1995 PLP 1302 (SCMR)

Abdul Hafeez Memon, Senior Advocate Supreme Court and A. Aziz Dastgir, Advocate‑on‑Record for Petitioner. Ikram Ahmed Ansari, Deputy Attorney‑General for the State. Date of hearing: 8th November, 1992. SAJJAD ALI SHAH, J.‑‑‑By this petition leave is sought against order dated 30‑8‑1992 of High Court of Sindh, Karachi, whereby bail application of the petitioner is dismissed. As per F.I.R. on 3‑3‑1992 at 11‑30 p.m. Customs Staff stopped Suzuki van at the junction of Shah Faisal Colony which was escorted alongwith three occupants to Headquarters of the Customs. In presence of Mashirs Sabir Khan and Gul Farosh, 2450 tolas of gold, silver ingots weighing 443‑992 KGs and foreign liquor were seized. In F.I.R. three accused persons named are (1) Muhammad Zahid son of Nisar Ahmed (petitioner before us), (2) Muhammad Zubair Mundiya son .of Ismail and (3) Mrs. Kulsoom wife of Ismail. Offences mentioned in F.I.R. are sections 2(s),164 and 156(1)(8)(80)(89) of the Customs Act, 1969.

2. Petitioner and co‑accused Zubair applied for bail without success before trial Court and the High Court. In interim challan presented on 17‑3‑1992, it is mentioned that both Zahid and Zubair brought gold from Dubai concealed in Joggers and were going to deliver the same to Sohail and Asif at the residence of Asif but intercepted on the way. Attempt was made to search the house of Asif but the same was found to be locked and nobody was available there. During investigation it was found that Mst. Kulsoom, mother of Zubair was owner of the vehicle and was ignorant and not concerned with business of her son. She was let off. Co‑accused Asif applied for bail before arrest which was granted by a learned Judge of High Court of Sindh at Karachi in Chamber on 29‑6‑1992. Asif owned consignment and produced a number of documents in support of contention that gold was legally imported in Pakistan as allowed under the law of the land. Prosecution. applied for cancellation of bail before this Court and the petition was dismissed with observation that remarks of the High Court in the order granting bail concerning case of co- accused are to be ignored.

3. Petitioner Zahid applied .for bail on the ground that ownership of the allegedly smuggled goods is admitted and documents have been produced to show that its import is legal but his bail plea is rejected by the High Court and that order is challenged in this Court. It is contended on behalf of the petitioner before us that co‑accused Asif has advanced defence plea and has produced number of documents to show that gold has been legally imported in Pakistan which is not a banned item any more. Reliance is placed on Notification dated 14‑11‑1989 according to which each passenger is allowed to bring into Pakistan 260 tolas of gold. Legality of this Notification is not challenged by the Deputy Attorney‑General and Investigating Officer who are present in the Court but stand is taken that documents are forged and do not relate to gold which is subject‑matter of this case.

4. Now the questions arise whether defence is true or not or documents produced in support thereof are genuine or not. These questions are to be decided by the trial Court, duty of which is to analyse the whole evidence and consider defence plea in juxtaposition with prosecution case, till then it does become a question of further enquiry as is contemplated under section 497, Cr.P.C. Another important factor is that the main accused who has admitted ownership of the consignment is released on bail by the High Court which is not cancelled by this Court and, therefore, has attained finality. If at all prosecution succeeds in proving case against the petitioner, his role is not more than that of a carrier. We, therefore, leave it to the trial Court to appraise evidence and decide this case strictly according to law. Resultantly we grant bail to the petitioner in the sum of Rs.5 lacs (Rupees five lacs) with one surety and P.R. in the like amount to the satisfaction of the trial Court. N.H.Q./M‑3030/S Bail granted.