2009 PLP 2355 (YLR)

M. BILAL KHAN, J.-- Zarshid son of Muhammad Ghulam and Ali Khan son of Shah Wall Khan, petitioners, by filing this petition seek post-arrest bail in case F.I.R.No.4 of 2008 dated 10-2-2008, registered with Police Station I & P call Directorate of Intelligence and Investi gation FBR, Lahore, for offences under sections 2(s), 156(1)(89), 157 and 178 of the Customs Act, 1969.

2. Precisely the allegation against the petitioners as unfurled in the F.I.R. registered at the instance of Muhammad Sarwar Intelligence Officer, was that on the day of occurrence i.e. 10-2-2008, on receipt of a secret information that a huge quantity of foreign smuggled cloth in Bus No. P-2686-HD would be brought to Lahore from Peshawar via Motorway, a raiding party headed by Mansab Khan Superintendent was constituted; after due formalities, the staff of the Customs Intelligence, 'Lahore laid a picket near Sherakot Motorway Exit Point, Niazi Chowk, Lahore at 15-00 hours the said bus had been hauled up and from necessary checking thereof foreign cloth from its boot/trunk was recovered; the bus was brought to the office of Customs Intelligence, Lahore and on formal search they found Indian fancy Sarhi cloth measuring 9468 yards as well as DVD and Cassette Players; Zarshid and Ali Khan the present petitioners were found in the bus; on demand none of the accused could provide any proof of valid import of the cloth and other smuggled items. Resultantly the instant F.I.R. had been registered.

3. The petitioners were arrested on 10-2-2008 and are in custody since. Their plea for post-arrest bail did not find favour with the Learned Special Judge Customs, Lahore who turned down their application vide order dated 18-3-2008. Having been unsuccessful in getting the requisite relief, the petitioners approached this Court by means of Crl. Miscellaneous. No.2685-B of 2008 which too had been dismissed as having been withdrawn on 21-4-2008. Hence this second petition.

4. After hearing the learned counsel for the parties, it has been observed that the role ascribed to the petitioners was that when the vehicle was checked they were allegedly found in possession of foreign cloth in heavy quantity and other smuggled items. The offences under section 156(1)(89) of the Customs Act, 1969 with which the petitioners have been charged entail maximum punishment of six years imprisonment and fine not exceeding ten times the value of such goods, is such the prohibitory clause of section 497(1), Cr.P.C. is not attracted. Section 2(s) is a definition clause whereas the rest of the offences charged relate to forfeiture of the vehicle and the seized commodity. The alleged smuggled cloth had been seized by the authorities concerned. It is yet to be determined during the trial whether the stuff recovered from the petitioners and other smuggled things fall within the definition of smuggled items and that whether the provisions of section 156(1) (89) of the Act ibid, are attracted. Even otherwise it also needs to be thrashed out as to whether the petitioners were merely driver and cleaner respectively or had any proprietary interest in the cloth. Trial has not even commenced although F.I.R. had been registered on 10-2-2008. Thus case of the petitioners falls within the contemplation of further inquiry entitling them to the concession of bail.

5. Resultantly this petition is allowed and the petitioners are admitted to post-arrest bail provided they furnish bail bonds in the sum of Rs.12,00,000 (Rupees twelve lac) each with two sureties each in the like amount to the satisfaction of the learned trial Court. H.B.T./Z-39/L Bail granted.