1986 P Cr (PLP)

(c) Criminal Procedure Code (V of 1898)

S. 497--Customs Act (IV of 1969), S. 156(8)--Bail, refusal of- Accused caught red-handed and a heavy quantity of Charas seized from him--Case of co-accused who was granted bail found to be distinguishable--Sufficient material against accused found to be available--Reasonable grounds found to believe that accused had committed offence charged against him--Accused not found to be entitled to bail--Bail refused. (d) Criminal Procedure Code (V of 1898)

Ss. 497 & 167--Bail, refusal of--Remand--Accused remaining in custody of investigating agency for some hours after expiry of time given for remand--Some lapse found on part of investigating agency--Held, it was incumbent upon investigating agency to have remained -vigilant about expiry of time of remand--No approbation found for such lapse- However, said lapse appearing to have occurred due to inadvertence as no other motivation could be attributed to investigating agency--Accused not found to be entitled to bail on account of such little innocuous lapse. Subedar Pir Fateh Muhammad v. Crown P L D 1951 Pesh. 37 distinguished. S.M.A. Mahmood for Applicant. Mrs. Salima Nasiruddin for the State. Applicant Syed Asif Ali is Accused of offence under section 156(1) (8) of the Customs Act, 1969. He has applied for bail under section 497, Cr.P.C. and it is alleged against him that Pakistan Coast Guards Party headed by Major Shafqat Ahmed, acting on spy information, spotted a car in suspicious circumstances and signalled it to stop but the Car did not stop and was chased and after firing of shots in the air was over taken and stopped near Super Market of Clifton. This car was being driven by applicant Syed Asif Ali and on search of the car 100 Kilograms of Charas was recovered. Spy information was that a large quantity of narcotics was to be smuggled to Saudi Arabia in a ship which was anchored in the open sea and was to be reached through a small Hora (boat) from Gizri beach, which is near Clifton. During investigation another co-accused Aftab Ahmed was also arrested, who was subsequently granted bail by the trial Court. and bail plea of applicant Syed Asif Ali was rejected by the learned Special Judge (Customs and Taxation), Karachi, vide order, dated 18-8-1985. On merits bail plea is urged on the ground that both Mashirs who have attested recovery memo. are from Coast Guards raiding party and are not independent witnesses from locality as contemplated under section 103, Cr.P.C. Section 103, Cr.P.C. relates to the search of place and the requirement is that it should be searched in presence of two or more respectable inhabitants of the locality in which the place to be searched is situate. In the instant case on suspicion a moving car was chased and stopped near Super Market at Clifton. Coast. Guard Party was acting on spy information and members of the raiding party in a vehicle were chasing suspicious vehicle. Learned counsel for the applicant argued that witnesses from locality could have been picked up but it was not done on purpose. When it was put to the learned counsel as to who could possibly be available at such odd hour in the night, he replied that recovery was made in the early hours of morning and many joggers and Namazies could be available as a mosque was in the vicinity of place where seizure was made. Now in this context, perusal of F.I.R. and other relevant documents show that seizure was made at 4-30 a.m. on 17th July, 1985. Calendar for the year shows that on that day sun rose at 5-51 a.m. In the circumstances at 4-301 when seizure was made it was quite dark because it was one hour and 20 minutes before sun rise time, so there would not be even twilight. At such early hour at 4-30 a.m. on the day of incident Namazies and joggers could not be expected to be around. In such circumstances, it is understandable that because no other persons or passer by were available at such odd hour in the night, members of the raiding party were used as Mashirs. Section 165, Cr.P.C. authorises-police officer who is Incharge of the police section or making investigation to conduct search for the purpose of investigation into any offence, which he is authorised to investigate. Likewise section 163 of the Customs Act, 1969 authorises Custom Officer to make search for the purpose of recovery of any goods which are liable to confiscation in connection with proceedings under the provisions of that act. The same section further authorises officers in other agencies apart from customs to investigate and make searches. All officers of Coast Guards not below the rank of junior commissioned officer within their respective jurisdictions are authorised by the Government, vide S.R.O. No. 30(1) /1973, dated 3-1-1973 at. pages 43 and 44 of the Manual Vo1.I. Reference can be made to section 163 in Appendix I of General Manual of Customs Laws authorised by Mr. Justice (Retd.) Z.A. Channa. In the instant case search was made and investigation was conducted by Major Shafqat Ahmed of Coast Guards. No legal flaw can be found in the conduct of search. Applicant was caught red-handed and a heavy quantity of 100 Kilograms of Charas was seized. The other co-accused was granted bail for the reason that his, name transpired during the investigation and he was not caught at the spot red-handed. On merits. I do not feel inclined to grant bail to this applicant because in my opinion, there is C sufficient, material available with investigating agency on the basis of which, it can be said that there are reasonable grounds to believe that applicant has committed offence alleged against him and as such he is' not entitled to bail. Another argument raised on behalf of the applicant is that applicant remained in the custody of Coast Guards for some time after the expiry of the time given for remand. It is stated that applicant was arrested on 17-7-1985 and on the same day order of remand for custody of Coast Guard was obtained till 30-7-1985, which was for 13 days. Time of remand expired at 12-00 midnight on 30-7-1985 and the applicant was produced in the Court on 31-7-1985 during the office hours. In the circumstances it was submitted by the counsel for applicant that the applicant was in illegal custody of Coast Guard for about nine hours and for that reason proposition was put 'forward that applicant becomes entitled to bail. In support of the contention reliance was placed on the case of Subedar Pir Fateh Muhammad v. Crown P L D 1951 Pesh.

37. The facts of the reported case are entirely different and in that case bail was granted on the ground that the remand of accused had expired on 2-5-1951 and after that he remained in custody without remand and without any authorisation till 29th May, 1951 when he was released on bail by the. High Court. In such circumstances accused in the reported case remained in custody without remand for about 27 days. In the instant case, the order of remand obtained under section 167, Cr.P.C. Was to expire on 30-7-1985 at 12-00 in the midnight. Investigating Agency brought applicant in the Court on 31-7-1985 in the morning and presented the challan hence applicant was sent to judicial custody. It appears that there is some lapse on the part of Investigating Agency and it was incumbent upon them to have remained vigilant about the expiry of time of remand, It appears that the intention of the Investigating Agency was that no further custody remand was to be obtained but the applicant had to be sent to jail and for that reason they brought the accused to the Court alongwith challan so that he be sent to jail custody and in this process it appears D that accused was produced in the Court about seven hours after the expiry of 'time of remand mentioned in the order of the Magistrate. Fairly speaking, I find no approbation for this lapse but at the same time no other motivation can be attributed to the Investigating Agency and this appears to have been done due to inadvertence. I think that on account of this little innocuous lapse as stated above, applicant is not entitled to bail particularly when he is caught red-handed at the spot and a huge quantity of Charas is recovered in his presence from the car he was driving. Consequently bail application is dismissed. H.A.K. Bail refused.