MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The applicant has been arrested in F.I.R. No, DEC-70/2005-JIAP and interim challan has been submitted before the trial Court. The F.I.R. Reads as follows:-- "GOVERNMENT OF PAKISTAN COLLECTORATE OF CUSTOM (PREVENTIVE)
OFFICE OF THE DRUG ENFORCEMEN CELL JINNA H INTERNATIONAL AIRPORT, KARACHI FIRST INFORMATION REPORT Case F.I.R. No,DEC-70/2005/JIAP
1. Date, Time and place of Report 3rd September, 2005 at 1600 hours at the Office of Drug Enforcement Cell, Jinnah International Airport, Karachi.
2. Date, time and place of occurrence 3rd September, 2005 at 0745 to 1530 hours at Satellite Exit Gate No.24, and Custom Office, at International Departure, Jinnah International Airport, Karachi.
3. Name, parentage and address of the accused passenger.Khawaja Jamal Yousuf son of Muhammad Yousuf, Pakistani National, Pakistani Passport No.KE-606166 R/O. House No.106/B, K.D.A. Scheme No.1, Shahrah-e-Faisal, Karachi.
4. Description and value of the seized goods. (1) EURO 400,000 in denomination of 500 and 200 Euro notes (798x500 and 5x200) Equivalent To Pak.
Rs.2,98,00,000.(2) One small greyish blue colour hand bag, 02 Nos. white colour "pro sport" brand knee caps, a pair of black colour shoe, a pair of black colour socks and packing material as containers.(3) (a) One black colour "Top Best" brand hand trolley bag. Containing five mobile phones (two Nokia, three Samsung).(b) Overseas Pakistan Identity Card No.420009-481088-1.(c) Various International Domestic Airlines tickets of PIA, Aero Asia and Emirate Airline; miscellaneous cards/documents, Driving Licence.(d) Personal Wearing Apparels.(4) Pakistani Passport No.KE-606166.
(5) P.I.A. ticket Nos. 1 214 2401581917 0 & 2 214 2401416423 0.(6) Counter-foil of Boarding card issued by PIA for PK-207 Dt.3/9/05 in the name of Khawaja Jamal and(7) Two Cabin baggage security check tags Business Plus.Value Equivalent to Pak Rs.2,98,00,000.
5. Nature of offence. Violation of section 2(s) & 32 of the Customs Act, 1969 punishable under clause (8) and 14 of section 156(I) ibid.
6. Nature and designation of the complainant. ftikhar Hassan Khan, Senior Preventive Officer, Custom House, Karachi.
7. Brief facts.
A on the spot information was received on 3rd September, 2005 to the effect that huge quantity of foreign currency would be smuggled to Dubai by a unscrupulous passenger on board PIA Flight No,PK-207. Immediate inquiries made revealed that the boarding of the passengers bound for Dubai on the above mentioned flight had commenced from Exit Gate No,24 and there was every likelihood that the informed passenger might have passed through all the customs, A.S.F. Immigration checks. As such in pursuance of the aforesaid information, a team was constituted headed by SPS Shift International Departure J.I.A.P., Karachi which rushed to the International Departure Satellite next to the Exit Gate No,24. The team waited at the satellite till all the passengers of the above flight had boarded the aircraft. Thereafter the team entered the aircraft and segregated about eleven (11) passengers most of whom were frequent travellers to Dubai and their faces were familiar to some of the members of the team. As the segregation process was in progress inside the aircraft, a passenger later on identified as Khawaja Jamal Yousuf son of Muhammad Yousuf attempted to rush towards toilet of the aircraft but he was not allowed to do so. All the eleven passengers so segregated were brought outside the aircraft along with their hand baggage at the satellite next to Exit Gate No,24. Before the examination and personal search of the passengers they were asked whether they were carrying any contraband in their hand baggage or on person to which they all replied in negative. They were also asked whether they would like to be searched before a Magistrate or Gazetted Custom Officer as envisaged under section 159 of the Customs Act, 1969 but they did not express so. Accordingly the examination of hand bags and personal search of all eleven passengers was conducted in the presence of SPS Shift Mr. Imtiaz Ahmed and IPS Shift Mr. A. Saeed Khan and two Mushirs namely M/s. Saeed A. Khan and Munawar Ali. Nothing was found objectionable from the hand bags and person of ten of the passengers. These ten passengers were allowed to re-board the aircraft. The hand bag viz. Grayish colour small hand bag belonging to a passenger namely Khawaja Jamal Yousuf son of Muhammad Yousuf, holding Pakistani Passport No,KE-606166 who had attempted to rush to the toilet inside the aircraft at the time of segregation was conducted which led to the recovery of one packet duly wrapped with brown colour adhesive tape. Nothing objectionable was recovered from the other black colour "top Best" brand hand trolley bag belonging to the same passenger except the goods as mentioned in Column No,4 against Serial No,3(a to d). The packet recovered from the grayish blue colour small hand bag was ripped open and found to contain 100 Euro notes of 500 denomination amounting to 50,000 Euro. His personal search conducted in the presence of SPS/IPS and above mentioned Mushirs resulted in the recovery of four identical packets from each shin and ankle (two each) of the passenger. These four packets were also wrapped with brown colour adhesive tape and concealed inside the two white colour "Pro sport" brand knee caps under the black colour socks and black colour shoes worn by the passenger. The four packets so recovered from the personal search were cursorily examined and also found to contain Euro notes. A mushirnama to the effect was prepared on the spot. The passenger was off loaded and brought to the Customs Office at International Departure, J.I.A.P. Karachi along with his two pieces of Cabin baggage as mentioned above and five packets of currency along with containers escorted by the above said mushirs and raiding team. All the five packets were ripped open which led to the recovery of Euros in the denomination of 500 and 200 notes. On counting these were found to be 04(four) lacs. The Euro's so recovered were seized along with travelling documents, wrapping materials, mobile phones, documents and containers as mentioned in Column No,4 against Serial Nos. 1 to 7 under a mushirnama prepared at International Departure, J.I.A.P., Karachi. Representative samples from each denomination of the Euro currency were also drawn and sealed and signed by the undersigned as well as mushirs. Accused passenger named above was arrested and served with a notice under section 171 of the Customs Act, 1969. Detailed inventory showing serial numbers of all seized currency notes of each denomination has been prepared and also signed by the undersigned and mushirs.
Preliminary investigation revealed that the accused passenger is a frequent traveller to Dubai and he made more that 50 visits in the current calendar year. Further investigation is in progress to identify the financers and others involved in this abortive attempt of smuggling huge foreign currency out of Pakistan.
I urther investigation is in progress.
The F.I.R. Is lodged accordingly.
(Sd.)
(Iftikhar Hassan Khan)
Senior Preventive Officer, Complainant."
The first contention of Mr. Sohail Muzaffar, is that under the Protection of Economic Reforms Act, 1992, the applicant was at liberty to take any amount of foreign exchange out-side the country and it was not an offence. In support of his contention, he argued that certain restrictions were placed under the Foreign Exchange (Temporary Restrictions) Ordinance (VII of 1998), which came for consideration before a Division Bench of this Court, in the case of Agha Faqir Muhammad v. Federal Government of Pakistan 2000 M LD 1576, and it was held that the restriction placed under section 2 of the Foreign Exchange (Temporary Restrictions) Ordinance, 1998 was not absolute.
A perusal of the above cited judgment shows that it has no relevance to the present case, for the reasons that the Foreign Exchange (Temporary Restrictions) Ordinance (VII of 1998), was promulgated by the President of Pakistan, under Article 89 of the Constitution and subsequently it was repealed by the Foreign Exchange (Temporary Restrictions) Act, 1998, with effect from 25th of September, 1998. Secondly, the issues raised in the above cited case were entirely different than involved in the present bail application. Thirdly, the provisions contained in the Foreign Exchange (Temporary Restrictions) Ordinance,1998, were not the same, as contained in Foreign Exchange (Temporary Restrictions) Act, 1998, which was in force on the date of commission of offence. It is provided in section 2 of Foreign Exchange (Temporary Restrictions) Act, 1998 as follows:-- "2. Restriction on withdrawal of foreign exchange etc.--Notwithstanding anything contained in the Protection of Economic Reforms Act, 1992 (XII of 1992) or in any other law for the time being in force, or in any agreement or contract, it is hereby provided .That the right to hold, sell, withdraw, transfer, pay or take out foreign exchange held by any person in Pakistan as on the twenty-eight day of May, 1998, (the 'specified date') without the prior permission of the State Bank of Pakistan shall remain suspended: Provided that there shall be no legal restriction on any person converting his foreign exchange held as above into rupees at the officially notified rate of exchange.
Explanation.--For the purpose of this section "foreign exchange" means foreign exchange held in a foreign currency account or in such other form as the Federal Government may specify."
A perusal of the above provision shows that it contains an obstante clause, and consequently, shall override the provisions contained in the Protection of 'Economic Reforms Act, 1992, or any other law for the time being in force. The Protection of Economic Reforms Act, 1992, to the extent specified in section 2 of the Foreign Exchange (Temporary Restrictions) Act, 1998, shall remain suspended so long. This provision is on the statute book. It is clearly provided in section 2 of the Foreign Exchange (Temporary Restrictions) Act, 1998, that no foreign exchange can be taken outside the country without the prior permission of the State Bank of Pakistan.
In this case, there is no plea on behalf of the applicant/accused A that he possessed any prior permission of the State Bank of Pakistan for taking foreign currency out of Pakistan.
Mr. Sohail Muzaffar, has next contended that there is ambiguity in the law and it is discriminatory. The law is bad and ultra vires the Constitution, therefore, it is a case of further inquiry.
I am not persuaded to agree that the contention raised falls within the purview of further inquiry contemplated under subsection (2) of section 497, Cr.P.C. The expression further inquiry has been used in subsection (2) of section 497, Cr.P.C. In a particular context which is evident from the reading of section 497, Cr.P.C. Itself. It is provided that if it appears to Officer Incharge of Police Station or Court at any stage of the Investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused, shall, pending such inquiry be released on bail, or at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance.
A bare perusal of the above provision shows that in order to attract the provision contained in subsection (2) of the section 497, Cr.P.C. The condition precedent is that there should be sufficient material for coming to the finding that there are no reasonable grounds for believing that accused had committed a non-bailable offence. This is condition precedent for applying the provisions contained in subsection (2) of section 497, Cr.P.C. In fact, this is one of the most misinterpreted and misapplied provision in Cr.P.C.
This provision is not meant for the benefit of accused, but gives a concession to the prosecution, because ordinarily when there are no reasonable grounds for believing that an accused person has committed a non-bailable offence, he should be let off. However, the legislature has provided that if at the same time the prosecution is able to show that there are sufficient grounds for further inquiry, which may subsequently lead to the discovering of material implicating an accused person, then pending such inquiry the accused may be released on bail or execution of bond only, instead of being finally absolved of the charge. This further inquiry is confined to the facts and cannot be stretched in the extent Mr. Sohail Muzaffar, wants this Court to do, whereby he is challenging the very vires of statutory provision. The vires of statutory provision can be challenged through Constitution Petition and not while arguing a bail application. It is further against the established principle of law pertaining to the bail applications that even on fact the finer points are not to be considered which have to be left to be decided by the trial Court. The bail application is to be decided on tentative assessm ent only and not by a deeper appreciation of the facts of law. No doubt an accused person is entitled to the benefit of doubt at the bail stage also but a doubt should be shown to exist on a cursory reading of the evidence or law Which can be discerned by a tentative assessm ent of the material on record.
Mr. Sohail Muzaffar has further argued that there is a doubt if the foreign currency was recovered from the applicant. In this regard he has submitted-that the foreign currency is alleged to have been recovered from the possession of the applicant while he had boarded the plane. Mr. Sohail Muzaffar has contended that prior to boarding the plane a passenger is searched at several stages and therefore, if the accused was possessing foreign exchange the other agencies who had already searched him would have recovered the same from his possession. Again I do not find any substance in this contention at this stage first, for the reason that it would amount to deeper appreciation of the evidence which is not warranted and secondly, if a person is able to dodge one or two agencies or the other agencies have connived at the offence if not Collaborated, the prosecuting agency is not debarred from making recovery of the contraband money. According to F.I.R. 4,00,000 Euro equivalent to Pak Rs,2,98,00,000 are alleged to have been recovered from the possession of accused and at this stage, it is diffident to believe that such huge amount was foisted on the accused by the Law Enforcing Agencies. If some person is to be falsely implicated there is no necessity of foisting such huge foreign currency on him. Few hundred Euros could have been sufficient for falsely implication any person.
Mr. Mehmood Alam Rizvi, learned Standing Counsel has opposed the grant of bail, contending that there is nothing on record to show as to why the accused should be implicated falsely and such huge amount of 4,00,000 Euro be foisted on him.
I am persuaded to agree with the submission of Mr. Mehmood Alam Rizvi, learned Standing Counsel.
I am of the 'considered opinion that this is not a fit case for grant of bail and consequently, the bail application stands dismissed.