1976 P Cr (PLP)

K. Bashir Pervaiz for Petitioner. Mahmood‑ul‑Hasan for the State. This is an application of one Mohammad Aslam alias Bhola for grant of bail before arrest. He is accused alongwith six others for an offence under section 156 (8 & 9) of the Customs Act. According to the F. I. R. the Customs Intelligence officer received an information that the petitioner alongwith Aftab and Bashir was smuggling betel leaves and cardamom from India into Pakistan. On the 10th of July 1973, an information was received by the complainant that the smuggled betel leaves and cardamom had reached the house of Bashir a co‑accused of the petitioner and a truck had been sent for bringing the goods to Lahore. The truck, according to the F. I. R. belonged to Messrs United Goods Company, Lahore and Mohammad Aslam petitioner had a share in that Company. A raiding party was organized and the party set up a `Naka Bandi' at Amar Sidhu. The above mentioned truck was seen coming from Kasur side. The raiding party challenged the driver to stop and ultimately it was made to stop at Canton ment Road. Four persons namely Noor Mohammad, Barkat, Din and Tufail were sitting in the truck. On search, five maunds of cardamom and 11 maunds of betel leaves were found in the truck. The complainant was told by the above‑mentioned four persons that they were taking the goods to Aftab (co‑accused) and Mohammad Aslam (petitioner). The goods were taken into possession and all the above‑mentioned four persons, were arrested.

2. Learned counsel for the petitioner urged that Mohammad Aslant petitioner had been named due to enmity. The petitioner who was present in Court stated, on inquiry by me, that he had no enmity with any of the four persons in the truck but said the Customs Officer had probably some enmity with his father. On being questioned further he stated that his father was dead apt that he could not state the nature of enmity which the Customs Officer may have had with his father. The petitioner's counsel then argued that all the other co‑accused have been released on bail. He has produced copy of the order of the learned trial Magistrate dated 17‑9‑73 whereby he granted bail to Bashir, from whose house the smuggled goods were being brought in truck to Lahore and a copy of the order of the learned Additional Sessions Judge, Lahore dated 3‑8‑1973, granting bail to Noor and Barkat, co‑accused two of the persons who were present in the truck in which the smuggled goods were being brought to Lahore. Learned counsel submitted that since the offence under section 156 of the Customs Act was punishable only with six years' imprisonment or with fine and or confiscation of goods, it was not a case covered by the embargo placed by section 497(1) of the Cr. P. C. on the grant of bail, and the petitioner is, therefore, entitled to the grant of bail as a matter of routine, if not as a matter of right. He has referred me to an authority of the Supreme Court of Pakistan, Haji Wall Mohammad v. State (1969 S C M R 233) wherein bail was granted to persons who were accused of having smuggled gold valuing about one crore of rupees.

3. Learned State counsel opposed the grant of bail before arrest to the petitioner.

4. I have carefully considered the facts of the case and am not inclined to agree with the learned counsel for the petitioner. Smuggling is rife in the country and, as reported in the newspapers, even wheat, sugar and other food‑stuff are being smuggled accross the border in large quantities while the people in the country are suffering from extreme shortage of food, bordering on starvation. I asked the Officer of the Customs Department, who appeared in this case alongwith the State counsel, as to how was it possible that such a huge quantity of smuggled pan (betel leaves) and cardamom as brought across the border from India while the Rangers and the Customs Staff are spread all along the border with specific instructions to see that no smuggling takes place. Surely, smuggling 11 maunds betel leaves is not the same thing as the smuggling of a diamond from abroad, which can be carried across the border or taken past the Customs without being noticed. The Customs Officer could not give a satisfactory reply to this question, but the petitioner's counsel submitted that he knew from his own personal knowledge that a large number of persons living in the villages along the Indo‑Pakistan Border (including village Sarhli Kalan, P. S. Lulyani) were indulging in smuggling on a big scale; that smuggling was carried out not by individuals, but by tightly‑knit and well‑organized gangs; that they were being protected by influential persons and financiers and that it was impossible for any one to get goods across the border without the connivance of the officers incharge of controlling and putting an end to smuggling. He further stated again from personal knowledge, that these officers allow the smugglers to pass through, in accordance with mutual arrangements agreed upon in advance, and give there, what is called in vernacular, a 'nakka'. He submitted that whenever any smuggler is caught, he never gives the names of his accomplices- in‑crime, but names any one else. The counsel, therefore, argued that his client, Muhammad Aslam petitioner, has also been named (by the persons found in the truck which was carrying the smuggled goods), without any basis and only to shield the actual culprits.

5. Considering the high incidence of smuggling and the rarity of the occasions on which a smuggler is caught, it can be safely assumed that even though not previously accused or convicted, he has been carrying on the nefarious activity since quite some time. It will be highly unfair to the Investigating Officer, if in such cases the Courts were to grant bail to the accused persons even before the police (or any other Investigating Agency) has had the opportunity .of having the accused in their custody, while investigating the matter. In such transactions it is very difficult to break the ring and to uncover the organization behind the operation. In Wali Muhammad's case (1969 S C M R 233) cited by the learned counsel for the petitioner, the accused had been granted bail after arrest, when the Investigating Officer had the opportunity of having the accused in his custody. The facts are, therefore, not the same because, in the present case, Muhammad Aslam petitioner is asking for anticipatory bail. No doubt, the offence itself is punishable with six years' R. I. only and does not therefore come within the ambit of the embargo placed by section 497(1). Cr. P. C. on the want of bail to the accused persons, but as already mentioned above, it is only once a while that a smuggler is apprehended or even traced out, and in view of the wide‑spread incidence and the secret nature of this activity, it can be safely assumed that this was not the first time that the persons apprehended or traced out was indulging in it. Consequently, it can also be assumed that if he is released on bail, he is again likely to indulge in the same activities, because the margin of profit in this `business' is so high that smugglers do not care about being arrested no and then or taken to jail, specially when they can hope to get released o bail within a short time. The entire area near the Indo‑Pakistan border is so infested with smugglers that amongst them it is no longer considered even a stigma or a matter of shame be arrested for such an offence. In fact it is regarded merely as a 'Professional Hazard'. As a result, the likelihood is that after their release on bail the accused party shall continue to indulge in the activity as before, I, therefore, think that it would not be proper to le him loose on society. The possibility of an accused person committing another offence, if released on bail is one of the facts to be kept in mind while granting bail even in cases in which bail is ordinarily granted. Refer Muhammad Iqbal v. State (P L D 1963 Lah. 279). It may also be mentioned that the value of the smuggled goods is Rs. 50,000 and it cannot, therefore, be said that the police had planted the goods in question on Mohammad, Barkat Ali and Mohammad Tufail etc. (the co‑accused of the petitioner), merely to involve them and the petitioner.

6. In view of the above‑mentioned facts. I do not consider it a fit case for releasing the petitioner on bail before arrest. The petition is dismissed. Bail refused.