1993 PCr (PLP)

Mir Nawaz Khan Marwat for Applicant. Farrukh Zia Shaikh for Dy. A.-G. for the State. This is an application for bail made on behalf of applicant Jehangir Irmangan, who is detained in Crime No.DEC-44/92/1, dated 13-8-1992, under section 156(1)(8) of the Customs Act, 1959. The bail application made on his behalf was rejected earlier by learned Special Judge (Customs and Taxation) Karachi, vide order, dated 5-10-1992.

2. The brief facts of the case are that in pursaunce of an information Muhammad Shuja, Preventive Officer, Pakistan Customs intercepted the applicant at Domestic Arrival Hail, Quadi-e-Azam Airport, Karachi, and from the suit-cases which he was carrying recovered 1.7 Kgs. of powder of heroin, cleverly concealed in secret cavities. The personal search of the applicant who had 'arrived from Peshawar led to the recovery of one air ticket showing that the applicant was bound for Zurich by Swiss Air Flight No.SR-395, leaving Karachi on 14-8-1992. The applicant who was taken into custody was served with a notice under section 171 of the Customs Act, 1969, and a formal F.I.R. was registered against him. After usual investigation the applicant was sent up to stand his trial for the said offence.

3. I have heard Mr. Mir Nawaz Khan Marwat, learned counsel for the applicant and Mr. Farrukh Zia Shaikh, learned counsel for the State. The latter has opposed the bail application.

4. It is contended on behalf of the applicant that the allegations made in the F.I.R., even if taken at their face value and accepted in their entirety, do not constitute the offence alleged. In other words it is, the case of the applicant that a preparation made to smuggle7 powder of heroin out of country does not fall within the meanings of section 2(s) of the Customs Act, 1969. What constitute as `attempt to smuggle' is a mixed question of law and acts depending mainly on the circumstances attending to a particular case and it is, therefore, premature to hold even tentatively for the limited purpose of bail that it was only a case of `preparation to smuggle' and nova case of an `attempt to smuggle'. There is a thin line of distinction between the preparation for and an attempt to smuggle and as rightly observed by learned Special Judge the circumstances attending to this case prima facie make cut a case under section 156(1)(8) of the Customs Act, 1969. It may be added that the powder of heroin alleged to have been recovered from the baggage of the applicant was concealed in secret cavities made for this purpose. The contention raised on behalf of applicant that the powder of heroin was meant for its consumption at Karachi is feeble and faint and thus lacked vigour as well. There is no dearth of powder of heroin in Karachi. The smugglers employ the acme of human ingenity in a manner, which number of anti-smuggling squads have failed to combat much less to stop it.

5. In view of what I have stated above, the bail application has got no merits and is accordingly dismissed. It may, however, be opened before the trial Court after some progress is made in the case. N.H.Q./J-155/K Bail refused.