1968 PCr (PLP)

Sardar Ata Ullah Khan v. The State P L D 1963 Kar. 136 fol. Talmiz Burney and S. S. Shaikh for Appellant. Kazi Akhtar A. A: G. for the State. Date of hearing: 20th December 1965. This is the third application on behalf of accused Abdul Aziz in which a prayer has been made under section 498, Cr. P. C. read with section 561-A, Cr. P. C. for his release on bail. When the matter came up for hearing on 20-12-64 before me it was vehemently opposed by the Additional Advocate-General. Oral order rejecting this application was passed on that day and the reasons are being recorded today.

2. Relevant facts for the disposal of this application are that on 15-11-65 accused Abdul Aziz and one Abdul Kadir were found together in a Fiat Car No. KAD 4591 near Grand Hotel at McLeod Road, Karachi, when the car was stopped by the present applicant, his co-accused Abdul Kadir got down and he eras arrested. On his personal search 200 gold bars of 10 tolas each of foreign gold were recovered from the pockets of the two cotton jackets worn by him. First report was lodged at 7-0 pap. During his interrogation, it appears, the name of the present applicant had transpired and attempts were made, to secure him. He was again found at 7-30 p.m. on the same day, in the same car at the crossing of Frere Road and Burns Road, Karachi. He was arrested and on search being made a bag was recovered from under the driver's seat and it contained a sum of Rs. 2,62,412 in Pakistan currency. Thereafter his house was searched and another sum of Rs. 1,39,900 was found. The car, 2,000 tolas of gold and Pakistan currency totalling Rs. 4,02,312 are liable to confiscation under the Sea Customs Act. Investiga tion is still going on and interim charge-sheet has been filed on 29-11-65. During this period the applicant Abdul Aziz had approached the trial Court on 26-11-65 for his release on bail but his prayer was refused. Thereafter he approached the Sessions Judge who also declined to release him on bail by his order dated 1-12-65. Present application was filed in this Court on 8-12-65.

3. Main argument advanced on behalf of accused Abdul Aziz before me is that the alleged offence is punishable with 6 years' R. I. and not with death or transportation and hence he was entitled to be released on bail under section 498, Cr. P. C. While admitting this position that the alleged offence is punishable with 6 years' R. I. the learned Additional Advocate-General had urged before me that the offence of smuggling is heinous in nature and is under public condemnation. The offences alleged against accused Abdul Aziz and his co-accused Abdul Kadir are that they are guilty of being concerned in carrying, possessing and dealing in foreign gold, the import or export of which is restricted under the provisions of the Foreign Exchange Regula tion Act, 1947 and further that they are concerned with the fraudulent evasion of duty chargeable on the said gold and with violation of prohibitions imposed on the import of foreign gold. It means that both these accused persons have imported foreign gold during the period of emergency and against the provisions of Foreign Exchange Regulation Act, 1947 and have also evaded payment of heavy duties. In this connection I was referred to a case reported in P L D 1959 Kar. 37, which lays down certain facts, which must be taken into consideration while granting or refusing bail. It was held that the granting of bail under section 498, Cr. P C. is a matter pertaining to the discretion of the Court. An accused who has been charged with a non-bailable offence cannot claim bail as of right. It was further observed that such discretion must be exercised according to judicial principles. One of the matters which must always be taken in consideration while disposing of application of this nature is whether the offence with which an accused person is charged` is heinous and is under public condemnation. In this particular case reference has already been made to the nature of charges levelled against both the accused persons which apparently are heinous in nature, and import of gold in spite of restrictions and against the provisions of F. E. R. Act, 1947 and at the same time evasion of heavy duties would be condemned by public. In spite of all this, offence under the Sea Customs Act (section 167 (81)) is punishable with R. I. for 6 years only. In my view, for the reasons stated above, this offence deserved enhanced sentence. However it is for the Government to consider this position. For the reasons stated above I find very little substance or material in this argument raised on behalf of accused Abdul Aziz.

4. Second ground urged on behalf of accused Abdul Aziz is that, there is no evidence against him. This argument is also without any foundation. While narrating the facts I have pointed out that investigation was still in progress and further that interim charge-sheet was filed on 29-11-65. Apparently the accused person has been in great hurry and has rushed from one court to another for his release on bail without giving us sufficient material to decide his applications on merits. It is/ correct that no evidence has so far been recorded as no final charge-sheet has been filed and in view of this position. Courts had to rely upon the statements recorded by Police, which in my opinion, is not the safe way of disposing of such applications. Aukward situation has been created by accused Abdul Aziz as at this stage there is no evidence on record and for this position he himself is responsible. During the pendency of this application in this court three advocates were engaged by him. I may also further add that the advocates feel that once they; are engaged it is their incumbent duty to see that his client is released on bail without taking into consideration the merits of the case. Apparently in this particular case there has been great hurry and no opportunity has been given to the courts to consider his request on merits as the investigation is still going on.

5. I then come to his next ground, i.e. the absence of the name of accused Abdul Aziz in the first report. In view of the facts stated above there appears very little substance in this ground also. His co-accused Abdul Kadir was arrested and first report was recorded at 7 p. m. During his interrogation, it appears, he had disclosed the name of the present applicant, namely, Abdul Aziz and thereafter he was secured and searches were made as stated above.

6. Another ground mentioned in the application is that accused Abdul Aziz is a taw-abiding citizen and further that he is not a previous convict. The learned Additional Advocate-General had argued before me that the evidence so far collected showed that accused Abdul Aziz is a member of International Gang of Smugglers. The investigation is still in progress. A sum of more than four lacs in Pakistan currency has been secured from his possession and it is alleged that it is the sale proceeds of the Smuggled gold. The applicant is silent regarding his status in life. His application does not show profession or trade or business he has been dealing in.

7. I have already mentioned that this prayer is made under section 498 read with S. 561-A, Cr. P. C. I agree with the learned Additional Advocate General that section 561-A, Cr. P. C. does not empower any court to release an accused person on bail. Grant of bail and matters ancillary to it are dealt with under Chapter 3 of the Cr. P. C. with heading "of bail". S. 46 deals with power of a court in cases of non-bailable offence while S. 497 lays down when bail may be taken in 'cases of non-bailable offences by such Courts. This chapter excludes the existence of any additional inherent power in a High Court relating to the subject of bail. S. 561-A, Cr. P. C. confers no such powers. It merely safeguard all the existing inherent powers possessed by a High Court necessary to secure the odds of justice. This view warms expressed in a case reported in Lala Jairam Das rant others v. Emperor (AIR 1945 P C.94). The inherent powers of the High Court being very wide and undefinable, the limits of such power should be carefully guarded. Its inherent powers are recognised only to meet those cases for which provision is made by the Code. There is likelihood of some case arising which are not covered by the express provisions of the Code wherein justice has to be done and this is the primary duty of every court. The reason is that the Legislature cannot foresee such cases and circumstances so as to make express provisions against all inconveniences. The inherent powers of a High Court under S. 561-A, Cr. P. C. have been clearly explained in cases re ported in Malik Firoz Khan Noon v. The State (P L D 1958 S C 333), Muhammad Sami ullah Khan and another v. The State (P L D 1963 S C 237) and Alt Dino Mirza. Deputy Superintendent of Police Dadu v. The State (P L D 1963 Kar. 436). For all these reasons I agree with the learned Additional Advocate-General and hold that this application is not maintained under S. 561-AX, Cr. P. C.

8. Lastly it was urged before me by the learned Additional Advocate-General that S. 498,Cr.P.C. is not independent of Ss. 496 and 497, Cr. P.C. According to him it is merely rider to these two sections. Therefore restrictions mentioned under S. 497, Cr. P. C. shall be applicable even when bail application is being considered under 5.498, Cr. P. C, In support of his argument he had relied on a case reported in Gushtasab Khan v The Crown (P L D 1956 F C 117). This question came up for consideration before this Bench and this decision has been distinguished as reported in Sardar Ala Ullah Khan v. The State (P L .D 1963 Kar.136). It was held that powers of a High Court or Court of Sessions under S. 498 in non-bailable cases is not confined to statutory limitations laid down under Ss. 496 and 497, Cr. P. C. I am in respectful agreement with this finding. In this case my learned brother Waheeduddin Ahmed has discussed the entire case-law on this point.

9. The other objections raised on behalf of the Additional Advocate-General were that accused Abdul Aziz being a member of an, international gang of smugglers is likely to repeat the offence if tae is released on bail. l0 Taking into consideration all these reasons the application was rejected. Application rejected.