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Petitioner: SIKKANDAR A. KARIM VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Shafi Muhammadi Title: SIKKANDAR A. KARIM vs THE STATE Case No.: Special Criminal Bail Application No,11 of 1994, Date of Judgment:1994-10-26 Reported As: PLD 1995 Karachi 73 Result: Bail refused
Judgment ORDER 'By this common order I intend to dispose of Bail Applications Nos.11 of 1994 and 583 of 1993 moved on behalf of applicant/accused Sikandar A. Karim son of Haji Abdul Karim (hereinafter referred to as "the applicant" or "the accused"), as they arise out of one F.I.R. No,24 of 1994 dated 16-6-1994 registered under section 156(1)(8)(14) of Custom Act, 1969 read with section 5(2) Act II P.CA., 1947. These applications were filed before this Court on his behalf after his failure to get bail from the Courts of "Special Judge" (Custom and Taxation) at Karachi where he has to face trial along with his two absconding partners namely Nazeer Haji Usman and Riaz Haji Usman, all being the owners of Messrs Mehran Motor Cars Company (hereinafter referred to as the `MMCC'), for the offences punishable under section 156(1)(8)(14) of the Customs Act, 1969 and from the Court of Special Judge (Central I), Karachi where a case is pending against them as well as against several employees of KPT and Custom authorities under section 5(2) of the Prevention of Corruption Act, 1947. 2.Till date, three episodes of the serial of "Prosecution story" have been displayed by the F.IA. But its extraordinary publicity has been done by the applicant's sympathisers after realising the effects of the remarks of "mala fide" which were passed by one of my brother Lords against the prosecution after setting out to view the performance shown by the representatives of the prosecution as is clear from the following factual position: "(i) On 21-2-1994, Mr. Habib-ur-Rashid, Advocate appeared in Bail Application No,150 of 1994 before the Court although he could not argue the matter on behalf of the Central Government because he was an advocate on the panel of Provincial Government. The matter was adjourned for the next day without bringing on record the above fact about his competence to appear before the Court.
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(ii) On 22.2-1994, Mr. Sarwar Khan, the learned Assistant Advocate-General appeared before the Court in the same matter and pointed out that as the F.I.R. Was lodged by F.IA., therefore the bail application could be argued by a representative of Central Government or by the Deputy Attorney- General. (iii) Thus it was surprising for me when the record of Bail Application No,52 of 1994 sounded that it was argued by Mr. Ashiq Rana, Advocate who was also an advocate on the panel of Provincial Government. Neither any objection was raised by the learned Advocate for the applicant nor by- the Court. (iv) But on 7-9-1994, when Mr. K.M. Nadeem, learned Assistant Advocate-General, wanted to address the Court on certain points after completion of the arguments by Mr. Farooq H. Naek, the learned D.A.G., objection was raised by Mr. Shaukat H. Zubedi that as "Mr. K.M. Nadeem" was a "Provincial Law Officer" therefore, he could not address the Court in the matters which was purely concerned with the Federal Government. Mr. K.M. Nadeem contended that he was appearing on "Court Notice" issued by the Court on 4-7-1994 to assist the Court and he was attending the Court, almost, on all dates whenever the case was fixed for hearing. However, I repelled this contention on account of the facts mentioned in Criminal Petition No,47-K/1994 in the case of Darias B. Kandawala who is a Parsi businessm an. In that case one advocate namely Mr. Farid Ahmed Dayo, belonging to the panel of Provincial Government, had appeared in the Court before my brother Lord Mr. Justice Muhammad Aslam Arain in an application under section 561-A, Cr.P.C. Moved on behalf of accused Darias B. Kandawala and submitted no objection without any authorisation from the Deputy Attorney-General or Standing Counsel or from the Central Government and the proceedings against the accused were quashed. Hence leave was granted by the Supreme Court on 18-8-1994 to consider the contentions raised by the State in the cited Criminal Petition. It is important to point out that special publicity was given by Mr. Ardeshir Cowasjee, a famous Parsi Journalist, in favour of Mr. Farid A. Dayo, Advocate, in one of his articles published in Daily Dawn, Karachi without giving the details and legal status of the advocate belonging to the panel of Provincial Government whether he could appear in the Court to give "No Objection" to quash the proceedings in the matters which were exclusively concerned with the Central Government. No doubt the `freedom of press' is the pillar of democracy and the Judges of the High Court are not afraid of the Journalists who feel happiness in criticising the judiciary but it would be appreciable that important facts must not be hidden by such journalists so that the institution of judiciary be saved from being defamed for nothing." In the present bail applications, too, an impression was given to the press by certain hidden hands that the Court is avoiding to hear the bail applications of the applicant under one pretext or the other. This impression got reinforcement from the allegations given in the present application that:-- "Justice is being denied to the accused and the law is circumvented by the FIA in order to achieve their ultimate object of compelling the accused to agree to the terms of the F.I.A. On the instructions of the high-ups. That the arrest is mala fide as it is quite apparent and is politically motivated in order to achieve ultimate objectives of compelling the applicant to compromise. It is quite apparent that the F.IA. Is blowing hot and cold in the same breath for the sole purpose of making out a false case so as to compel the applicant to come to the terms of compromise." Although it is an unfortunate of our history that undisputed politicians in opposition are usually booked in false cases by certain agencies, to show the rulers that they are more faithful to them than the rulers themselves yet painting the character-pictures of non-political persons with political colours can never be appreciated by the Court. The applicant does not seem to be a political person. He has not been booked in blind F.I.Rs, The case against him is based on
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documentary evidence. His two partners are absconding. Therefore I was not inclined to be impressed by such allegations. However, I gave full freedom to the learned advocates of the parties to argue the matter in detail and they took weeks to conclude their arguments. But the consequences of such freedom were apparent because I was fully burdened with the weights of heavy arguments advanced by Mr. Shoukat Hussain Zubedi and Mr. Farooq H. Naek, D.A.-G., who appeared on behalf of the applicant and the State respectively. This detailed judgment is the result of that freedom. 3.Before touching different grounds given in the bail applications, would like to deal first with the ground embodied in the remarks of my brother Lord Mr. Justice Muhammad Aslam Arain passed while passing orders on Bail Application No,150/1994 because these remarks are one of the main grounds urged by the learned counsel and which run as under:-- "Learned D.A.-G. (means Mr. Ikram Ahmed Ansari) who submitted a brief note signed by I.O. Did not cite any case-law to rebut the contentions raised by applicant's learned counsel. I.O. Who was also present did not controvert allegation regarding applicant's release from Jail on 29-1-1994 at 9-00 p.m. And arrest thereafter in this case. In my view the investigation appears to have acted mala fide ... This ground of "mala fide" was specifically stressed upon by the learned advocate on behalf of the applicant and was repeated several times along with other grounds in bail applications. Hence it has become indispensable to deal with this ground by keeping in view the points considered, viewed, discussed or decided in the disposed-of application. The ground of mala fide is usually taken in applications for bail before arrest and not in the cases where the accused is in custody with charges of some substantive offence. This ground is also urged by the advocate on behalf of the detained political or non-political personalities in Constitution petitions or petitions under section 491, Cr.P.C. When such persons are arrested in blind F.I.Rs, and the police shows their arrest and release by now and then in those F.I.Rs, on account of certain politically motivated instructions. It was for the first time for me to see such remarks in the cases of arrested accused persons at bail stage, perhaps on account of my feeble knowledge of law as compared to the scholarly knowledge of studious intellectuals such as Mr. Khalid M. Ishaque, Advocate, who had argued the disposed-of applications, and the profound erudition of my learned brother Mr. Justice Muhammad Aslam Arain. To thy humble opinion, the Court has to be very careful at the time of considering bail applications because it has never been desirable to make such observations at bail stage which may prejudice the case of the prosecution or the accused. Although microscopic study of the stories built-up and presented by the prosecution or by the defence is not barred yet the microscopic scrutiny by the Court to damage anyone's case has never been appreciated. Instead of discussing the facts, circumstances or merits of the case in detail at bail stage, the Courts are presumed to make only a tentative assessm ent to reach a conclusion whether reasonable grounds exist or not for believing that the accused has committed a non-bailable offence. It is only in the light of that assessment that the Courts have to exercise its proper and lawful discretion to grant or refuse bail to the accused. There is no dispute over this fact that the judgment authored by any Judge of a High Court is not authoritative for another Judge of the same High Court but its importance as A being "persuasive in its nature cannot be ignored. Hence, I feel myself to be under moral obligation to seek maximum strength from the orders passed on the applications disposed-of by my learned brother Lord. But it may be my unfortunate that I could not persuade myself to reach the same conclusion as drawn by him. According to my point of view the observations of "mala fide" made in those orders could not be given at bail stage because such remarks were sufficient to damage the case of the prosecution. The effects of such remarks could not be washed away by writing the following lines:
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"Any observations in this order which are tentative in nature and are made for the purpose of deciding this bail application shall not influence the trial Court while deciding the case." If these words had any washable force, then the ground of "mala fide" would not have been taken in the present application. To my humble view the allegation of mala fide are the "questions of facts" which can be proved or turned down after the evidence is recorded. Mere allegations, at the bail stage, on the basis of arrest, after release, in a fresh case is not sufficient to make such observations by the Court. Otherwise every criminal, after his arrest, in different cases would treat the same to be based on "mala fide". If there is unrebuttal evidence before a Court about the innocence of an accused, then it would be in the interest of justice to quash the proceedings against the accused instead of granting him bail. Be that as it may, the remarks or observations referred above have burdened me to bring on record the details of tussle going on between the F.IA. And the applicant (in custody) along with his two absconding partners. 4.As pointed out in para. 2 above, the serial of prosecution story consists of several episodes, the glimpses of which have been flashed in different F.I.Rs, registered against the applicant and his two absconding partners. As these episodes are closely linked, hence I consider it appropriate to brief their factual reflections highlighted or narrated by the learned counsel for the applicant as well as radiated by the record and before the Court or sent for by it at the initial stage when the present applications were tabled for hearing. It appears that the Government, in order to meet the demon of unemployment in presence of scrambling economy of the country, prepared a Scheme in 1989, which is known as "Prime- Minister's Public Transport Scheme". According to this Scheme all kinds of vehicles such as motor- cycles, taxis, buses etc. Had to be supplied to the unemployed people so that they could earn their livelihood instead of seeking jobs in the Government Offices. Before this Scheme could be properly implemented, the Government of that time was sacked and new comers mounted upon the said scheme. The poor people, who knew driving, were offered to get taxis on payment of certain percentage of the total amount of such vehicles. These taxis had to be imported by the appointed dealers free from Custom Duty and several other taxes, which were leviable upon the import of private cars to be used other than the taxis. This Scheme, thus, attracted the poverty-stricken souls with a dream to earn their livelihood independently instead of licking the feet of blood-sucking bread or fastidious owners of private taxis from whom they used to hire the taxis to earn bread for their families. In October, 1991, M/s. Daewoo Corporation of Korea, offered their Racer Cars to be plied as Taxis when an official delegation led by Commerce Minister visited Seoul in connection with the Second Trade Ministry Meeting. The F.O.B. Price of Car was offered by the Corporation as US $ 5,100 per unit however, on 2-11-1991, a Memorandum of Understanding (agreement) between M/s. Daewoo Corporation and Government of Pakistan was signed and the price of Daewoo Racer Car of 1500 CC with CIF price was agreed to be US $ 5,500 per unit. It was only after this Memorandum of Understanding (M.O.U.), that the Princes of Machiavellian wisdom played their role to satisfy the whims of their lust for wealth at the cost of destituteness or poverty stricken people as well as by causing substantial loss to the Government Exchequer. Let us see, how the applicant was accused by the prosecution in different episodes of their story. 5.The main portion of the first episode, 'appearing from F.I.R. No,23 of 1994', F.I.A. I&AS Seaport Karachi, brings the following synopsis to light: "(i) M/s. Daewoo Corporation agrees to supply standard specification of Daewoo Racer Taxi` at the rate of US $ 5,500 including ocean freight and insurance. (ii) M/s. MMCC appears on the scene as the sole distributor but with enhanced price of the car instead of the agreed price of US $ 5,500 per unit. The arrangement of fixing enhanced price was
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done by way of another Memorandum of Understanding, now directly between the Daewoo Corporation and M/s. MMCC. The officials of D.G. Communication and Ministry of Industries connived with M/s. MMCC for re-fixing the price of cars for over-invoicing committed by M/s. MMCC with the help of false price schedule submitted by M/s. MMCC before PACO and Ministry of Industries wherein the C & F price was shown as US $ 6,895 with agency commission of US $ 350 per unit which was misdeclared before the Custom Authorities as US $ 200 per unit although it was charged @ of US $ 500 per unit. (iii) 7,222 Units of Daewoo Racer Taxis were imported by M/s. MMCC @ US $ 6,800 per unit inclusive US $ 500 agency commission. On account of increasing demand of the taxis by the people, again, false price schedule was prepared to get maximum end-selling price fixed. (iv) M/s. MMCC also pledged 1,150 units and 200 units of the Cars with M.C.B. And U.B.L. Respectively and in connivance with the corrupt officials of Custom, disposed of those Cars without obtaining N.O.C. From the banks. It has been estimated that the agreed price of taxi was originally Rs,1,82,590 in Pak-Rupees but on account of the conspired mischievous deception of service, the poor taxi-drivers have to pay Rs,2,64,000 per taxi i,e, approximately Rs,80,000 per taxi more than the actual price to clear up their final dues. As 90% of the cost has to be made by the Government of Pakistan, so it gave a death blow to the foreign exchange on account of over-invoiced refixed enhanced price besides squeezing the blood of the hunger-stricken souls of underdeveloped and poverty facing society of Pakistan." It is notable that the figures given in the above paras. Had neither been denied in any of the disposed-of bail applications nor rebutted in the present applications. However, bail in those cases, was granted on technical grounds by holding that the sections applied in the F.I.Rs, to indicate the offences alleged to have been committed by the applicant were not applicable to the facts of the case and the amount earned by the applicant and his partners illegally, as alleged, by misdeclaration could be recovered by the Government. Therefore bail could not be refused on the ground that huge sum was involved and heavy loss had been caused to the Government Exchequer on account of misdeclaration. It is further alleged that several officials are involved in this case. From these allegations it is evident that the accused not only belong to the public but also to the private sectors who had common intention to defraud the poverty-stricken taxi-drivers by fixing enhanced price in place of actual price and caused loss to the Government Exchequer with substantial amount in clandestinely manners wilfully and deliberately by abusing their official position on the strength of false documents presented by the MMCC. This is the end of first episode of the prosecution case. 6.The second episode appearing from F.I.R. No,7/1993 F.IA. I&AS Seaport Karachi starts with the arrival of taxis on different dates according to the following summary: "(i) 700 Daewoo Racer Taxis arrived through Vessel SS Brilliant Ace at West Wharf Karachi on 14-5- 1993. The landing and demurrage dates were fixed as 18-5-1993 and 15-5-1993 respectively. Delivery was taken on 29-5-1993 and 30-5-1993 without paying demurrage to cause loss to the Government Exchequer to the tune of Rs,4,79,304. (ii) 800 Daewoo Racer Taxi arrived through Vessel Australian High Ways on 12-5-1993. The landing and demurrage dates were fixed on 18-5-1993 and 24-5-1993 respectively. Delivery was taken on 26-5-1993 without paying the actual demurrage charges amounting to the tune of Rs,2,73,888. In this case demurrage of only one day was paid. (iii) 1,000 Daewoo Racer Taxis arrived through Vessel Marks on 16-4-1993. The landing and demurrage dates were fixed as 19-4-1993 and 25-4-1993 respectively. Delivery was taken without paying demurrage for 25-4-1993 and 26-4-1993 to the tune of Rs,3,42,360."
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It was therefore, alleged that M/s: MMCC had succeeded to do so with the active connivance of Traffic Manager of KPT and several other officers. The abovementioned two cases were dealt by my brother Lord Mr. Justice Muhammad Aslam Arain. 7.F.I.R. No,24 of 1994 F.I.A. I&AS Seaport, Karachi is the subject-matter of the present bail applications which brings into light the prosecution story in its third episode. It consists of several scenes starting with the import of auto-parts. Contrary to the case of importing cars involving "over- invoicing", the import of auto-parts involves under-invoicing. The reason is obvious. The cars were imported free of custom duty while the auto-parts could not be imported without payment of custom duty and several other taxes. The prosecution story brings into light the allegations of (i) misdeclaration, (ii) smuggling and (iii) corruption in the cases of present applications by saying that:-- "(i) M/s. MMCC had established several L.Cs. On different dates through M.C.B., Finance and Trade Centre Branch, Karachi in favour of M/s. Daewoo Corporation Seoul Korea for the import of auto- parts and in manipulation with the Principal i,e, M/s. Daewoo Corporation, misdeclared the import value about 30% less than the actual value of the auto-parts in the import documents. It is claimed by the prosecution that this clandestine deal is confirmed from Daewoo Corporation's letter No, KHI/085-B, dated 5-8-1992 which speaks as under:-- Please find enclosed P/In from our Head Office for your reference. There are about 30% price differences between L/C Value and Actual Value as follows:-- L/C Value (Inv. No,) Actual Value (Inv. No,) US $ 1989332 (HYA-YJ 20804.1) US $ 28097.34 (HYA-YJ 20804.3) US $ 103976.38 (HYA-YJ 20804.2) US $ 147038.09 (HYA-YJ 20804.4) US $ 123869.70 US $ 175135.43 Actual Value L/C Value Difference US $ 175135.43 US $ 123869.70 US $ 51265.73'." The above 4 pro forma invoices showing the L.C. Value and actual value were recovered from M/s. Daewoo Corporation, Karachi Office. Against Pro forma Invoice No, HYA-YJ 20804.1 and HYA-YJ 20804.2 L.C. No,371-01- 44-107 dated 12-8-1992 was established by M/s. MMCC and had imported 4 shipments against this L.C. The difference amount between the L.C. Value and actual value which comes to US $ 51,265.73 was remitted by M/s. M.M.C. To M/s. Daewoo Corporation through T/T of Habib Bank, A.G. Zurich Deira, Dubai. Besides, a telex dated 6-9-1993 further reveals the clandestine deal of M/s. M.M.C.C. With M/s. Daewoo Corporation in which the actual value and shipment value of the following shipments was shown as under:-- Shipping DateTotal amountSettled amountBalance to be paid April 2, 93 $ 94,292.90 $ 66,742.32 $ 27,550.58 May 29, 93 $ 3,12,129.34 $ 2,21,026.36 $ 91,104.98 June 12, 93 $ 4,43,940.73 $ 3,13,863.25 $ 1,30,077.48 July 16, 93 $ 21,943.72 $ 16,239.27 $ 6,704.45 July 16, 93 $ 99,832.57 $ 70,625.52 $ 29,207.05 July 23, 93 $ 43,819.65 $ 31,031.67 $ 12,787.96 July 31, 93 $ 41,481.32 $ 29,369.27 $ 12,112.05 Apart from the above, pro forma invoices Nos.HYA-YJ 211204.4 and HYA-YJ 211204.3 of December 4, 1992 and the fax message vide Ref. No, HYA-YJ 21205.1 dated 5-12-1992 showing the original value and under invoice value, have been recovered from M/s. Daewoo Corporation, Karachi office.
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Against pro forma invoice No, HYA-YJ 211204.4, M/s. Mehran Motor Cars Company had established L.C. No,1371-01-45-45 which further substantiates the under invoicing in price of parts. (ii) Regarding the charge of smuggling, it is alleged that M/s. MMCC committed the offence of smuggling in two different ways to smuggle the auto-parts. The first way of smuggling is alleged to have taken place as under:- "A request was made by M/s. MMCC vide their telex Ref. No,G-38/B dated 20-7-1992 to M/s. Daewoo Corporation by saying:- `Since shipment against L.C. 44/95 for 200 units Racer expected and July/Early August hence in order to be competitive in the market for spare parts, we (Means MMCC) request you (Daewoo Corporation) to please see that maximum possible parts as per our orders 786-3/92 and 786-4/92 are packed in trunks of 200 units.' "Invoice or declaration in Bills of Landing are not required. Cost of total parts will be adjusted against advertising bills or will be arranged separately. Please confirm what parts quantity-wise are expected to be supplied with 200 units Racer Taxi shipment." In response, on 30-7-1992, M/s. Daewoo Corporation, Karachi received fax message from Daewoo Corporation, Seoul, in Korean Language, original recovered from Daewoo Corporation, Karachi office wherein they informed the part's number, part's name and its quantity and specific body number of Daewoo Racer Taxi in the trunks of which the atuo-parts were put. It is claimed by the prosecution that all the above facts were confirmed from the correspondence done between M/s. MMCC and M/s. Daewoo Corporation. In support of this allegation, the prosecution avers that M/s. Daewoo Corporation vide their letter No, KHI/085-B dated 5-8-1992, which was seized in original from the office of M/s. MMCC and its copy from the office of M/s. Daewoo Corporation informed M/s. MMCC that the auto parts put into the trunks of Racer were shipped by M.V. Wolfsburg vide Bill of Lading dated 27th July, 1992. The bill of Entries filed by the importer through their Clearing and Forwarding Agent for 200 Daewoo Racer Taxi also corroborate the contents of the Fax Message dated 30-7-1992, referred to above. Besides, M/s. Daewoo Corporation, Karachi vide their letter dated 26-7-1994 have confirmed the contents of letter dated 5-8-1992 and further confirmed that abovementioned letter dated 5-8-1992 was written and signed by Mr. W. S. Park in his own handwriting and further added that Daewoo Corporation, Seoul, sent the letter to Mr. Park. (b) The second way of smuggling adopted by M/s. MMCC, stated to be based on the record collected from Muslim Commercial Bank Finance and Trade Centre Branch,…
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