1993 P Cr (PLP)

2. The case of the prosecution as unfolded in the F.I.R. lodged by Major Mumtaz Hussain in brief is that on receipt of secret information that gold of foreign origin would be smuggled into Pakistan, Major Mumtaz Hussain of Headquarters Pakistan Coast Guards, Karachi, and his party kept a watch on Jinnah Terminal, Karachi Airport and on 8-10-1992 at 12-30 a.m. spotted a Suzuki van going towards Karachi City. The driver of the van was signalled to stop, but he accelerated the speed. It was, however, stopped near Star Gate. The baggage belonging to co-accused Gul Badshah was searched which led to recovery of 60 slabs of gold, weighing 600 Tolas which were secretly concealed. Applicant Aftab Alain, the driver of the van and applicant Muhammad Akhtar, the owner of the van who were present with co-accused Gul Badshah were taken into custody and a case was registered against all of them.

3. I have heard Mr. Azizullah K. Shaikh, learned counsel for applicants and Mr. Ikram Ahmad Ansari, learned D.A.-G. for State. The latter has opposed the bail application.

4. The perusal of the record shows that the offence against the applicants, if any, will fall under section 156(1)(89) of the Customs Act, 1969, and not under section 156(1)(8) of the said Act. The bail was refused to applicants mainly on the ground that their case is covered under section 178 of the Customs Act, 1969, because they were accompanying co-accused Gul Badshah, who had smuggled gold into Pakistan. The learned Special Judge should have first tentatively assessed the following:-- (i) Whether the applicants had knowledge that co-accused Gul Badshah was carrying gold? (ii) Whether the applicants had knowledge that the gold so recovered from the possession of co-accused Gul Badshah is smuggled gold? (iii) Whether the applicants are the associates of co-accused Gul Badshah?

5. Mr. Warn Ahmad Ansari learned D.A.-G. finding himself on the horns of a dilemma, conceded and I think rightly, that there was no evidence available on record to make out a case under section 178 of the Customs Act, 1969. He was even constrained to admit that no member of the raiding party was examined under section 161, Cr.P.C., to show that the driver of the van had accelerated the speed after a signal was given to stop it. I desire to associate myself with the measured language of my learned brother Imam Ali G. Kazi, J., when in somewhat similar circumstances he was pleased to observe in Shaukat v. The State Special Criminal Bail Application No.57 of 1990 as follows:-- "From the plain reading of the above section it is clear that a person can be punished under that section for being vicariously liable if it is established that he had the knowledge that his companion had the goods liable to confiscation under the Act. It, therefore, follows that the prosecution have to adduce clear evidence to the effect that companion accompanying a person in possession of contraband goods was aware of that fact."

6. While opposing the bail application the learned DA: G. has placed reliance upon the contents of paragraphs 3 and 4 of the charge-sheet (CHALLAN) in an attempt to show that the applicants are prima facie involved in a case under section 156(1)(89) of the Customs Act, 1969. It may, however, be observed that the materials collected against the applicants are inadmissible under Qanun-e-Shahadat, 1984, either on the ground of hearsay evidence or the confessional statement made by the accused to the Investigating Officer.

7. At any rate the offence with which the applicants are charged does not fall within the prohibitory clause of section 497, Cr.P.C. and the grant of bail in such a case is a rule while its refusal should be an exception. No case of exceptional nature is made out. Accordingly bail is granted to both the applicants in the sum of Rs.2,00,000 (Rs, two lacs) each with two sureties of Rs.1,00,000 (Rs. one lac) each and P.R. bond in the like amount to the satisfaction of the trial Court.

8. By a-short order dated 23-11-1992 I had allowed bail to applicants and these are the reasons for the said order. N.H.Q./A-1321/K Bail allowed.