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Petitioner: RAZZAK BABA VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Syed Deedar Hussain Shah Title: RAZZAK BABA vs THE STATE Case No.: Special Criminal Bail Applications Nos. 7, 9, 12, 16 and 17 of 1996 Date of Judgment:1996-04-11 Reported As: 1996 P Cr. L J 1530 Result: Bail allowed.
Judgment ' I intend to dispose of Special Criminal Bail Applications Nos.7, 9, 12, 16 and 17 of 1996 by this common order as these applications are outcome of the same F.I.R. Moreover facts and case-law involved in all these applications are common and same. 2. Brief facts of the prosecution are that "on 30-5-1995 complainant Zahid Hussain Khan, E.O. Director-General of Intelligence and Investigation (Customs and Excise), Karachi, lodged F.I.R. Alleging therein that the staff of the Director-General, Intelligence and Investigation (Customs and Excise) received a credible information that the syndicate of smugglers of electronics, spices, compressors, zips, etc. Has with a novel modus operandi smuggled video/audio casette and parts thereof, small/large cardamom, dyes, zips, tops, compressors, satellite receiver from Dubai under the garb of import of "pulses" which is a duty and sales tax free item. The conspirators, abators. Involved with active connivance in league with each other were notified as Hafeez Gul.Kapoor who was master mind, planner, executor, of the .Racket with the partnership of Muhammad Raza who booked the consignments of contraband goods from abroad and also managed to prepare forged, fictitious, fake, bogus import documents and bills of entry whereas Razaq Baba was responsible for the sale of audiolvideo cassette parts in the local market. The contraband goods smuggled from Dubai to Pakistan dumped at Dubai, imported from Hongkong, Korea and Japan, were also arranged by Razaq Baba. According to information the clearance of contraband goods under duty and sales tax free items was managed by the assistance of Qasim Paracha and Ghulam Abbas of Hafeez Gul Kapoor on a bogus Clearing Agency namely Quick Agency having C.H.A.L. No,794. The manipulators have managed to transfer huge amount of foreign exchange by opening the letter of credits on the very higher value whereas the fabricated invoices produced before the custom authorities were in accordance with the normal valuation of pulses, Hafeez Gul
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Kapoor, Muhammad Raza and Razaq Baba to achieve the required goods have established two firms in the name and style of Messrs M.R. Traders and Shahzad Impex apart from other firms for their ulterior motive and nefarious activities to deprive the Government of Pakistan of its legitimate revenue. ' In pursuance of the information and to verify the veracity of the information the details of imports of M.R. Traders, and Shahzad Impex, cleared by Quick Agency C.H.A.L. No,794 were obtained from Custom House, Karachi, specially the consignments of pulses imported from Dubai. It was revealed that two consignments were imported vide (i) I.G.M. No,701/74, dated 10-4-1994, Index No, 89, per S.S. Manora Bay, Machine No,87842, dated 17-4-1994,. Cash No,4361, dated 17-4-1994, with marks and Nos. Nil for 4 x 20 ft. Containers containing 1,000 bags of pulses "Yellow split" 80,000 Kgs., L.C. No,94/179/K.J.B.B./0143, dated 21-3-1994 imported in the name of Shahzad Impex, Karachi (ii) I.G.M. No,701/94, dated 10-4-1994 Index No,90 per S.S. Manora Bay. Machine No,87843, dated 17-4-1994, marks and Nos. Nil for 7 x 20 ft. Containers containing 4666 bags of pulses "Green Moong whole" L.C. No,B.B.L./N.C.K./S/0146/94, dated 5-3-1994 imported in the name of M.R. Traders, Karachi both the consignments were cleared and processed by the fabricatedly established Clearing Agency namely Quick Agency, C.H.A.L. No,794. ' During secret investigation it was also revealed that the licence No,C.H.A.L. No,794 was actually allotted to Messrs Zahid Masud and Company by the licensing authority and not to Quick Agencies on the basis of secret investigation it was transpired that Messrs M.R. Traders is established by Muhammad Raza an active member of the recket and whereas Shahzad Impex was established by Hafeez Kapoor in the name of his servant Shahzad Anwar. The investigation was further broadened to verify the genuineness of the L.Ws. As mentioned in the aforesaid two bills of entry. Both the L.Cs. Viz (i) 94/179/K.J.B.B./0143, dated 21-3-1994 (2) B.B.L./N.C.K./S/0146/94, dated 5-3-1994 were established at Allied Bank Ltd., Jodia Bazar and Bolan Bank, New Challi respectively. Hafeez Gul Kapoor has guaranteed the L.C. Of Shahzad Impex and operating the account of M.R. Traders. ' It was gathered during investigation that the L.C. No,B.B./H.C.K./S/0146, dated 5-3-1994 was established against U.S. Dollar 93 per Metric Ton G&F, Karachi for 139.980 M.T. Amounting to U.S. Dollar 71,250.02 whereas U.S. Dollar 375 P.M.T. Have been declared in the invoice presented before customs thereby U.S. Dollars 18,616 has been over invoiced and misdeclared. Similarly the L.C. No,94/179/K.J.B.B./0143, dated 21-3-1994 was established against U.S. Dollar 2,175 P.M.T. C&F Karachi for 80 M. Tons amounting to U.S. Dollar 1,74,000 whereas U.S. Dollar 450 P.M.T. Has been declared in the invoice presented before the customs thereby defrauded, over invoiced and misdeclared U.S. Dollars 1,38,000 total amount of Pak. Rs.48,12,809 is worked out in both the LeCs. ' On the basis of documentary evidence collected, the staff of the Directorate accelerated their mobilization and located the go down situated at P-115/A-73, Gul Bai known as Khas Khas go down wherein the 11 containers of two consignments were stuffed. The investigation conducted so far it was transpired that the go down was rented to Hafeez Gul Kapoor. It was also evident on record that the contraband goods viz. Video/audio cassette parts, species, zip, dyes, supplies, compressors etc. Were concealed in bags identical to the bags of pulses were segregated and dumped/stored in another godown situated at spinner weigh bridge, opposite standard weigh bridge, Gulbai from where trivirant of unholy alliance i,e, Hafeez Gul Kapoor, Muhammad Raza and Razak Baba illegally removed the smuggled goods for sale in the open market. Hafeez Gul Kapoor, Muhammad Raza and Razak Baba being influenced with the clearing agent Quick Deal C.H.A.L. No,749 owned by Aftab Ahmed, who is also tenant of Hafeez Gul Kapoor and residing at the address of Hafeez Gull Kapoor, had established a bogus firm in the name and style of Quick Agency with C.H.A.L. No,794. It was also evident that during process and clearance of the consignment the K.P.T. Authorities had stopped the consignment at D.D. Section for delivery unless the owner of the agency would acknowledge the onus of the clearing agency. In this regard Hafeez
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Gul Kapoor contacted Aftab Ahmed of Quick Deal to solve his problem for safe clearance, as Aftab was his tenant, he was forced to pretend to be the owner to the Quick Agency and Hafeez Gul Kapoor and Muhammad Raza got cleared the consignments. ' After a lengthy painful investigation, Hafeez Gul Kapoor was picked up to ascertain his involvement in the commission of offence. On confrontation with the documentary evidence and statement of witnesses it was confirmed that Hafeez Gul Kapoor was deeply involved in the heinous crime. Hafeez Gul Kapoor son of Gul Muhammad Kapoor was arrested and notice under section 171 of the Customs Act, 1969 was served upon him. On the potation of under arrest accused Hafeez Gul Kapoor his partner, associate and active member of the racket Muhammad Raza son of Roshan Ali has been apprehended and his involvement has been further confirmed by acknowledging the preparation of forged import documents and bills of entry namely "Quick Agency" having C.H.A.L. No,794 and clearance of contraband goods through Qasim Paracha and Ghulam Abbas. Being satisfied with the evidence collected so far Muhammad Raza son of Roshan Ali has been arrested and notice under section 171 of the Customs Act, 1969 was served upon him. The allegation of the prosecution is that the third and important member of the racket who played a vital role in smuggling of the contraband goods and had travelled frequently from Pakistan to Dubai/Singapore/Hongkong/Korea and Japan to manage and facilitate the inflow of smuggled goods, is Razaq Baba. 3. After usual investigation, interim challan was submitted in the Court on 13-6-1995 and final challan was submitted in the trial Court on 3-11-1995, in which Sardar Mahmood, Principal Appraiser, Custom House, Karachi and Muhammad Amin, the then officiating Appraising Officer, Custom House, Karachi, have been shown absconder. 4. Learned counsel for the accused/applicants have contended that case against the accused/applicants is false and fabricated one; that the trial Court has not appreciated that there is no material evidence on record with the prosecution to connect the applicants with the commission of the alleged offence; that if the case of the prosecution is believed, to be a goSpel truth then the provisions of section 32 of the Customs Act, 1969, would hardly be attracted and the punishment prescribed therein is imprisonment not exceeding 3 years or fine or both and also penalty not exceeding Rs.25,000 or the three times the value of the goods in respect of which such offence is committed; that there is no material evidence regarding attempting to smuggle the goods as alleged; that the applicant Razaq Baba is a manufacturer of video cassettes and the material seized from his factory by the prosecution, was legally purchased and legally imported by his company and the goods were audited by the concerned authorities; that the raid, however, and the notice served to his Chowkidar in his absence was in violation of mandatory provisions of sections 162 and 163 of the Customs Act, 1969; that complainant Zahid Hussain Khan, Examining Officer, Directorate of Intelligence and Investigation (Customs and Excise) was not an officer of the Customs and as such he was not empowered under sections 161 and 171 of the Customs Act, 1969 in terms of Federal Government's Notification S.R.0.388(1)/82, dated 22-4-1982 regarding appointing of officers of the Directorate of Intelligence and Investigation (Customs and Excise) to discharge the duties of the Customs Officers. Hence registration of case and arrest made by the said officer was illegal and without lawful authority; that the applicants are respectable and law-abiding citizens of Pakistan and businessm en and do pay Government taxes and charges. 5. Mr. Rana Muhammad Shamim, learned counsel for applicant in Special Criminal Bail No,7 of 1996 has contended that applicant Razzak Baba had filed Criminal Miscellaneous Application No,12 of 1996 under section 561-A, Cr.P.C. For quashment of the proceedings of Case No,142 of 1995, pending before the Special Customs and Taxation Judge, Karachi. Mr. Rana Muhammad Shamim has produced original passport of the applicant Razzak Baba in Court during the course of hearing of the bail application, which was returned to him after keeping Photostat copy of the same, which
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shows that the applicant at the time of alleged incident had never been to Seoul, Korea and Dubai. Mr. Rana Muhammad Shamim has also filed Photostat copy of License issued by the Chief Controller of Imports and Exports, Government of Pakistan, in the name of Messrs Horizon Industries and also Photostat copy of L-1 License in the name of Messrs.' Horizon Industries to conduct his/their business in the premises situated at Block-IV, Commercial Area, Nazimabad No,4, Karachi for the manufacture and dealing in goods (assembly of video cassette). He has also produced Photostat copy of Bill of Entry for magnetic tape, showing therein payment made towards Government charges under various heads. He has also filed Photostat copies of Register of Suppliers and Sales, duty stamped and signed by the Deputy Superintendent, Central Excise and Sales Tax, Liaquatabad Circle, Karachi, certifying that the register contained 100 pages of Horizon Industries with Registration No,02-08-8523-001-91 from July, 1993. In this register the taxes paid to the Government's account are mentioned. Photostat copies of Transport Permit and Sales Tax Invoice have also been filed by him. Copies of these documents were supplied by the learned counsel for applicant to the learned D.A.-G. Mr. Roshan Essani, in Court, in rebuttal except challan and copies of statements recorded by the prosecution of the witnesses during investigation and copy of the letter of Sheraz Corporation, copies of the letters of credit and other import documents and copy of Mashirnama and copy of statement under section 168, Customs Act, regarding search of the factory, have been filed. 6. Mr. Zahid Khan, learned counsel for applicant Qasim Piracha in Special Criminal Bail No,09 of 1996, has contended that admittedly the applicant is neither importer nor master-mind, planner or clearing agent and no role has been assigned to the applicant except an al1egati4n that clearance was managed by applicant Qasim Paracha and other co-accused Ghulam Abbas; that according to the prosecution's case preparation of the forged import documents and bill of entry namely Quick Agency has been managed by Muhammad Raza son of Roshan Ali and the applicant can by no stretch of imagination be saddled with the liability of clearance of the alleged consignment in the absence of any documentary proof in that respect; that the applicant has no concern with the clearing agency whose bills of entries were filed for seeking clearance; that applicant's signatures do not appear on any of the documents; that after investigation on 13-6-1995 interim challan was submitted before this Honourable Court and yet the name of the applicant did not appear in the interim challan. 7. According to Mr. Muhammad Roshan Essani, learned D.A.-G. Statements of Murtaza G. Anayyat, Director of Friend Shipping Company, Ghulam Kazim, Import Manager of Friend Shipping Company, Aftab Ahmed, owner of clearing agency Messrs Quick Deal, Haji Arif (P.W.) Sariaullah Khan (P.W.) and Naveed Ahmed of Messrs B.S.I. Singapore (P.W), are recorded; who implicated the accused Qasim Piracha. According to the learned D.A.-G. Letter from Deputy Collector, regarding forged and bogus clearing agency, on which alleged 11 containers were cleared, has also been collected by the prosecution. 8. Mr. Sohail Muzaffar, learned counsel for applicant Hafeez Gul Kapoor in Special Criminal Bail Nos.12 of 1996 and 17 of 1996, has contended that the entire case against the applicant is based on assumptions, presumptions and suppositions; that the applicant is neither an importer nor a Beneficiary and has nothing to do with the alleged crime; that having cited Shahzad Anwar as an absconder the entire case of the prosecution against the applicant stands disproved by their own admissions; that the offence for which the applicant is charged is punishable under section 32 of the Customs Act, 1969 and the maximum punishment provided is three years or fine or both. 9. Mr. Muhammad Roshan Essani, learned D.A.-G. Has contended that final challan is submitted against the accused and the prosecution has collected evidence in the shape of certificate from Bolan Bank Limited, statement of Syed Zahid Hussain, Foreign Exchange Officer of Allied Bank of Pakistan, copy of fake invoice, indicating price US $ 450/MT, copy of fake Invoice No,916363,
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indicating price US $ 375/MT, copy of bill of entry IGM No,701/94, dated 10-4-1994 Index No,89 filed by fake clearing agent Messrs Quick Agency, copy of bill of entry IGM No,701/94, dated 10-4-1994, copies of Bank document invoice (original bill of lading etc. Of L.C. No,BBL/NCK/S/0146/94 of M.R. Traders, copy of original bank documents invoice in original Bill of Lading etc. Of L.C.94/179/KJBB/0143 of Messrs Shahzad Impex, copy of lease agreement showing that go down wherein 11 containers were unloaded was rented to accused Hafeez Gul Kapoor, certificate of Plant Protection Department, confirming that certificate submitted by Messrs.' M.R. Traders and Shahzad Impex are not genuine; and the statements of P.Ws., referred hereinabove in the earlier part of this order. He has further contended that the accused is not entitled to be released on bail; and that bail application is also rejected by this Court as well as by the Honorable Supreme Court during investigation. 10. Special Criminal Bail Application No,17 of 1996 is also outcome of the same F.I.R. And same allegation is repeated against the accused/applicant. 11. Mrs. Ismat Mehdi, learned counsel for the accused/applicant in Special Criminal Bail Application No,16 of 1996, has contended that the applicant is innocent and has been roped in this case falsely by the agency; that the prosecution as yet is not certain whether the case spelt out in the F.I.R. Is a case of smuggling, possession of smu ggled goods or miss declaration which makes it a case of further enquiry; that the applicant is neither the owner of any importing firm nor has signed any other document in relation to the transaction allegedly carried out in the challan; that there is inordinate delay of 13 months in the lodging of the F.I.R. Which caused serious doubts in the case, especially when F.I.R. Had been registered after investigation. 12. Mr. Muhammad Roshan Essani, learned D.A.-G. Has contended that the accused is finally challenged by the prosecution and as such he is not entitled to be released on bail. 13. Following case-law is cited by the learned counsel for accused/applicants:-- (1) The Collector of Central Excise and Land Customs, West Zone, Chittagong v. Imdad Ali 1969 SCM R 708. ' The dictum of this authority is as under:-- "Sea Customs Act (VIII of 1878), Ss.39 & 167, items (8) and (9-B)---Untruth of importers' declared price in invoice tried to be established by a pro forma (sent by Deputy High Commissioner of Pakistan) of average wholesale rates said to be prevalent in country from which goods imported-- -Neither pro forma nor its covering letter disclosing how and from what source rates were obtained---Such pro forma of no value and valuation put by Customs Authorities on basis of such pro forma, held, arbitrary and fanciful being based on no evidence at all---Onus lies on Customs Authorities to prove declaration made to be untrue." (2) Case of Manzoor and 4 others v. The State PLD 1972 SC 81: In this authority the Honorable Supreme Court has observed as under:--"It is obviously not correct to depend on the ipse dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. As repeatedly held by this Court, bail in non-boilable case is a matter within the discretion of the Courts, which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the 'prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence."
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' This authority, in my humble opinion is not relevant and not applicable so far the facts and circumstances of the present case are involved. (3) Case of Khairuddin and 2 others v. The State 1974 t'Cr.LJ 219: In this authority the learned Judge has observed as follows:-- "It will thus appear from the evidence of all the four prosecution witnesses on which the whole case is based that they do not even properly describe what alleged stolen property was secured from each of the applicants. However, the fact. Still remains that no property whatever was produced before the trial Court and as such, in my opinion the applicants are entitled to the benefit of doubt when the alleged stolen property said to have been recovered from the applicants has not been produced before the trial Court. The Assistant Advocate-General who appeared for the prosecution also very fairly and candidly opined that the applicants were entitled to the benefit of doubt in the circumstances of this case, ' Accordingly all the .Applicants are given the benefit of doubt and acquitted of the offences for which they have been convicted." ' In the above cited case the applicants had approached the High Court after their conviction was recorded by the trial Court and that property was not produced by the prosecution and the applicants were acquitted. In my humble opinion this authority is also different and distinguishable so far the facts of the case in hand are concerned. (4) Case of Munir Muhammad and 3 others v. The State 1976 SCM R 145: ' D.B. Of the Honorable Supreme Court in this authority has observed as under:-- "Customs authorities, as appearing from notice issued by them, not nvoking item (8) involving sentence of 10 years' on present record, possible of offence falling under item (89) punishable with only 6 years' R.I.---Appellants. In Custody for some months without any prosecution evidence having been recorded---Appellant released on bail." (5) Case of Muhammad Fazal v. The State 1979 SCM R 9: Full Bench of Honourable Supreme Court in this authority has held as under:- "Without going into the merits of the case and the various rulings mentioned in the petition for leave to appeal requiring one consideration and interpretation, we think that the petitioner should be released on, bail on the principle of requirement of consistency in the same case and for the similar reason that the co-accused to whom a rois; similar to that of the petitioner was attributed had been so released by anotner learned Judge of the same High Court. This petition is, accordingly, converted into an appeal and disposed of as such. The petitioner is allowed bail." (6) Case of Muhammad Sharif v. The State 1982 PCr.LJ 1067: The dictum of this authority is as follows:-- "----S. 156(1), (8) read with S.178---Smuggling---Recovery of smuggled goods---Case property neither produced nor identified by witnesses in presence of accused---Conviction and sentence set aside and case remanded for trial." ' In the- above-cited matter the appellants had approached the Lahore High Court after conviction by the trial Court. Whereas here the matter is for deciding the bail application. In my humble opinion this authority is not applicable to the present case. (7) Muhammad Ramzan v. Zafar Ullah and another 1986 SCM R 1380: D.B. Of the Honourable Supreme Court in this authority has held as follows:-- "After hearing the learned counsel we feel that prima facie, at this stage, the case of the petitioner is not distinguishable from that of others to whom bail has been allowed. No useful purpose would be served if the bail of Zafar Ullah Khan respondent is cancelled on any technical ground because after arrest he would again be allowed bail on the ground that similarly placed other accused are already on bail. We, therefore, in the circumstances of this case, do not consider it a fit case for grant of leave to appeal. This petition accordingly, is dismissed."
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' In my humble view there is no applicability in the cited authority. (8) Case of Collector of Customs (Preventive) v. Muhammad Mahfooz PLD 1991 SC 630: ' In this matter the Honourable Supreme Court has granted leave to appeal to examine the scope and powers of Customs Authorities under section 163, Customs Act, 1969 and on the point of interpretation of various Notifications .Issued by Board of Revenue under section 3, Customs Act, 1969. (9) Case of Abdul Hay-uz-Zafar v. The State 1983 PCr.LJ 2010: In this authority the Honorable Judge has held as under:-- "I have considered the arguments of the learned counsel for both the parties and find that the amount involved is of course sufficiently large and this fact by itself would be no ground for refusing bail particularly when the investigation is complete, except that the report of the handwriting expert is awaited. There is some force in the contention of the learned counsel that the proposed evidence to be adduced at the trial comprised documentary evidence and tampering with the same is not possible. As far as the question of prohibition contained in subsection (1) of section 497 is concerned, a Court is not supposed to keep in view only the maximum sentence provided under relevant law rather it is to be seen what punishment is likely…
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