1. ' The applicant is facing trial before the Special Judge (Customs & Taxation), Karachi on a charge of smuggling under section 156 (8) of the Customs Act, 1969.
2. ' According to the prosecution allegations on 12th June, 1979 the applicant who is a citizen of Sri Lanka was about to depart from the Karachi Airport by Gulf Air Flight No, GF-76, when on suspicion Mr. Qureshi, Senior Preventive Officer intercepted him after he had undergone the formalities of briefing at the Gulf Air Counter and his suit-case was secured. On his refusal to surrender the key of the suit-case the applicant was searched and the keys were secured from his person in presence of the mashirs. On opening the suit case with the aforesaid key, Pakistani and foreign currencies in huge quantity of the value of about Rs, 22,26,385 were recovered and seized. The Passport, airline ticket, baggage tag and key of the appellant were also seized and the applicant was arrested on the spot. Thereafter, the case on completion of the investigation was challenged before the Special Judge. The case has proceeded and the evidence of three prosecution witnesses has so far been recorded. They are Mr. Nasir Qureshi, Senior Preventive Officer and the Seizing Officer in the case, Mohammad Shafi, the loader of PIA who had picked up the suitcase from a car and taken it to the Counter of the Gulf Airline and Irfan Hussain, Assistant of the Plant Protection Department, Karachi who acted as mashir of the search, recovery of the contraband currencies and of the seizure thereof. However, the cross-examination of the last witness has been reserved at the instance of the defense counsel for the purpose of inspection of the currency in the State warehouse and its weighment after keeping the same in the suitcase vide order of the trial Court dated 16th August, 1979.
3. ' The order of the trial Court shows that a bail application in this case was moved as early as on 23rd June, 1979 but at the request of the defence counsel it was kept pending until about 18th August, 1979 when it was pressed and was dismissed by the learned trial Court. Since the grounds urged before the trial Court were based upon appreciation of evidence recorded in the case, the learned Judge while dismissing the application made the following observation :- "It will not be proper to appreciate or comment on the evidence of the witnesses at this stage, but the fact remains that two witnesses have supported the prosecution case, regarding the recovery of such huge Pakistani and foreign currencies of foreign countries as detailed above from the suitcase of the accused in the Departure Lounge of Karachi Airport."
4. ' In addition to the above the learned Judge also considered the fact of the applicant being a foreign national which indicated possibility of the applicant absconding if he is released on bail, ' Mr. Mir Nawaz Khan Marwat, learned counsel appearing for the applicant contended that the applicant has been falsely implicated by the Customs Officer in place of another passenger from whose suitcase the contraband currency was secured and foisted on the applicant. He referred to certain admissions made by the witnesses so far examined which according to the counsel clearly show that the applicant is not guilty of the offence charged. In this connection, he referred to the admission made by P. W. Nasir Qureshi to the affect that the air ticket secured from the applicant did not bear the date and the flight number but only the time. Further that the ticket showed the permissible baggage allowance as 20 Kilos whereas the suit-case was found to be 27. Or 28 Kilos and no ticket of payment for excess baggage was secured from the applicant. The witness had, however, denied the suggestion that the ticket had not been utilized. It was also pointed out that P.
5. W. Mohammad Shafi had disclosed the color of the suitcase carried by the applicant as black and having no lock, whereas the counsel submitted that the suitcase produced by the A prosecution has a lock and is not black in color. This witness also stated that the applicant had arrived in a big car whereas the car secured by the Customs Authorities was Toyota-Corolla which is a small car.
6. As regards the third witness Irfan Hussain, the mashir of recovery and seizure it was pointed out by the learned counsel that the witness had stated that the key was recovered from the possession of the applicant in the Departure Lounge whereas the seizure was effected in the Custom Examination Hall. Finally the counsel submitted that notice under section 171, Customs Act was not served by the Seizing Officer himself which reacts very adversely on the veracity of his evidence.
7. ' I have considered the submissions of the learned counsel and perused the statements of the witnesses so far examined. It appears that P. W. Nasir Qureshi has prima facie supported the prosecution case as disclosed in the F. I. R. And has produced among other documents the boarding card, counter-foil of the tag which according to the witness was attached with the current ticket of the applicant. He has also produced the counter-foil of the luggage tag. He has further testified that the number of the luggage tag tallied with the counter-foil. As regards witness Mohammad Shafi, it was pointed out by the learned counsel for the State that this witness was not declared hostile because he supported the prosecution in his examination-in-chief by stating that the suit-case in Court appeared to be the one which he had picked up from the car of the applicant at his bidding.
8. ' It will, therefore, appear that the bail in this case can only be granted upon a thorough evaluation of the evidence so far produced in the Court. Learned counsel for the applicant contended that the latest view of their Lordships by the Court at the stage of bail and invited my attention to Khalid Javed Gillan v. State (1). He also referred to some other decisions, but since the case of Khalid Javed lays down the latest law on the subject, I have not considered necessary to refer to the other cases cited. There is no doubt that in the cited decision their Lordships have held that tentative assessm ent of the material produced before the Court is permissible, indeed necessary for coming to a proper conclusion whether reasonable grounds appear for believing that the accused person is not guilty of the offence charged. However, their' Lordships have sounded note of warning that nothing beyond the 'tentative assessment' can be undertaken so as to go into deeper appraisal of the value of evidence. In my opinion, the law laid down by their Lordships has not displaced the well-established rule of warning that the Court) specially the superior Court, should refrain from pre-empting the trial Court of its function to determine the guilt of b the accused by a thorough sifting of evidence. On page 263 the final con- " elusion was expressed by their Lordships in the following words :- "an elaborate sifting of evidence is an altogether different thing fromthe tentative sifting of evidence which the Court is compelled to resort to in a bail application."
9. ' While considering the contention of the State Counsel their Lordships referred to the case of lqbalur Rehrnan v. State (2) in which bail was sought on the ground of alibi but was refused. Their Lordships distinguished the said case by pointing out that in the said case the prosecution had produced considerable evidence to implicate the accused and the statements had been recorded before the abolition of the committal proceedings. I have referred to this aspect of 1 the judgment of their Lordships to emphasize the fact that where evidence c has been produced by the prosecution implicating the accused the Court would be justified not to grant bail and leave the elaborate evaluation and sifting of the evidence to the trial Court.
10. ' As pointed out earlier and as rightly held by the learned trial Judge, there is evidence on record supporting the prosecution case, as well as some circumstances which would require consideration by the trial Court at the time of determining the guilt of the accused. It will not be proper to express any opinion on the value of the evidence or undertake the appraisal of the evidence as urged by the learned counsel for the applicant.
11. ' For the foregoing reasons, there appears to be no ground to allow the applicant bail at this stage.
12. However, it is expected that his case which is already making good progress shall be expeditiously disposed of. The application, therefore, stands dismissed.
(1) PLD 1978 SC 356 (2) PLD 1974 SC 83