1996 PLP 1448 (MLD)

3. The petitioner applied for bail to the learned Special Judge, Customs but their application was dismissed on 25‑1‑1996. The operative part of his order is as under:‑‑‑ "No doubt a woman may be granted bail in non‑bailable cases under Ist proviso of section 49'7(1), Cr.P.C. but this concession is subject to judicial discretion. The rulings cited by the learned counsel for the petitioners in this regard mostly related to cases other than smuggling. However, the case of Mst. Baboo Jana 1990 PCr.LJ 326 pertains to smuggling of heroin. But in the said case, the other circumstances were also taken into consideration while granting bail by the High Court. In the cage in hand, Miss Chong Boi Ling (petitioner No.2) along with the co‑petitioner smuggled diamonds into Pakistan for the third time. She travelled and remained with the co‑accused and finally caught with the smuggled diamonds. In my opinion, this is not a fit case for exercise of discretion in her favour. The ladies smugglers are the most favourite and efficient mode of smuggling. The petitioners have found this country as safe heaven as they could not be detected/apprehended, on their earlier visits, which encouraged them to continue the smuggling business unabated. There is a good, prima facie, case against the petitioners which is punishable with 14 years' R.I. They are not entitled to be released on bail at this stage. The bail petition is dismissed. "

4. It is contended on behalf of the petitioners that the learned Special Judge, Customs, Lahore has made the above observations without any basis, e.g. that the petitioners had smuggled diamonds into Pakistan for the third time and that the lady‑smugglers were the most favourite and efficient mode of smuggling and that the petitioners had found this country as safe heaven as they could not be detected/apprehended on their earlier visits which encouraged them to continue the smuggling business unabated.

5. It is further contended on their behalf that the City School premises wherefrom the diamonds were allegedly seized was neither a business premises of the petitioners nor their place of abode. It is the prosecution's own case that a lady who was present there with the petitioners succeeded in running away. It is next argued that diamonds were not a notified item, the import of which was banned into Pakistan. Section 2(s) of the Customs Act which specifies the smuggled goods is also not attracted as diamonds are not mentioned therein. The diamonds are not precious stone but are mineral, the import of which is allowed, it is maintained.

6. The petitioners had no means to know that the diamonds had been imported into Pakistan without the payment of Customs duty or that the Federal Government had by a Notification prohibited the import into or export out of Pakistan of the diamonds under clause (s) of section 2 of Customs Act, 1969.

7. Learned counsel appearing on behalf of the petitioners has cited Syed Shabbir Ahmed Shah and 2 others v. Pakistan and 3 others 1980 PCr.LJ 349 where in it ‑was held that Customs Act contemplates two separate categories of goods: one under clause (s) of section 2 and another import or export of which is prohibited under any other law including any other section of Customs Act, 1969 and that the offence of smuggling would be limited to former category only. The case of Ghulam Abbas v. The State 1988 PCr.LJ 435 has also been cited where it was held that goods not listed or notified under section 2(s) fall under section 156(1)(9) and takes the case out of the jurisdiction of the Customs Court.

8. It is argued by the learned counsel for the petitioners that at worst it may be a case of possession of smuggled goods bringing the offence punishable under section 156(1)(89) of Customs Act which entails imprisonment for a term not exceeding six years and 'fine which would also entitle the petitioners to bail as the offence would not 'fall within the prohibitory clause of section 497(1), Cr.P.C. The case of Munir Muhammad and 3 others v. The State 1976 SCMR 145 has been cited in this behalf.

9. Bail for Ms. Chong Boi Ling is also urged on the ground that she is a woman and mother of two minor children who are not being properly looked after for want of any of her family members in‑ Pakistan.

10. Learned counsel for the Customs Department has opposed the grant of bail to the petitioners. According to him the petitioners were caught red‑handed with diamonds of worth Rupees three crore and that there is an apprehension that they would leave the country without facing trial.

11. It is an admitted position that following the completion of investigation incomplete challan against the petitioners has been filed in the trial Court. The recovery of alleged smuggled diamonds has already been effected and no further recovery is to be made from them. There is an adequate safeguard against their abscondence as their passports have already been seized and are in custody of the trial Court. Alleged co‑accused of the petitioners, a Pakistani lady is stated to be at large, the premises wherefrom the recovery was allegedly made did not belong to the petitioners. The question as to whether the diamonds had been smuggled or imported without payment of Customs duty calls for further inquiry.

12. In view of these circumstances, I admit the petitioners to bail pending their trial. Wong Loot Keong shall be released on furnishing bail bonds in the sum of Rs.3,00,000 (Three lac only) with two sureties in the like amount while Ms: Chong Boi Ling shall be released on furnishing bail bonds in the sum of Rs.2,00,000 (Two lac only) with two sureties in the like amount to the satisfaction of trial Court.

13. The trial Court is directed to expedite the trial. N.H.Q./W‑1/L Bail allowed.