1976 P Cr (PLP)

S. 497 & 498‑Bail Charge of keeping smuggled goods in a room of a house keys of which supplied to Investigating Officer by accused‑Two more persons charged Or same offence and allegedly residing in same house shown as absconding accuse in same case‑Applicant accused, in circumstances, not the Only person in possession of premises‑As regards goods applicant alone could also not be treated as person concerned‑Evidence of prosecution rebutable during course of trial, yet to commence‑--No reasonable grounds existing to hold applicant guilty of offence charged‑Bail allowed‑Customs Act (IV of 1969), S. 156(89).‑-[Bail]. Wali Muhammad v. State 1969 S C M R 233 rel. Azizullah Shaikh for Applicant. Usman Ghani Rashid, Asstt. A. G, for the State. The applicant Masroor ul Hassan has been arrested and sent up for trial for offences punishable under section 156(8) and (89) of the Customs Act. He was refused bail by the Special Judge (Customs and Taxation), Karachi on 8‑1‑1975 on the ground that the burden of proof that there was no act to defraud the Government of any duty or taxes payable on the goods shall be on the person from whose possession the goods are seized and that in the present case by no evidence whatever documentary or otherwise, the burden has been discharged even, prima facie for the purpose of disposal of this bail application." This application was rejected at the time when the applicant accused bad not been finally challaned by the investigating authority and so the Special Judge K thought that the investigation being still in progress it was too premature to say that there are reasonable grounds to believe that the applicant is not guilty of the offence under section 156(8) of the Customs Act, which is punishable with a sentence of imprisonment for 10 years or that he could be reasonably held to be guilty of an offence under section 156(159) of the same Act which is punishable with six years imprisonment. Now that the case has been ultimately challaned, the applicant has filed the relevant documents including 161, Cr. P. C. statements in Court and upon the basis of the same, the counsel for the applicant raised argument that, prima facie, the offence that could be made out would be under section 156(83) of the Customs Act anal not one under section 156(8) of the Customs Act. This being punishable with imprisonment for six years he contended that hail should not be refused to him unless reasonable ground are Made out to hold him guilty. So far as the section which would be applicable to the facts of the case, the learned Assistant A. G. also agreed and very rightly that as the facts and circumstances stand at present, the applicant could he said to be liable only under that section. He, however, contended that‑ bail should still be refused because the evidence so far collected disclose that goods t. e. watches worth about 20 to 30 lakhs of rupees had been secured from a room in the house Kashana‑e‑Bano in Nazimabad which room was locked, but the key for which was supplied by the applicant. Thus according to him the possession of the goods was proved to be that of the applicant and that the burden of proving that these goods were not smuggled, which term has by now been defined under the Act, was heavily on the applicant himself. The counsel for the applicant argued that on the one hand import of watches was admittedly on the free list and there fore such goods were available in the country and on the other hand, the applicant was admittedly not the only occupant house from where the watches were secured. His brother Israrul Hassan son of Irfanul Hassan was a dealer in watches and that he had gone to perform his Haj from where he had not as yet returned. The name of this Israrul Hassan in the list of the absconding accused along‑with one more person Muhammad Sharif, who is also shown to be resident of the same house. Thus on the basis of the statement of facts made in the challan by the prosecution itself, the applicant is not the only person in possession of the premises. About the goods also if the applicant was to be treated as the only person concerned then the other two persons would not be shown as absconders. In any case according to the learned counsel for the applicant, 9 the evidence collected by the prosecution could be rebutted by him during the course of the trial. He relies on Wali Muhammad v. State (1969 S C M R 233) where it was held that:‑ "Where evidence against the petitioner was still to be evaluated and that as a general rule on a charge of the kind made in this case not involving a sentence of death of transportation, bail should ordinarily to allowed disregarding the grounds of the seriousness or anti‑social nature of the defence unless there be strong grounds in the shape of evidence for the relief that he is guilty," This was also a case under the Sea Customs Act in which a large quantity of gold valued about one crore of rupees was involved, but the punishment, however, was six years R. I. In the present case also I find that no reasonable grounds could be pointed out presently to hold that the present applicant is guilty for the offence that he is charged with. The evidence is B to be adduced against him at the trial where he has an opportunity to rebut the same. He is, therefore, granted bail in the sum of Rs. 50,000 (rupees fifty thousands) with one surety and P. R., bond in the like amount to the satisfaction of the Special Judge, Customs and Taxation, Karachi. Bail allowed.