1980 P Cr (PLP)

The petitioners are accused of offences punishable under section 156 (1), (8) and (89) of the Customs Act. The allegation is that in the course of a nakabandi in village Ghazi Kakka at 2 a. m. on 15th September, 1979, Car No. LEE-7677 was seen coming from the side of Shahdra. The raiding party signalled the car to stop but its driver sped off. On a chase by the raiding party in their jeep, they overtook the car. In the meantime three of the passengers of the car managed to escape while the fourth, i.e. Mir Muslim Khan alias Mir Sanam Khan (petitioner No. 1), was apprehended of the persons who had escaped, Shamas Din and Noor Din (petitioner No. 2) were identified. On search of the car. charas weighing 10 seers and opium weighing 2J seers, valued at Rs. 35,000.00, were recovered from a cloth bag inside the dicky of the car. The report was lodged at 11-15 a. m. the same day. Learned counsel for the State submits that Rs. 50, in Indian currency was recovered on personal search of Mir Muslim Khan after his arrest and that the same accused led to the recovery of additional 5 seers of charas from a hotel the same day, while Noor Din petitioner led to the recovery of 4 seers of charas from the same hotel on 18th September, 1979. He further states that the case is still under investigation and challan is yet to be submitted.

2. The petitioners applied for bail but the same was refused by the Special Judge, Customs, Lahore, on 2nd October, 1979, for the reason, inter alia, that the offence under section 156 (1), (8) was punishable with imprisonment up to ten years.

3. Section 177 of the Customs Act prohibits a person from being in possession of any goods notified by the Federal Government in any area to which the section was applicable. By Notification S. R. O. N-o. 309 (1)1170 dated the 22nd of December, 1970 the entire area of five miles "adjacent to the frontier of Pakistan with Burma and India" was notified to be the area to which the said section, i.e., 177, was applied. Under clause (s) of section 2 of the Customs Act, smuggling has been defined to "mean to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs-duties or taxes leviable thereon, .or any goods notified by the Federal Government in the official Gazette, in each case exceeding one thousand rupees in value. The Notification, which was issued in this connection, bearing S. R. O. No. 1426(1)/73, dated the 5th of October 1973, includes 'Narcotics" as item

29. The term "narcotics" is not defined in the Customs Act but according to its general meaning, as given in the Oxford Dictionary, it is -(substance) producing drowsiness, sleep, stupor, or insensibility". The items in question are apparently narcotics and as such are covered by the notification.

4. The contention is that the recovery cannot be said to have been made from the possession of the petitioners because according to the F.I. R. the goods have been recovered from the dicky of the car and that the petitioners were no more than passengers and as such cannot be saddled with knowledge of the contents of the dicky. It is also pointed out that the car did not belong to the petitioners but to one Mir Muhammad Jamal. It is further urged that the identification of Noor Din who had allegedly escaped from the car, could not be said to be free from doubt, particularly when the F. I. R. is lodged after a delay of over nine hours for which there is no explanation: It is next urged that mere possession could not lead to an inference of smuggling and as such at least para. 8 of section 156 (1) was not attracted and that the punishment that could be awarded under para 89 is only rigorous imprisonment up to 6 years and as such the petitioners could be granted bail.

5. The F. I. R. shows that the statement of Major Amjad Hussain complainant, upon which the formal F. I. R. had been entered, had been recorded at 3 a. m. If that were so, the allegation of delay will have no substance. However, the prosecution has to show as to why the statement which had been recorded at 3 a.m. could not be brought to the police station earlier than 11.15 a. m.

6. Mir Muslim Khan (petitioner No. 1) had been arrested, according to the F. I. R. in the very pursuit. He had subsequently also led to re coveries. The case is still under investigation. I, therefore, see no good reason to grant him bail at this stage. The application qua him is dismissed.

7. As regards Noor Din (petitioner No. 2), the question of his identifi cation does require further inquiry because he is one of the persons who had allegedly escaped from the scene. In the circumstance 1 admit him to bail on his furnishing a bond in the sum of Rs. 25,000.00 (rupees twenty-five thousand only) with one surety in the like sum to the satisfaction of the trial Court.