1998 P Cr (PLP)

(1) PLD 1972 SC 81: In this case their Lordships of the Supreme Court were pleased to release the petitioner on the Mound that the police on investigation found the accused to be guilty whereas the complainant party consistently maintained that the police report was not correct and that the real culprits were placed in Column N0.2 of the challan by the police and the persons charged A accused were innocent. With due respect to the authority, I am of the firm opinion that this authority on the face of it has no bearing to the case of the present applicant.. (2) 1987 PCr.LJ 1140: In this case Sajjad Ali Shah, J. (as his Lordship then was) considered the inherent discrepancies occurring in prosecution case as to at what particular place samples were drawn, whether during search conducted by police official at time when accused and heroin were produced before Customs Officer. In the present case the A.S.F. Inspector Muhammad Ashiq recovered the gold slabs from the applicant/accused, which were concealed by him in a pair of shoes worn by him at the A.S.F. Search Counter at International Departure Satellite during the course of his body search. On the face of it, in my humble opinion, this authority is not relevant to the facts of the present case. (3) 1989 PCr.LJ 1357: In this case the accused was apprehended at the International Departure hall, Karachi Airport, while leaving for Bankok and from his possession currency of different countries valued at Rs.49,600 was recovered. A case under clause (8) of section 156(1) of the Customs Act, 1969 was registered against and after usual investigation he was sent up for trial before Special Judge (Customs and Taxation), Karachi on 9‑5‑1981. The applications under sections 265‑K and 435/439, Cr.P.C. seeking his acquittal on the ground of delay was filed and the points for consideration before late Qaiser Ahmed Hamidi, J were that the delay of 8 years in the conclusion of trial tantamounts to denial of justice, and thus, an abuse of process of law. That there was no probability of the applicant being convicted of any offence, as the search of the applicant' was conducted in violation of section 159 of the Customs Act, 1969 and that the currency alleged to have been seized from the possession of applicant was not produced in Court, giving rise to an inference that the same did not exist. I am afraid this authority on the face of it is quite different and distinguishable from the facts of the case in hand inasmuch as the F.I.R. was lodged on 10‑1‑1998 and after completion of the investigation charge‑sheet has been submitted before the trial Court on 22-1‑1998 where the evidence is yet to be adduced by the parties, in this case the alleged gold was secured by the A.S.F. Officer while conducting the body search, of the applicant/accused's shoes which he was wearing and according to section 6(l)(e) of the Airport Security Force Act, 1975 the officer concerned is competent to take search and take necessary steps. Under the circumstances, with due respect to the authority in my humble opinion the same is not applicable and favourable to the case of the applicant/accused. . (4) 1993 PCr.LJ 500: In this case the learned Single Judge of this Court was pleased to allow the bail application with the following observation:‑‑ . "On further perusal of the Mashirnama it is completely silent regarding recovery of the travelling documents from the applicant. Passport, ticket, boarding pass etc. are not to have been secured in this Mashirnama, Only a general term has been used that the travelling documents were seized. Furthermore, I find that all the F.I.Rs. are virtually carbon copies, excepting for the names of the accused, passport number and quantity of gold are different and the rest of the material in the same context. I further find that four of the co‑accused were let off by the Seizing Officer and in this regard the learned counsel for the applicant has asked if some of the accused persons are found innocent and let off by the Customs Authorities, then that by itself creates doubt about the co‑accused and the benefit of this should also be given to the co‑accused. No doubt it is true and is also an admitted position that four of the accused persons have been let off by the Seizing Officer. Subsequently on 21‑6‑1992 F.I.Rs have been registered against those four persons and, therefore, it cannot be said that the four accused, thus, let off are not accused." The above order of the learned Judge of this Court shows that the four persons were suspected by the Customs Officer and they were not charge‑sheeted and travelling documents, Passport, Ticket etc. were not recovered, whereas in the present case the accused/applicant was apprehended by the A.S.F. Officer and apart from gold a brown pair of shoes worn by the applicant/accused alongwith Pak. Passport No.A660904. P.I.A. Ticket No.214‑4405‑024‑599‑3, Indian Visa No.P7/8959/97, dated 21‑11‑1997 in duplicate were secured and handed over to the Customs Officer alongwith the A.S.F. covering letter dated 10‑1‑1998. No other person was apprehended by the A.S.F. or Customs Officer except, the applicant/accused, who has been charge‑sheeted before the Court of law. In my humble opinion this authority under the circumstances is not applicable and helpful to the case of the applicant/accused. (5) 1997 MLD 1478: In this case Sh. Ijaz Nisar, J. (as his Lordship then was) was pleased to orant the bail with the following observation:‑‑ "They are behind the bars since about eleven months without any progress in the trial. Accordingly, I grant the application and admit them to bail in the sum of Rs.1,00,000 (one lac) each with two sureties each in the like amount to the satisfaction of the trial Court/Sessions Judge, Lahore." Whereas in this case the applicant was apprehended on 10‑1‑1998 and the charge‑sheet against him was submitted before the trial Court on 22‑1‑1998, the case is recent one whereas the prosecution has yet to adduce the evidence. In any case the applicant is in custody since about last one month whereas in the case referred hereinabove the applicants were released on bail because they were in custody since about 11 months and there was no progress in the trial as such this authority in any case is not helpful and applicable to the present case. Learned Standing Counsel has referred Ahmad Kabir v. The State 1983 PCr.LJ 2299 of Special Appellate Court (Customs) Lahore High Court, Lahore. In this case A.S.‑I. Saeed Iqbal of the Airport Security Force was at the relevant time deployed for duty at the personal search cabin at the airport. The appellant was wearing jeans and showing signs of nervousness. A.S.I. Saeed Iqbal felt suspicious and searched the appellant. He recovered two plastic bags from under the jeans 'tied to the testicles. These bags contained 345 grams of heroin worth Rs.1,00,000 (about) The appellant was arrested and a case under section 156(1)(8) of the Customs Act was registered against him. After completion of the investigation charge‑sheet was submitted before the learned Special Judge, Lahore for offences under section 156(1)(8) of the Customs Act, 1969. After conclusion of the trial, the appellant Kabir Ahmad was sentenced to suffer R.I. for a period of three years and to pay a fine of.Rs.5,000 in default of payment of the fine he was ordered to receive simple imprisonment for a further period of six months. Against this judgment the appellant preferred the appeal which was considered by Saad Saood Jan, J. (as his Lordship then was). The learned Judge considered the provisions of Airport Security Force Act, 1975 specially section 6(e) referred hereinabove in the earlier part of this order and was pleased to maintain the judgment. I have gone through the material placed with the case.. The applicant/accused was apprehended by the Inspector Muhammad Ashfaq of A.S.F. at the A.S.F. Security Counter International Departure Satellite during the course of body search, his, passport P.I.A. Ticket alongwith visa were secured. Applicant/accused alongwith gold (10 slabs of 10 Tolas each and 1 slab' of‑20 grams) all bearing foreign marks and numbers so recovered, were handed over to the Customs Officer alongwith forwarding letter and after finalisation of the investigation on 22‑1‑1998 the charge‑sheet was submitted before the Trial Court where evidence is yet to be adduced by the parties. The case‑law relied upon by Mr. Rana M. Shamim, Advocate for the applicant/accused, in all fairness is not , helpful and applicable to the present case of the applicant/accused, whereas the case‑law referred by Mr. Musheer Alam, learned Standing Counsel, is applicable to the present case, which I most respectfully follow. Menace of smuggling of precious metals such as gold and silver is creating problems for the society and for the country at large and the same has nowadays taken very ugly shape of trade, which is to be curbed with some strong measures. The present case is very recent one, apparently there appears no reason of false implication of the applicant /accused at the hands of A.S.F. Officer/Customs Authorities. The contention of Mr. Musheer Alam that possibility of tempering of the prosecution evidence at the hands of the applicant/accused cannot be ruled out, if he is released on bail is not without force. It is clearly mentioned in the F.I.R. that the gold slabs so secured bearing foreign marks and number alongwith travelling documents Passport, P. I. A. ticket and visa were handed over to the Customs Officer. Moreover, the charge‑sheet has also been submitted within time by the prosecution before the Special Judge (Customs and Taxation), Karachi. , The upshot of the above discussion is that, prima facie there are reasonable grounds to believe that the applicant/accused is guilty of the offence for which he has been charge‑sheeted. , Consequently the bail application is rejected. The applicant/accused may repeat the bail 'application before the Trial Court after some material evidence is recorded. After hearing the parties on 11‑2‑1998 the bail application was rejected by short order. The above are the reasons for the same. H.B.T./M‑281/K ???????????????????????????????????????????????????????????????????? Bail, application rejected.