1996 PLP 1650 (MLD)

"He has referred to the following cases in support of his above submissions: (i) Ch. Zahur Ilahi, M.N.A. v. The State PLD 1977 SC 273; (ii) Said Mian and another v. Mian Said Baghdad and another 1980 SCMR 420; (iii) Haji Wali Muhammad v. The State 1969 SCMR 233; (v) Torab Shah v. The State, .1978 SCMR 430; (vi) Mir Akhtar Khan Khattak v. The State, PLD 1982 Pesh. 128; (vii) Abdul Hay‑uz‑Zafar v. The State, 1983 PCr.LJ 2010; The ratio of the above cases seems to be that the custody is never intended to be used as a punishment but it is designed to facilitate investigation or trial by making the accused available, whenever he is required and that if the case does not fall under prohibitory proviso of section 497, Cr.P.C. and the maximum sentence is less than 10 years' R.I., the Court will grant bail, unless there are some other compelling reasons to refuse the same." This authority under the circumstances is not applicable and helpful to the case of the accused/appellant inasmuch as the accused/appellants have prima facie committed the offence which is punishable up to 14 years which falls under the prohibitory clause of section 497, Cr.P.C. (11) 1989 MLD 861 ‑‑‑ Rae Aleem Khan v. The State: In this authority Saiduzzaman Siddiqui, J. his lordship (as he then was) has observed:‑‑‑ "The accused has been challaned under section 156(1)(8) of the Customs Act, 1969. The allegation against the applicant in the F.I.R. is that he attempted to smuggle Pakistani Currency amounting to Rs.14,37,500 which was concealed in the baggage .of the applicant. Learned counsel for the applicant firstly contended that the search in this case was carried on in violation of sections 158 and 159 of the Customs Act and as such the very basis of the case having been vitiated the case will fall under the category of further enquiry and the applicant is entitled to concession of bail. The alternate argument raised by the learned counsel for the applicant is that according to the statement made in the challan submitted before the Court the money did not belong to the applicant as it was handed over to him by the one Muhammad Umar in Karachi and was to be delivered to one Marian, shopkeeper in Dubai. In column No.2 of the challan the names of both the two accused are shown as absconders." In this background the bail was granted. A bare reading of the order is quite clear and has no relevancy to the facts of the present case. (12) 1991 MLD 443 ‑‑‑ Petitioner v. The State: In this authority S.M. Zubair, J. (as he then was) has observed: "After considering the respective submissions of learned counsel for the parties and perusing the record, I find substantial force in the submission of the learned counsel for the petitioner that in view of the judgment of the Federal Shariat Court in Muhammad Iqbal's case, sending of decoy witness in order to trap the accused in un-ethaical and against the spirit of Islamic justice. The prosecution is not entitled to send decoy witness to trap the accused in Shariat cases, hence the procedure adopted by the police officer in apprehending the petitioner is open to legal objection. The complainant should not be the Investigating Officer of the case, because the law requires that the investigation must be conducted by an independent person, who has no personal interest in case. The duty of the Investigating Officer is to bring all the relevant facts before the Court, whether those facts favour the prosecution case or not, to enable the Court to come to a just decision. In the presence of the proved enmity between the petitioner and the local police, as apparent from the proceedings of W.P. No.4204 of 1989, there was no legal justification with the police not to associate any public witness while effecting the recovery of the heroin from the petitioner, who were readily available as recovery was madle in the Bazar." This authority is also different and distinguishable from the facts of the present case and in my humble opinion is not helpful to the‑ present case. (13) 1993 PCr.L1 1124 ‑‑‑ Fateh Ali and another v. The State: In this case Mukhtar Ahmed Junejo, J. (as he then was) has observed as under:‑‑‑ "A huge quantity, of.gold weighing 10,000 Tolas and valued at rupees thirty seven million has been recovered from the Vehicle No. 1122 by which the applicants were travelling. Out of the applicants, Fateh Ali claimed being owner of the recovered gold having purchased the same from Choudhry Mushtaq through Haji Muhammad Usman Dumba Purchase of such a huge quantity of gold, cannot be for a reason other than its sale in a country where it can fetch more money. Fateh Ali may not be burdened with any liability for purchasing gold of that quantity from Choudhry Mushtaq. But the circumstances in which he was carrying such quantity of gold show that he intended to smuggle it outside the country. Reasonable grounds exist to show that applicant Fateh Ali is guilty of an offence punishable under section 156(1)(8) of Customs Act with imprisonment for 14 years. His application for bail is, therefore, refused." This authority under the circumstances is also not applicable to the present case. (14) 1994 PCr.LJ 14‑87 ‑‑‑ Ali Muhammad alias Ali Kuchi v. The State: The facts of this case are that allegation in the F.I.R. is, that while A.S.I. Inam Muhammad of P.S. Kalakot was patrolling the area, he got spy information that one person was selling 'heroin' in a lane known as Hidayat Shah's lane. On such information, at 14‑30 hours, applicant was arrested from the said place in presence of H. C. Muhammad Ashraf and P.C. Abdul Ghaffar and from the pocket of his shirt, a packet containing 100 grams of 'heroin' and cash amount of Rs.125 was recovered. He was arrested in presence of said Mashirs and sent up for trial. The facts of this case are not similar to the case of the present case. (15) PLD 1995 Supreme Court 34‑‑‑Tariq Bashir and 5 others v. The State: In this matter the Hon'ble Judges of the Supreme Court have held as under:‑‑‑ "In the present case, one Judge of the High Court on examination of the F.I.R., statements recorded under section 161, Cr. P.C. and the material collected during investigation was of the opinion that there were no reasonable grounds to believe that the accused were guilty of the offences alleged against them, whereas on the same material on record, another Judge of the same High Court had come to a totally different conclusion that there were reasonable grounds to believe that the accused persons had committed the alleged crime. The contrary conclusions arrived at by the two Judges of the High Court had made the existence of reasonable grounds to connect the accused with the crime doubtful, entitling the accused to benefit of doubt at such stage. In any case, the contrary views/opinions of the two Judges of the High Court about the guilt of the accused had made out a case of further inquiry within the meaning of subsection (2) of section 497,.Cr.P.C:" In my humble opinion that this authdfty is also not applicable to the present case. (16) 1995 PCr.LI 858‑‑‑Muhammad Imran v. The. State: The facts of this case are that on receipt of a secret information, the F.I.A. Authorities had formed a raiding party and saw the petitioner throwing bundles containing bottles of Acetic Anyhydride weighing 90 kilograms. They apprehended the petitioner on the spot. The petitioner made a disclosure to them that the chemical in question had been delivered to him at Railway Station Attari for passing it on to one Humayun at Lahore Railway Station. In my humble opinion the facts of this case are quite different and distinguishable from the facts of the present case. (17) 1995 PCr.LJ 1012‑‑‑Muhammad Amin v. The State: In this case Abdul Rahim Kazi, J. (as he then was) observed as under:‑‑‑ "That the search was not made and seizure was not made at the place where he was intercepted but the same was done at the office of the Customs situate at the airport. This by itself is contrary to requirement of law. In the present case as discussed above the prosecution has failed to prove that it was the same material recovered from the appellant which was sent to the Chemical Analyser 'for his report and that the recovery was made from the appellant in accordance with the legal requirements. In this view of the matter I am inclined to extend benefit of doubt to the appellant. " Mr. Abdul Rahim Kazi, J. '(as he then was) has decided this case in appeal where the prosecution at the Trial Court adduced evidence and the learned Judge of Customs and Taxation, Karachi, after recording evidence and discussed the same, and was pleased to convict the appellant to undergo R.I. for 6 years and to pay a fine of Rs.1,00,000 or in default to undergo further R.I. for one year, and after perusal of the evidence so recorded by the learned trial Court the appeal of the appellant was allowed. In my humble opinion this authority of this Court is not helpful inasmuch as in this case the evidence is yet to be recorded by the trial Court and after recording of evidence and hearing the plea of the accused/applicant the learned Judge will definitely decide the case on merit, therefore, this authority is not applicable to the facts of the present case. (18) 1995 PCr.LJ 1472‑‑‑Mst. Iqbal Bibi v. The State: The facts of this case are that on suspicion, a search was conducted and contraband heroin in two packs total weighing 100 grams was recovered from within the rear seat. Makhan Khan the driver and Mst. Iqbal Bibi a lady sitting on the rear seat were apprehended. Nothing was recovered from the personal search of Mst. Iqbal Bibi and the recovery was made admittedly from the vehicle. The facts of this case are not, applicable to the present case. Mr. Farooq H. Naek, learned D.A.‑G. has referred the following cases law:‑ (1) PLD 1981 SC 635 ‑‑‑ Muhammad and others v. The State: In this case a D.B. of the Hon'ble Supreme Court consisting of Nasim Hasan Shah and Aslam Riaz Hussain, JJ. their lordships (as they then were) have held as under:‑‑‑ "Even if the testimony of Mehnga, P.W.9, one of the recovery witnesses, is discarded, the evidence of Asghar Ali, S.I. P.W.11, is sufficient to prove the recoveries, because as held in a number of cases the testimony of a Policeman cannot necessarily be disbelieved merely because he is Policeman. " This authority is applicable to the case of the, prosecution that P.Ws. being Customs Officers, their evidence cannot necessarily be disbelieved. (2)1985 SCMR 382 ‑‑‑ Ibrahim v. Hayat Gul and others: In this authority the learned Supreme Court has observed as under:‑‑‑ "Be that as it may it is essential to point out that the concept of 'further inquiry' besides being misused in the grant of bail in many cases, the same has not been pressed in service when refusing to grant bail. " This authority is also helpful to the prosecution case. (3)1986 PCr.LJ 2728 ‑‑‑ Khalil Ahmad and others v. The State: In this authority learned Single Judge of Lahore High Court has observed as under:‑‑‑ "It was next contended that the offence was reported to the Police after about 20 hours which shows that the time intervening the incident and the reports was utilised for consultations and embellishment etc. Possibility of false implication could not be ruled out. This argument is equally without force. Delay in the F.I.R. has been explained in the report. The question whether or not the explanation will be plausible shall be determined at the trial in the light of evidence. Suffice to say that delay in report is not applied like rule of limitation in civil cases. The number of injuries tends to show that the number of assailants may not be less than five as alleged in the report." In this case also the prosecution has sufficiently explained the delay of few hours‑in lodging of the F. I. R. because the Mazda Truck was intercepted and thereafter it was brought to the Collectorate of Customs and Intelligence and after proper search N.I.C., L.T.V. Driving Licence and Registration Book of Mazda Truck of the applicant Majeed Ahmad were seized and whatever hours were consumed by the prosecution is not delay in its proper perspective. (4)1988 SCMR 64 ‑‑‑ Alam Masood v. The State: In this case the Hon'ble Supreme Court has observed as under:‑‑‑ "It was submitted by the learned counsel that the bail should have not been refused as he was a mere carrier. We have heard learned counsel at some length but, in bur view is not a fit case for, interference. ". In the above‑referred case the petition was dismissed as such it is helpful to the case of the prosecution. (5)1988 SCMR 1899 ‑‑‑ Nadir Khan and another v. The State: In this authority the kon'ble Supreme Court have observed as under:‑‑‑ "The car was being driven' by Nadir Khan petitioner. Sadiq Jan petitioner was present in it. It was found that Heroin was concealed in the rear seat of the car and six other secret cavities specially made in both the bumpers, both the front mudguards, one more near the oil tank and the other near the Silencer Drum. For a proper search the Vehicle was brought‑ to Model Town, Bahawalpur and 49 k.gs. of heroin was recovered along with one pistol and 15 cartridges. We have gone through the evidence on record and find that the petitioners had the charge of vehicle for a long journey starting from Peshawar and terminating at Karachi. They had the driving licences also. As being persons incharge of the vehicle for such a long journey they must be saddled with the necessary knowledge with regard to the vehicle and its contents. The probabilities or the presumptions are all dependent on the circumstances of each case and in the present case the circumstances fully establish their knowledge and awareness of the contents and their explanation showing the ignorance actually strengthens that conclusion rather than weakening it. As regards the lenient treatment to be afforded to the petitioners as mere carriers: It is one of the maxims of the criminal law that a confessing accused is to be dealt with leniently. There are reasons for it because though belated such a confession assists the administration of justice, lends credibility to the prosecution and helps locating the persons who have greater responsibilities in the matter than the criminal himself. But such leniency cannot be claimed or shown to a person who denies the commission of the offence itself to the end rendering no help to identify the real and major culprits and only res6rts to it by way of an alternative argument to rely on being a helpless destitute carrier. " Whereas in the case in hand applicant Majeed Ahmad is not himself admitting that merely he was a carrier and someone else was the beneficiary. On the contrary he is totally denying the allegation of the prosecution and alleges that he was arrested from Malir and was thereafter brought at the Customs Directorate and Intelligence. The order of the Supreme Court referred hereinabove was passed in criminal petition for leave to appeal and the leniency if any, to, be shown to the carrier has been explained by the Hon'ble Supreme Court. I have heard the learned counsel for the parties and perused the authorities and discussed the same referred hereinabove. The delay whatsoever is I fully explained by the prosecution in the F.I.R. The accused applicant Majeed Ahmad was arrested on the spot and foreign Whisky and Beer have been seized by the Customs Authorities under proper Mashirnama. The prosecution has also produced the statement of the witnesses recorded during investigation. At the very initial stage the case of accused Majeed Ahmad is not that of mere carrier but he has totally denied the allegation of the prosecution and has not even furnished any plausible explanation for his presence alongwith the secured truck and the foreign Whisky and Beer near the T.C.S. Hanger. The incident was that of night time and prosecution has given explanation, whatsoever the time consumed was only due to odd .hours of the night. The documentary evidence' whatsoever collected by the prosecution, prima facie, shows that Capt. Hidayatullah and Syed Asif Raza are the members of the smugglers Syndicate and with their connivance they took active participation and thus crime 'was committed. The General Declaration Form Annexure ' B' shows NIL passengers and cargo whereas the accused Syed Asif Raza was allowed to travel as Flying Officer and Khalid Mahmood travelled . in the Craft as Flight Engineer. Annexures B/1 to B/13 Charter Invoice which shows that Khalid Mahmood has received payment of Rs.35,61,875 from T:C.S. Courier Services Management through Hidayatullah which shows complicity of all 3 accused in the crime. The contention of Mr.Rana M. Shamim that co‑accused Fahim Akhtar who allegedly fired manifest has been granted bail by the Trial Court is not tenable because record of the prosecution shows that accused Fahim Akhtar belongs to Shaheen Services as a Flight Operation Assistant which is totally different organization from the T:C.S. In the General Declaration Form neither it contains the name of Fahim Akhtar nor his signature which, prima facie, goes in his favour and the learned Trial Court has rightly granted bail to him. The documentary evidence, prima facie, shows that the applicants have facilitated, accelerated the momentum of smuggling of contraband goods from and into Pakistan and deliberately avoided to object to an unauthorized person, travelled. as Flight Engineer (Khalid Mahmood). The T.C.S. Flight was not scheduled passenger flight and thereafter there was no separate hold for packages or cargo, therefore, applicant Hidayatullah intentionally, deliberately allowed the cargo in the Craft 1 and allowed unauthorised person.Khalid Mahmood Shah to travel as Flight Engineer. The momentum of aircraft was monitored and a team of officers mounted surveillance at the General Aviation Area, Karachi Airport, therefore through their active action the truck containing foreign Whisky and Beer alongwith driver were intercepted. It is not tenable to believe that they have been falsely implicated by their fellow customs officers in this crime. The offence alleged is punishable up to 14 years' R.I. which comes under the prohibitory clause of section 497, Cr.P.C. prima facie, the prosecution has collected sufficient evidence against the accused/appellant and there are sufficient grounds to believe the accused/applicants have prima facie committed the offences punishable up to 14 years' R.I. The accused have been charge‑sheeted in the Court of law and evidence is not recorded and criteria for grant or refusal of bail is also to see that if there would be any possibility of tampering of the prosecution evidence if the accused are released on bail. In this case also there is every possibility that the accused/applicants may tamper with the prosecution evidence if they are released on bail. Keeping in view the authorities cited by both the parties, facts and circumstances referred here-in-above, there is no merit in these applications which consequently are dismissed. However, the accused/applicants may approach the learned Trial Court for bail after material evidence is recorded. These observations are tentative in nature and the learned trial Court should not be prejudiced during trial at all. N.H.Q./M‑44/K Bail refused.