1994 P Cr (PLP)

By a short order, dated 9-3-1994, the applicant was granted bail and following are the reasons for the same:-- Applicant Muhammad Jamil son of Muhammad Dawood is detained in Crime No.P-474/93-JT under section 2(s) of the Customs Act, 1969 punishable under clause (8) of section 156(1) of the said Act. Allegations in the F.I.R., lodged by Abdul Majeed Shad, Senior Preventive Officer, Customs House Karachi, are, that during the intervening night of 21/22-23, 1993, the applicant who had arrived from Dubai was found carrying five (5) packages of his baggage. He was asked to declare if he was carrying any contraband goods when applicant replied in the negative. His statement was considered unsatisfactory and, therefore, in presence of independent Mashirs his baggage was subjected to examination which led to the recovery of five. (5) slabs of gold concealed in the cavity of the jacket in his suit-case and 35 slabs of gold in the back-wall of the suit-case. The forty (40) slabs were bearing the number

999. Applicant was arrested and after necessary investigation interim challan against him was submitted in the Court of Special Judge (Customs and Taxation), Karachi on 7-3-1993. First bail application moved on behalf of the applicant was dismissed by the learned Trial Court on 11-3-1993 and thereafter Special Criminal Bail Application No.63 of 1993 moved before this Court was also dismissed by a detailed order dated 21-10-1993. The second bail application was then moved in the trial Court which was also dismissed on 21-10-1993 and in these circumstances applicant has approached this Court for bail through this application. It is contended by applicant's learned Advocate that final challan in respect of the offence which was registered 'on 22-2-1993 has not been submitted as yet with the result that the trial of applicant could not even commence. It is also argued that although bail application cannot be pressed on the around of statutory delay in conclusion of trial yet if the delay is prima facie shocking and scandalous, bail can be granted by this Court in appropriate cases. In support of this learned Advocate has referred to the following judgments:-- (a) Muhammad Sadiq v. Muhammad Shafi and another 1973 S C M R 212, (b) Abdul Hamid and 3 others v. State 1976 S C M R 413, (c) Ghulam Haider and another v. State 1983 S C M R 790, (d) Sanam Shah and 10 others v. State 1986 P Cr. L J 2947, (e) Muhammad Shafique v. State 1992 P Cr. L J 1550, (f) Noor Ahmad v. State 1992 P Cr. L J 1841 and (g) Majid Latif v. State (Criminal Bail Application No. 1045 of 1993) 1994 M L D

967. Bail is vehemently opposed by the learned DA.-G. who has argued that one Muhammad Amjad who is an accomplice and is absconding has yet to be arrested and after his arrest the final challan be submitted before the trial Court and the trial Court would commence and conclude within the shortest possible time. It is also suggested by the learned DA.-G. that a direction may be given to the trial Court to bifurcate the case of present applicant and commence the trial against him. I have considered the above contentions raised by the learned counsel and have perused both the orders passed by the learned trial Court as well as the order of this Court passed in Special Criminal Bail Application No.63 of 1993 moved on behalf of the applicant. Although the applicant is charged with an offence of smuggling into Pakistan huge quantity of gold which offence is punishable to imprisonment for 14 years, he cannot be kept in custody without even the commencement of trial. By now applicant has been in jail for about 13 months and even the final challan has not been submitted against him. From the arguments of learned DA.-G. it is obvious that co-accused Muhammad Amjad who is at large may possibly be arrested in the near future whereafter final challan against applicant and the co-accused would be submitted and then the trial would commence. The ground of release on bail of an accused because of statutory delay although not available to the accused, yet if it is found that the delay is shocking and scandalous grant of bail can always be considered. In the case of Muhammad Sadiq 1973 S C M R 212 the accused, who was in jail for about a year in a case which was being adjourned from time to time for no fault of the accused, bail was granted and the Honourable Supreme Court declined to cancel the bail. In the case of Abdul Hamid 1976 S C M R 413 it was observed that the delay if in particular circumstances of case amounts to abuse of process of law, it was relevant ground for grant of bail and it was further observed that the accused was not in any manner responsible for delaying his trial. In the case of Ghulam Haider 1983 S C M R 790 the accused who were facing trial for offence under sections 323,.325 and 392, P.P.C. were granted bail as record showed that after lapse of more than eight (8) months since registration of case, none of prosecution witnesses were examined. In the case of Sanam Shah and others 1986 P Cr. L J 2947 a learned Judge of this Court granted bail and observed that no accused could be kept in custody as an under-trial prisoner for indefinite period. It may be mentioned that in the said case the accused who were charged with offence under section 302, P.P.C. were in custody for a period extending to nearly 3-1/2 to 5 years. In case of Muhammad Shafique 1992 P Cr. L J 1550 the accused charged for an offence under Article 3/4 of Prohibition (E.O.H.) Order, 1979 and who had been in lock-up for seven (7) months and his trial had not yet commenced, bail was granted. In the case Noor Ahmad 1992 P Cr. L J 1841 the accused charged for an offence of murder and who was behind the bars for more than nine (9) months and against whom challan had not been submitted in the Court, his case was considered as of further inquiry and bail was granted. The inordinate delay in commencement of trial in my view, therefore, would be a sufficient ground to exercise discretion in favour of the applicant and I am, therefore, inclined to grant him bail. Applicant shall be so released if he furnishes one surety in the sum of Rs.5,00,000 (Rupees five lac) with P.R. bond in the like amount to the satisfaction of the learned trial Court. N.H.Q./M-1952/K Bail granted.