1975 PLP 508 (SCMR)

HAMOODUR RAHMAN, C. J.‑‑We have already dictated a short order in ‑this matter. The reason for the order are now given as follows : ‑ Sometime in 1973, the police received information that a gang of international smugglers Was operating under the leadership of one, Muhammad Ashraf Shah, resident of Gwalmandi, Rawalpindi. The modus operandi of this gang was smuggle watches, precious varieties of cloth etc. from Hong Kong under the cover of `diplomatic bags' consigned to one of the Embassies in Pakistan, A consignment of this kind was expected to reach Islamabad Airport on 19‑6‑73 by P I A Flight No. P K 304 under the name of the Embassy of North Korea. A raiding party, headed by Mohammad 'weed, C. I. O., was accordingly organised to check the aforesaid flight. The consignment, however, did not reach Islamabad on 18 6‑

73. On 19‑ 6‑73 a consignment consisting of three bags reached Chaklala Airport from Karachi but no one turned up to take delivery of the consignment till 9‑30 p. m. of the night. Then the Embassy of North Korea was contacted and it was learnt that the Embassy had never booked any consignment from Hong Kong for Islamabad. The consignment was then taken possession of and opened by the Custom's staff in the presence of P I A Officers. It was found to contain 2054 wrist watches, 714 yards of cloth of pure silk, a T. V. set and a number of limitation jewellery items, valued at approximately 2,5000. The goods were seized and an F. I. R. No. 213 was registered at the Civil Lines, Police Station, Rawalpindi. No accused was, however, challaned in this case. On the contrary, the Deputy Collector, Customs, took cognisance under section 179 of the Sea Customs Act and, by an order made on 7‑6‑1974, fined one, Hafiz Muhammad Ahmad, a sum of Rs.70,

000. Two other persons, namely, Mohammad Ashraf Shah (named in the F. I. R.) and Fasihuddin from Karachi were also fined Rs. 15,000 each. The present petitioner was neither named in the F. I. R. nor was a party to the proceedings before the Deputy Collector of Customs. Nevertheless, he was arrested on the 20th March, 1975. He applied for bail to the Sessions Judge, Rawalpindi, and was enlarged on interim bail on 30th March, 1975. The matter was to come up for hearing again on the 5th April, 1975, on notice to the State. The Jail authorities, however, declined to release the petitioner on the ground that the petitioner was being detained on the basis of another F. I. R. bearing No, 122, which had been registered with the P I A Police on 2-11‑74 under sections 4?,' ,, 468 and 471, read with section 156 of the Sea Customs Act, 1969, The petitioner then made another application to the Sessions Judge for grant of bail in this second case but his prayer was rejected on the 2nd April, 1975. He then moved the Lahore High Court under section 498 Cr. P. C. but a learned Single Judge of the said High Court has also rejected his prayer. The High Court has accepted the contention of the State that the grant of bail to the petitioner would hamper investigation and make it difficult for the Investigating Agency to uncover the gang which was operating on an international basis. Learned counsel appearing in support of this petition, however contends that the petitioner has not been named either in the first F. I. R. or in the second F.I. R. and there is no material on the record to connect him with any offence at all 'the contention that as the police wants to seize his Passport, the detention is necessary, is legally not sustainable. The registra tion of the second F. I. R. is itself illegal and the detention is purely arbitrary. The mere addition of a charge under section 166 of the Customs Act in the F. I. It. without any supporting evidence, is :.o ,justification for the detention 9f the petitioner. The learned Assistant Advocate‑General concedes that the petitioner has not been named in either of the F. I. Rs. but he contends that amongst the contents of these 'diplomatic bags', seized at the Islamabad Airport on 19‑6‑73, there were certain invoices of goods in Pakistan Currency and the handwriting expert has since given the opinion that these invoices had been written out in the hand of the petitioner, who is a brother of Hafiz Mohammad Ahmad, who was fined by the Deputy Collector, Customs, under section 179, Customs Act, on the 17th June, 1974. The investigating Agency have also now managed to get his Passport Number and are making enquiries through the Interpol to uncover the entire gang. There was some apprehension that he might also jump bail, as his brother had done. This is, however, denied by the learned counsel for the petitioner who states that Hafiz Mohammad Ahmad is on bail and is available in Pakistan whenever required. Learned counsel for the petitioner also states that all other persons arrested in connection with this case have been granted bail. Having heard the learned counsel for both sides, we are of the opinion that the material on the record at present is not by any means sufficient to'~ implicate the petitioner. There is also no real apprehension of the petitioner absconding. The D S. P., Incharge of the Investigation of the case, who is present, has not also produced before us any statement of any witness implicating the petitioner. In the circumstances, we convert the petition into an appeal and allow the same. We direct the petitioner to be enlarged on bail in the sum of Rs.1,00,000 (Rupees one lac) with two sureties of the like amount to the satisfaction of the Assistant Commissioner, Rawalpindi. This bail is also subject to the condition that the petitioner will report every Monday to the Assistant Director (Assets), F. I. A. Karachi. If he fails to do so the State will be at liberty to move the appropriate Court fore the cancellation of the bail. Bail allowed.