1990 P Cr (PLP)

Nazir v. Amir Din and another 1971 S C M R 637; Mirza Khan v, Lal Khan and another 1976 P Cr. L J 324 and Barkaat Ahmad v. Said Akbar and 2 others 1981 P Cr. L J 1208 ref. Abdul Sattar for Applicant. Sohail Muzaffar for Respondent, On 27 9‑1988, the respondent who had arrived from Dubai was apprehended at Karachi Airport and from his possession gold slabs weighing 100 Tolas were recovered. A case under clause (8) of subjection (1) of section 156 of the Customs Act, 1969, was accordingly registered against him. The respondent who was detained in the above crime applied for bail before learned Special Judge (Customs and Taxation), Karachi, but his prayer was refused vide order, dated 9‑10‑1988. After a few days the respondent repeated bail application before the trial Court and this time he was successful in securing his release on bail mainly on humanitarian grounds. The State has now approached this Court seeking cancellation of bail granted to respondent on 22‑10‑1988. 2. 1 have heard Mr. Abdul Sattar, learned counsel for applicant and Mr. Sohail Muzaffar, learned counsel for respondent.

3. The jurisdiction of the Special Judge (Customs and Taxation), and the Special Appellate Court in matter of cancellation of bail being concurrent, the objection taken by learned counsel for respondent about the expiry of period of limitation as provided under section 185‑F of the Customs Act, 1969, for filing the present application for cancellation of bail, is wholly misconceived.

4. It is contended on behalf of applicant (hat no bail on ground of sympathy could be granted to an accused person as sentiment is a dangerous will‑o'‑the -wisp to take as a guide in the search for legal principles.

5. The learned counsel for respondent has on the other hand contended that the jurisdiction of the Special Judge (Customs and Taxation) and the Special Appellate Court, in matter of cancellation for bail being concurrent recourse should have been taken to the Court of Special Judge (Customs and Taxation) Karachi, before approaching this Court for cancellation of bail. Although there is no hard and fast rule in this behalf, it is desirable that the lower Court should be first moved, unless there are compelling circumstances to bypass it. The cases reported as Nazir v. Amir Din and another 1971 S C M R 637, Mirza Khan v. Lal Khan and another 1976 P Cr. L J .324 and Earkaat Ahmad v. Said Akbar and 2 others 1981 P Cr. L J 1208 are relevant on this point. In Mirza Khan v. Lal Khan and another, referred to above Aslam Riaz Hussain, J. (as he thon was) observed as follows: ‑ However., I feel that, as submitted: by the learned counsel for the respondent, the petitioner should have, first approached the learned Court which granted the bail, in view of the wording of section 497(5), Cr.P.C. and the observation made in Nazir v. Amir Din and another 1971 S C M R 637.

6. No reasons are assigned by the applicant to approach directly to this Court. In such a situation the application for cancellation of bail is dismissed. The applicant may approach the Court concerned, if so advised. N.H.Q./S‑501/K Application dismissed.