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Official Citation: 1988 PCRLJ 1245
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 1994
Decision Date: 1994-12-11
Parties: SIKANDAR A. KARIM vs THE STATE
This judicial decision was delivered by the Supreme Court of Pakistan on 1994-12-11. The matter involves proceedings between SIKANDAR A. KARIM and THE STATE, officially reported as 1988 PCRLJ 1245. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 1988 PCRLJ 1245
Court Name: Supreme Court of Pakistan Judge(s): Saeeduzzaman Siddiqui, Mukhtar Ahmed Junejo Title: SIKANDAR A. KARIM vs THE STATE Case No.: Criminal Petitions Nos. 146 and 147 of 1994 Date of Judgment:1994-12-11 Reported As: 1995 SCMR 387 Result: Order accordingly
JUDGMENT
JUDGMENT ' SAIDUZZAMAN SIDDIQUI, J.---The abovementioned two criminal petitions for leave to appeal are filed by one Sikandar A. Karim, Managing Director of Messrs Mehran Motor Car Company, Karachi, a company engaged in the automobile business, seeking leave to appeal against the order of a learned Judge in Chambers of High Court of Sindh dated 1-11-1994, refusing to admit the petitioner to bail in a case registered against him along with several others under section 156(1), (8) and (14) of the Customs Act, 1969 read with section 5(2) of the Prevention of Corruption Act, 1947 (F.I.R. No, 24 of 1994). For the sake of convenience, I will hereinafter refer Mehran Motor Car Company, Karachi; the Customs Act, 1969 and Prevention of Corruption Act, 1947 as 'MMCC', 'the Act' and 'the Act of 1947', respectively. ' The abovementioned petitions came up for hearing before us on 7-12-1994, when after hearing the learned counsel for the petitioner, we directed issuance of notices to Deputy Attorney-General for Pakistan as well as Advocate-General, Sindh, for 11-12-1994. In response to this notice, Mr. M. Nawaz Abbasi, A.S.C. Appeared for the Deputy Attorney-General (DA.G.) but no appearance was made on behalf of the Advocate-General, Sindh. We, accordingly, heard at length the learned counsel for the petitioner and Mr. M. Nawaz Abbasi for D.A.-G., converted the above petitions into appeals, allowed them and admitted the petitioner to bail in the sum of Rs, 10 million each in the two cases with one surety and P.R. In the like amount to the satisfaction of 'Nazi? High Court of Sindh, by a short order dated 11-12-1994. The following are detailed reasons for our short order. ' The relevant facts for disposal of the above appeals are, that. Federal Investigation Agency (F.I.A.) while conducting enquiry No, 16 of 1993 came to know that MMCC in connivance with the officials of Karachi Port Trust (K.P.T.) deprived the Government exchequer to the tune of Rs,10,95,552 by
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evading payment of demurrage on three consignments of cars imported during the period between 14-5-1993 to 30-5-1993. The F.IA., accordingly, registered F.I.R. No, 7 of 1993 on 3-12-1993 against the appellant and others under section 409, P.P.C. Read with section 5(2) of the Act of 1947. The appellant surrendered for his arrest and was accordingly, taken into custody by the F.IA. On 5- 1-1994. The bail application moved by the appellant in the above case was allowed by a learned Judge in Chambers of High Court of Sindh (Muhammad Aslam Arain, T ) by order dated 25-1-1994. However, no sooner the appellant was released in the above case, he was re-arrested in F.I.R. No, 23 of 1994 registered against him alongwith several others on 21-9-1994 under section 409/420/468/471/34 P.P.C. Read with section 5(2) of the Act of 1947 and section 156(1), (14) and (77) of the Act. F.I.R. No, 23 of 1994 was the outcome of enquiry No, 812 of 1993 conducted by the F.IA. The allegations against the appellant in F.I.R. No, 23 of 1994 were that he over-invoiced the value of Daewoo Racer Taxi Cars, imported by him under Prime Minister's Public Transport Scheme with the help of foreign suppliers and later, on arrival of these vehicles in Pakistan he also managed to get the local sale price of these vehicles fixed at a price higher than its actual value through the connivance of concerned Government officials. It was further alleged that as a result of over invoicing of the value of imported cars, the appellant evaded taxes relating to Iqra Surcharge flood relief fund, import licences fee and income-tax. The bail application of appellant moved in the case (F.I.R. No, 23 of 1994) was also heard by Muhammad Aslam Arain, J. Who had heard and disposed of the earlier bail application (F.I.R. No, 7 of 1994) of the appellant. The learned Judge admitted the appellant to bail in this case (F.I.R. No, 23 of 1994) also by his order dated 6-3-1994. The learned Judge, however, while disposing of the latter bail application of appellant observed that in spite of his order admitting the appellant to bail in F.I.R. No, 7 of 1993 and receipt of release order by the jail authorities in time, the appellant was not released from the custody of jail before 4 p.m. And his release from jail was delayed until 9 p.m. When F.I.R. No, 23 of 1994 was registered against him and he was re-arrested on release in F.I.R. No, 23 of 1994. This act of the authorities was found by the learned Judge as mala fide. The appellant after grant of bail in the case (F.I.R. No, 23 of 1994) did not furnish surety and bail bond for his release and instead filed Constitution Petition No, 648 of 1994 with the prayer that the F.IA. Authorities may be directed to disclose if there was any other case pending against the appellant. This Constitution petition was disposed of by the Court on 11- 5-1994, on the statement of the learned DA.G. That at present there was only one more enquiry No, 11 of 1994 pending against the appellant. The appellant then filed a Criminal Miscellaneous Application No, 340 of 1994 under section 561-A, Cr.P.C. Before the High Court of Sindh with the prayers that the appellant upon furnishing surety in the case (F.I.R. No, 23 of 1994) be directed to be released from the Court premises; he may be granted bail in the case registered against him vide enquiry No, 11 of 1994 and the F.IA. May be directed not to arrest the appellant without intimating the Court in future cases. This application was also heard by Muhammad Aslam Arain, J., and was rejected by order dated 28-5-1994. The petitioner, thereafter, furnished surety in the case (F.I.R. No, 23 of 1994) on 16-6-1994, but immediately on his release in that case he was again arrested in F.I.R. No, 24 of 1994 registered on 16-6-1994. As the appellant was charged in F.I.R. No, 24 of 1994 with offences both under the Act as well as the Act of 1947, he filed two separate applications for his release on bail, one before the Special Judge Customs and Taxations, Karachi, and the other before Special Judge (Central-I), Karachi. Both the applications were rejected. The appellant thereafter, presented two separate bail applications before the High Court of Sindh, which were beard by Shafi Muhammadi, J., who had in the meantime succeeded Aslam Arain, J., as the Special Appellate Court of Sindh. The learned Judge by a laboured judgment spread over almost 54 typed pages reached the conclusion that the appellant being accused of the offences which fell in the category of crimes against the Society and these offences being also covered by the prohibitory clause of section 497, Cr.P.C., he was not entitled to the concession of bail and accordingly, rejected both the
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applications for grant of bail. The case-law cited before the learned Judge in Chambers including judgments from this Court were distinguished and it was observed that judgments rendered by superior Courts on matters of bail were conflicting in nature which encouraged corruption at the lower tier of judiciary. Comments were also made on the two earlier orders passed by Muhammad Aslam Arain, J., on the bail applications of appellant. We will separately deal in this judgment with these and other observations made by the learned Judge in Chambers in the impugned judgment, as these comments and observations were neither called for nor necessary for decision of the bail applications by the learned Judge. ' The learned counsel for the appellant contended that the allegations made against the appellant at best disclose a case under section 156(1) and (14) of the Act read with section 32 of the Act for which maximum punishment is three years while the appellant is in continuous custody since January 1994. Regarding allegation of smuggling against the appellant under section 156(1) and (8) of the Act and application of section 5(2) of the Act of 1947 in the case, the learned counsel for the 'appellant contended that no offence under section 156(1) and (8) of the Act is made out against the appellant on the basis of the material so far collected by the prosecution. With regard to the alleged recovery of alleged smuggled articles shown by the F.IA. From the show room of appellant, the learned counsel for the appellant contended that firstly, these recoveries were made while the appellant was in custody in jail, and secondly, the items shown to have been recovered from the display centre of appellant were those which were lawfully imported by the appellant. The learned counsel for the appellant very vehemently argued that the appellant has been detained in custody mala fidely for reasons not connected with any offence alleged to have been committed by him. Mr. M. Nawaz Abbasi, the learned counsel appearing for DA.-G. Supported the judgment of the High Court and contended that after registration of the F.I.R. No, 24 of 1994, certain recoveries have been effected from the show room belonging to the appellant which fully established the smuggling done by the appellant and therefore, he is not entitled to bail in the cases as the offence under section 156(1) and (8) of the Act is punishable for a term which extends to 14 years. Mr. M. Nawaz Abbasi also contended that at this stage the Court cannot take into consideration the invoices produced by the appellant to show that the items recovered by F.IA. From his show room, were validly imported. According to Mr. M. Nawaz Abbasi, these documents could be considered at the trial by the trial Court. We may mention here that these invoices were produced before the learned Judge in Chambers but he refused to look into them on the ground that this exercise is to be undertaken exclusively by the trial Court and not by the Court hearing bail application of the appellant. After hearing the learned counsel for the appellant and Mr. M. Nawaz Abbasi for DA.-G. At length we are of the view that the appellant is entitled to the grant of bail in the case registered against him vide F.I.R. No, 24 of 1994. ' A tentative assessm ent of the allegations against the appellant in F.I.R. No, 24 of 1994 shows that the first offence alleged against him was that he imported automobile spare parts in part shipments under five different letters of credit, opened between the period from 5-12-1992 to 22-5- 1993 and with the intention to evade payment of full customs duty on these consignments, he allegedly misdeclared the value of these consignments 30% less than their actual value. It is also alleged in the F.I.R. That on arrival of these consignments at K.P.T., the bill of entry for clearance of these consignments was also filed by the appellant through his clearing agent declaring under invoiced value of these consignments and got them cleared by evading payment of full customs duty payable on the actual value of these imports. The total amount of customs duty and other taxes alleged to have been thus evaded by the appellant in this manner was stated to be Rs,1,13,88,573. The second offence alleged against the appellant was that he calendestinely smuggled a good number of auto parts in the trunks of 200 Daewoo Racer Taxis imported by him in the year 1992. No details or description of parts allegedly smuggled by the appellant in the tranks of
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200 Daewoo Racer Taxis, are mentioned in the F.I.R. However, it is claimed that a few smuggled parts have been recovered subsequently, while the appellant was in jail, from the display centre belonging to the appellant on the pointation of one Rizwan Majeed, Senior Manager Parts and Services MMCC. The third and the last offence alleged against the appellant in the F.I.R. Relates to connivance between the appellant and the concerned Government officials getting the under- invoiced goods and the allegedly concealed auto parts in the trunks of 200 Daewoo Taxis cleared from the customs without payment of proper custom duty and other charges thereon. ' Section 32 of the Act provides that if a person in connection with any matter of customs makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document or makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer, knowing or having reason to believe that such document or statement is false in any material particular, he shall be guilty of an offence under this section. The punishment for making false declaration under section 32 ibid is provided under section 156(1), (14) of the Act which reads as follows:- "14. If any person commits an offence under section 32.--Such person shall be liable to penalty not exceeding twenty-five thousand rupees or three times the value of the goods in respect of which such offence is committed; whichever be greater; and such goods shall also be liable to confiscation; and upon conviction by a Special Judge, he shall further be liable to imprisonment for a term not exceeding three years, or to fine, or to both." It is quite clear from reading of the above provisions that upon conviction of an accused by a Special Judge for an offence under section 32 of the Act, the maximum punishment to be awarded is only three years or fine or both in addition to a penalty which may extend to rupees twenty-five thousand or three times the value of the goods in respect of which the offence is committed whichever is greater. It is, therefore, quite clear that offence under clause 14 of section 156 of the Act does not fall within the prohibitory clause of section 497, Cr.P.C. From reading of the F.I.R., it is quite clear that all the documents relating to under invoicing of the goods have been collected by the F.I.A. Which are in their possession. The appellant who is in custody since January 1994 was arrested in this case on 16-6-1994 and since then he is in custody. The learned Judge in Chambers while declining to admit the appellant to bail in respect of offence falling under section 156(1)(14) of the Act reasoned as follows:- "15. The next contention of the learned counsel was that an offence under section 156 (1) (14) read with its section 32 of the Custom Act is not exclusively punishable with 3 years, but, the punishment provided is "3 years or fine or both". The punishment is not "with fine". Therefore, the bar contained in section 497 (1), Cr.P.C. Is not attracted and "bail in such cases is a rule and refusal an exception". I have discussed this point in paras. 9 to 12 in detail and have also drawn a line of demarcation between the two categories of offence i,e. Offences affecting a society at large are to be put on one side of that line and the offences affecting the individuals are to be placed on the other side of line. Have explained the difference between the nature of offences. With reference to the sentence of an offence under section 123-B, P.P.C. (defiling of National Flag of Pakistan), it is evident that the said offence falls out of the clutches of bar contained in section 497(1), Cr.P.C. But grant of bail to such persons means to injure the feelings of whole nations besides encouraging such persons to repeat the same offence. Hence, this offence as well as such other offences, according to my point of view, fall within the cradle of "exceptions" and refusal of bail in such offences should be a rule and grant of bail be an exception. The same principle can be applied even in all the cases of those persons who are mentioned in the first proviso of section 497 (1), Cr.P.C. ' If any woman or a person of tender-age is found involved in an offence which affects the individuals then the discretion, due to the words "may" used in first proviso of section 497(1), Cr.P.C.,
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can be exercised in favour of the accused but if the offence of such person does shatter the peace of society, then discretion may not be exercised in his favour. For example, if a boy of tender age is found involved in transportation of heroin power as a carrier, he may not be given the concession of bail under the pretext that his case is covered by 1st proviso of section 497(1), Cr.P.C. ' However, there are always exceptions within exceptions which can be explained with the help of following incidents belonging to the period of Caliph Umar: (i) Certain slaves thieved and slaughtered a female camel After their arrest their case came before the Caliph for execution of punishment which, in accordance to the Islamic Law was amputation of right hand of every thief. The Caliph came to know that the slaves were very hungry and they committed the said crime for their survival. The Caliph put the whole responsibility upon the master of slaves namely 'Hatib' who had kept them so hungry that they committed a crime which was affecting the sole society and was punishable under the Hudood Ordinance. No sentence of Hadd was awarded to the thieves but Hatib was fined to pay an amount equal to twice the value of the camel. (Sunnan Baihqi). Hence it is clear that the sentence of Hadd cannot be imposed in presence of causes for committing that offence. ' It has been reported in several books, that on account of famine, during the period of Caliph Umar, the sentences of amputation of hand was suspended till such time the effects of famine were prevailing over the society. It was reported in 'Abdul Razzaq' that one woman found herself close to death due to hunger. She begged a shepherd to give food but it was given to her when she committed intercourse with that man after receiving three bowls of "dates". Allegation against her was levelled that she committed Zina (adultery). However the defence view was that it can be presumed marriage on payment of dower in the shape of food given by the man to the lady. Thus there were two possibilities. One favouring the prosecution and the other favouring the accused. Caliph Umar accepted the possibility which favoured the accused. ' The purpose of giving these examples as exceptions within exemptions is nothing but to point out that if an accused commits any crime on account of unavoidable circumstances, then he can be letted from the charges levelled against him and if there are not such circumstances, then such person should not be spared. ' The applicant in this case is a rich-man. Money was not problem for him. He had not committed any offence, as alleged against him, on account of unavoidable circumstances. What appears from the facts, as collected by the prosecution, is that it was only lust for collecting wealth at the cost of livelihood of poverty-stricken people under the false pretext of "Love to serve the unemployed by providing them taxis", on payment of some percentage of the total amount and spare parts at lower price." ' We are unable to accept the above view taken by the learned Judge. The reasonings given by the learned Judge in declining bail to the appellant in the case under section 156(1) (14) of the Act besides being artificial are contrary to the settled principles laid down by this Court for grant of bail in such cases. The comparison by the learned Judge between offences under section 123-B P.P.C. And offences relating to drug-trafficking on the one hand and the offence of under-invoicing alleged against the appellant on the other hand was totally misconceived. The offence under section 123-B, P.P.C. Is described in Schedule II of the Code of Criminal Procedure, as non-bailable and non-compoundable offence although the punishment prescribed is only 3 years of either description or fine or both. Similarly, the punishment prescribed for carrying and transportation of heroin is life imprisonment. Therefore, both these offences fall within prohibitory clause of section 497, Cr.P.C. Similarly mention of the incident of theft by some slaves and committing of Zina by a woman during reign of Hazrat Umar (RA.), while the country was in grip of famine, were totally irrelevant. In the same way, the observations of the learned Judge that the appellant was a rich man and therefore, the offence was committed by him not out of any compulsive circumstances
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but for his lust for collecting wealth at the cost of livelihood of poverty-stircken people under the pretext of "Love to serve the unemployed by providing them taxis" were totally uncalled for and extraneous to the issue before the learned Judge. We need not stress here, that while deciding a bail application r the Court should avoid making observations which may prejudice the accused in his defence at the trial of the case. The above observations could be easily avoided by the learned Judge as they were neither necessary nor germane to the decision of bail application of the appellant. ' In the case of Wali Muhammad v. State (1969 SCMR 233), the petitioner who was tried under sections 167(81), 162 and 212 of the Act was accused of smuggling huge quantity of gold valued at rupees one crore. The offence under the relevant provisions was punishable with imprisonment of 6 years apart from the fine. The High Court refused to enlarge the accused on bail on the ground that there were strong and substantial reasons to believe that the accused in that case was prima facie connected with the commission of the offence and it was likely that he might tamper with the evidence on being released on bail. The petitioner who was admitted to interim bail by this Court was allowed to continue on bail and the following observations were made with regard to principle for grant of bail in such cases:-- "Leave to appeal was granted by this Court on the 2nd of October 1967, on the ground that the evidence against the petitioner was still to be evaluated and that as a general rule on a charge of the kind made in this case not involving a sentence of death or transportation for life, bail should ordinarily be allowed disregarding the grounds of the seriousness or anti-social nature of the offence unless there be strong grounds, in the shape of evidence for the belief that he is guilty. Ad interim bail was allowed to the petitioner leaving it open to the prosecution to move for its reconsideration presenting before the Court all the material in their possession including the confessional statements which had allegedly been made by some of the co-accused persons. The State did not apply for cancellation of the interim bail and no circumstance has been pointed out by the learned counsel for the respondent to justify the cancellation of the petitioner's bail at this stage. We will accept this appeal and direct that the petitioner shall continue to remain on bail already furnished by him under orders of this Court during the pendency of the case. It will, however, be open to the prosecution to move the High Court for the cancellation of the petitioner's bail on some fresh ground, if that step be considered justified." ' In Criminal Petition No, 56-K (Tariq Bashir etc. v. State), decided on 31-8-1994, (PLD 1995 SC 34) a Bench of this Court while reiterating the principles for grant of bail in cases involving bailable and non-bailable offences, made the following observations:-- "It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. Divides non-bailable offences into two categories i,e., (i) offences punishable with death, imprisonment for life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example-- (a) where there is likelihood of absconding of the accused; (b) where there is apprehension of the accused tampering with the prosecution evidence; (c) where there is danger of the offence being repeated if the accused is released on bail; and (d) where the accused is a previous convict. ' We know that many under-trial accused of bailable offences and preventive offences i,e., offences under sections 107, 109 and 110, Cr.P.C. Have been sent to/confined in jails for want of surety bonds although they, at the discretion of the Court, could be released on execution by them of bond
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(personal bond) without surety for their appearance before the Court. We also fmd that even in petty cases the Courts/subordinate Courts have remanded the accused to jail on their failure…
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