1993 PCr (PLP)

Bonifacio A. Buragyag v. The State P L D 1991 SC 988 ref. Rana M. Shamim for Applicant. Abid S. Zuberi for the State. The case of prosecution, in brief, is that on 22-2-1993 at 4-30 a.m. the applicant, while passing through Green Channel, was intercepted at Quaid-e -Azam Airport Karachi, and from his baggage in presence of Mashirs Nawab Gul and Sujan Khan, 400 Tolas gold, worth Rs.14,56,000 in the shape of 40 slabs, each being of 10 Tolas, having Foreign marks, was seized. On completion of investigation the charge-sheet was submitted under section 2(S) read with clause (8) of section 156(1) of the Customs Act, 1969. The bail was refused to the applicant by learned Special Judge (Custom and Taxation) Karachi, vide order dated 11-3-1993. It is contended on behalf of the applicant that Government of Pakistan has allowed import of gold in the country on payment of duty having realised that its import is not against the national interest. Learned counsel also argued that, according to charge-sheet, one Amjad was the real beneficiary and the applicant at the most was only a carrier. It is also urged that no claim tag was recovered from applicant and it being so the case falls within the scope of further inquiry as contemplated in section 497, Cr.P.C. It is true that import of gold is permissible but that is to be according to the rules and procedure prescribed for its import. The act of smuggling cannot be taken at par with import, which can only be done by following the rules available on the subject. As regards the plea of carrier, it is noted that in view of the rule laid down by the Honourable Supreme Court in the case of Bonifacio A. Buragyag v. The State reported in P L D 1991 SC 988, the carrier' solely on this ground is not entitled to lenient treatment. Honourable Supreme Court in above case dealing with the plea of carrier observed as follows:-- "Where a legal sentence has been awarded and the discretion has been properly exercised, generally speaking, this Court seldom interferes with the sentence awarded to a convict. In the present case, in our view, the petitioner has been treated quite leniently as instead of awarding him (he being a carrier) a sentence of life imprisonment, he has been given only 7 years' rigorous imprisonment. It may be remembered that it is hardly conducive to the welfare of the society to give an impression that the Courts are more concerned with the welfare of convicts rather than that of the society." Learned counsel for the applicant in the last argued that no claim tag was recovered from applicant. From the impuged order, it is evident that this plea and the plea of carrier were not taken before the trial Court. On the contrary, impliedly recovery was admitted. This is clear from the argument advanced before the trial Court that smuggling of gold was not "dangerous or harmful to human health and life or would in any way adversely affect economic condition of the country". Abdul Majeed seizing officer in F.I.R. and Mashies in their respective statements, have fully implicated the applicant and maintained that recovery, as alleged, was effected. An elaborate sifting of evidence at bail stage is neither permissible nor possible. The evidence available on record, prima facie, supports the prosecution version that said gold was seized from applicant. Under clause (8) of subsection (1) of section 156 of the Customs Act, the sentence for smuggling of goods into or out of Pakistan is up to 14 years, and the minimum sentence for such goods essential to the life of the community, which includes gold, is 5 years. The gold, so seized, is in commercial quantity. Accordingly, I do not find any merit in this bail application and the same is dismissed. N.H.Q./M-1857/K Bail refused.