorities while the learned Standing Counsel argued that offences punishable under Section 156 of the Customs Act, 1969 are included in the Schedule of FIA Act, 1964. At this juncture, we would like to point out that under Section 6 of the Customs Act, the Board may entrust either conditionally or unconditionally any functions of any officer of Customs under this Act to any officer of Federal Government, Provincial Government, State Bank of Pakistan and Schedule Banks but in the same Section under Sub-Section (2) it is categorically provided that no officer entrusted with any functions of any officer of Customs under Sub-Section (1) shall interfere in any manner in the performance or discharge of any duty by an officer of Customs in places notified under Section 9. The declaration of customs’ ports, customs’ airports, etc. is provided under Section 9 of the Act. What happened in the case in hand is that the applicant was arrested by the FIA officials and Seizure Memo was prepared but not a single official of the Pakistan Customs was made even the witness of seizure memo nor the statement of any customs officials was recorded under Section 161 Cr.P.C. It is not the case of the prosecution that not a single custom official was present or available at Jinnah International Airport at the time of arrest or making the seizure memo so in all conscience, this aspect too requires further inquiry to prove the guilt of the applicant. Though the learned Standing Counsel with the assistance of I.O. argued that the applicant is frequent traveler and in past also there are reasons to believe that he was involved in the smuggling but neither any past record was produced nor any passport was produced before us to show the frequent travelling nor the same can be taken into consideration at bail stage. The learned Standing Counsel also pointed out from the interim charge sheet that huge amount was transferred from time to time in the account of the applicant from Col. (retired) Muhammad Hafeezullah Khan and all dates of transfer pertaining to the year 2012-2013 and one entry relates to the date 27.11.2014 which seems to be typing error. What was the consideration of transferring the alleged amount in the account of applicant is also a question of further inquiry which can only be thrashed out during trial. It is well settled proposition of law that the accused is entitled to the concession of bail even the offence falls within the prohibitory clause provided his case comes within the purview of further inquiry and the benefit of doubt can be extended in favour of accused even at bail stage. The evidence at bail stage cannot be appreciated deeply and for the purposes of bail law is not to be stretched in favour of prosecution. The learned Standing Counsel referred to the case of Asif Ayub, Khalid Javed Gillani and Syed Lakhat-e-Hasnain, in which the hon’ble Supreme Court has held that at bail stage court has to look into the material available on record and the tentative assessment of the facts and circumstances are to be undertaken for the purpose of disposal of bail. Court in bail application to resort to tentative sifting of evidence as distinguish from elaborate sifting of evidence. Discretion of grant of bail or refusal must be exercised on judicial principles according to the facts of the case and circumstances of each case. Keeping in view the precedents quoted for and against and the guidelines deducible therefrom, we are of the view that the prosecution has to explore every avenue to prove the guilt of the applicant but at present it is a fit case of further inquiry.

12. In the wake of above discussion, the applicant is granted bail subject to furnishing solvent surety in the sum of Rs.5,00,000/- (Rupees five lacs only) with P.R. bond in the like amount to the satisfaction of the learned trial court. The seizure memo reflects that the Pakistani and Belgium Passports of the applicant have already been seized even though the applicant shall not leave the country without the permission of the trial court. The above findings are tentative in nature and shall not prejudice the case of either party. The special appellate court in its order dated 3.10.2014 has already given directions to the learned trial court to conclude the trial preferably within a period of four months that directions will continue. Bail application is disposed of.

Judge

Karachi:

Dated.10.11.2014