1979 P Cr (PLP)

A. R. Khan for Applicants (in Spl. Cr. Application No. 3 of 1979). Mrs. Rashida Patel for the State. This- order will dispose of Special Criminal Bail Applications No. 2 and No. 3 of 1979 as both bail applications arise out of the same case. The applicants are facing trial under section 156(1), clause (89), Customs Act, 1969. Briefly the allegations of the prosecution are that on 6-2-1979 Head Constable Manzoor Hussain alongwith Police Constables Abdul Hamid and Manzoor Hussain of the Police Station, Gulberg, Karachi were on patrol duty when at about 5-00 a. m. they came across two Suzuki vans and one jeep on the main road in Block No. 6, F. B. Area near Aisha Manzil Chowrangi under suspicious circumstances. The Police party tried to stop the vehicles but met with resistance from the occupants of Suzuki vans who started firing with the revolver at them and succeeded in escaping alongwith Cloth Rolls loaded in the vehicles. However, the Police party succeeded in stopping the jeep which was found to contain 100 Rolls of smuggled cloth, which were seized and the present applicants who were occupying the jeep were apprehended. On further-investigation the applicants are alleged to have pointed out 192 Rolls of cloth from an under construction bungalow in F. B. Area owned by one Rehmat Ali. The applicants were sent up to stand their trial on 20-2-79. The applicants moved for theft release before the trial Court, but their request was turned down by the impugned order. It was urged on behalf of the applicants that admittedly the prose cution case is that the applicants are not the beneficiaries of the smuggled goods or in any way responsible for the smuggling thereof, but they were merely carriers. Accordingly in terms of the principles laid down by their Lordships of the Supreme Court in Noorul and others v. State (1976 S C M R 190) their case stands on a different footing from that of actual smugglers and beneficiaries of criminal acts. On behalf of State Mrs. Rashida Patel opposing the application contended that two of the applicants, namely, Lal Bux and Mazhar are habitual smugglers and have been involved in smuggling activities in the past. Therefore, they are not entitled to the concession of bail. In this connection she made reference to an adjudication proceeding in a case from Baluchistan where a truck loaded with smuggled cloth was appre hended and confiscated. This truck was claimed by Lal Jan as his property although be was not present at the spot. Mr. Mir Nawaz Khan Marwat, learned counsel for applicant Lal Buy, alias Lal Jan took strong exception to the consideration of this circumstance and submitted that the prosecution has not proved that Lai Bux, the present applicant was the same person who claimed the confiscated truck, but in any case, counsel went on to argue, the fact of confiscation of property in adjudi cation proceedings cannot be considered in the present case as it is not a previous conviction. As regards applicant Mazhar, it was pointed out that he is facing another trial in connection with an incident in July 1977 under section 156(1), clause (8), Customs Act, where also the said applicant was shown to be leading a vehicle full of smuggled goods on a motor-bike. It was, however, pointed out that the said applicant had been granted bail and his motor-bike had been released by the Customs Authorities under the Seized Conveyance (Interim Release) Rules, 1970 in which one of the necessary conditions is that there is no prima facie evidence that the vehicle was used for smuggling. The fact remains that the applicants are charged with an offence, which is not punishable with death or imprisonment for 10 years or more as offence under clause (89) of section 156(1), Customs Act is punishable with maximum penalty of 6 years imprisonment and fine. Thus there is no embargo under section 497, Cr. P. C. on grant of bail to them. Additionally the Supreme Court has laid down that the case of t3 carrier cannot be treated on par with the actual smugglers even in the case of smuggling punishable under clause (3) of section 156(1) of the Customs Act. Ordinarily, therefore, the applicants would be entitled to bail. As to the adjudication proceedings resulting in confiscation of the vehicle allegedly owned by applicant Lal Bux, apart from the dispute as to his identity in those proceedings, the question is open whether such evidence would be admissible in evidence at the trial in view of sec tion 54 of the Evidence Act in case the accused does not lead evidence of his good character. The pendency of a criminal prosecution against applicant Mazhar by itself is also no consideration for the refusal of bail to him in these proceedings. If the prosecution considers that he has misused the concession of bail in the previous case, it is always open to them on proper material to seek the cancellation of bail in that case under section 497, clause (5) of the Cr. P. C. It was submitted on behalf of the applicants that the C & F value of KT-cloth is about Rs. 2.25 per yard and the total quantity secured by the Authorities in this case will not be worth more than Rs. 7,000 in value. For the foregoing reasons, I grant bail to the applicants in the sum of Rs. 10,000 with one surety and P. R. in the like amount each to the satisfaction of the trial Court. Bail granted.