1989 P Cr (PLP)

According to the case of prosecution, on 8‑2‑1989 the Customs Officer received spy information that a huge quantity of gold was brought from Dubai by P.IA. flight No. PK‑224 and was removed to P.IA. Engineering Hanger in a P.IA. Suzuki van driven by Mahboob Ali the respondent herein. The Customs Officer then went to P.IA. Engineering Hanger and apprehended respondent Mahboob Ali. After being interrogated he led him and the Mashirs to a water tank meant for toilet of the engineering hanger and pointed out two leather purses in the water tank which were secured by them. These purses were found to contain 2,400 Tolas of contraband gold. After usual investigation respondent Mehboob Ali was sent up to stand his trial in the Court of Special Judge (Customs and Taxation), Karachi. On 25th January, 1989 the Special Judge (Customs and Taxation), Karachi passed an order granting him bail on following grounds:‑ (a) That a totally different version from the version given in the First Information Report was given in the charge‑sheet. . (b) That the respondent Mahboob Ali was being treated as a cardiac patient. According to the trial Judge it was the case of further probe into the matter This application under section 497(5) Criminal Procedure Code has been filed on behalf of the State seeking cancellation of the bail granted to respondent Mahboob Ali by the order mentioned hereinabove. Mr. Niaz Ahmed Khan appearing for the State states that there is nothing on the record which could enable the trial Judge to come to the conclusion that the Customs had given a totally different version in‑the charge sheet from what was stated in the First Information Report. According to him the statement recorded in the charge‑sheet and referred to by the trial Judge in the impugned order contained certain facts that were revealed during the investigation of the case after the First Information Report in the case was actually registered. He further argued that there is nothing on the record to show that respondent Mahboob Ali was a cardiac patient and was receiving treatment in P.I.A. hospital. According to him the trial Judge passed the orders on the basis of assumption of certain facts not borne out by the record. Patently the order passed by him in the case is perverse and deserves to be set aside by this Court. In support of his contentions he has relied on cases reported as 1977 S C M R 519, P L D 1981 Kar. 484 and 1980 P Cr. L J

602. Mrs. Ismat Mehdi, Advocate appearing for the respondent Mahboob Ali has contended that he was granted bail on 25th February, 1989 and since then he continues to be on that bail. There is no allegation by the prosecution that while being on bail all along he has acted in a manner which will render him liable for forfeiting such a concession. It appears that the trial Judge did not apply his mind carefully to the facts of the case. There appear to be no two contradictory versions given in the First Information Report and the charge‑sheet as found by him. The ground seems to have been taken in the bail application that the respondent was a cardiac patient receiving treatment in the P.I.A. hospital since 29‑6‑1982. Except such a statement made in the bail application there was no other supporting evidence like the medical certificate on record of the case to enable the trial Judge to come to the conclusion affirmatively that he was such a p patient and entitled to grant of bail. In the circumstances of the present case I am inclined to cancel the bail granted to respondent by the Special Judge (Customs and Taxation), Karachi on 25‑2‑1989. The order passed by the trial Judge granting bail to the respondent is hereby set aside, 'and bail bonds executed by him are cancelled. Non‑bailable warrants for his arrest be issued. MA.K./S‑426/K Bail cancelled