' RAHMAT HUSSAIN JAFFERI, J.--- On 18-11-2006 the applicant Muhammad Haroon Gaba filed application under section 185(t) of Customs Act, 1969 read with sections 497 and 498, Cr.P.C. For grant of bail.
2. Brief facts giving rise to the present application are that on 24-7-2006 in pursuance of spy information the complainant Mukhtiar Ahmed Channa, Senior Preventive Officer, Custom House, Karachi intercepted the applicant at customs house when the applicant, after scanning his baggage was proceeding towards the exit gate of Quaid-eAzam International Airport, Karachi as he arrived from Dubai by Flight No,EK-606. It is alleged that the complainant asked the applicant to declare whether he was carrying any contraband material in his baggage or with him to which he replied in negative. The complainant suspected the applicant. Therefore, he, in presence of two witnesses, checked the baggage of the applicant but no incriminating article was found in it. The complainant then conducted his body search in accordance with the relevant provisions of the Customs Act; 1969 (hereinafter referred to as the "Act"). During search he found 80 slabs of gold each weighing 10 Tolas and 4995 grams jewelry, tied around different parts of his -body. The complainant seized those articles, arrested the applicant and prepared such Mashirnama. A notice under section 171 of Act was served upon the applicant. Hence the case was registered against him.
3. The applicant moved the trial Court for grant of bail but his application was dismissed vide order dated 19-8-2006 passed by the Special Judge, Customs and Taxation, Karachi. The applicant challenged the said order before the Special Appellate Court Customs which was headed by a Judge of this Court but the said Court maintained the order of the trial Court by dismissing the application of the applicant vide order, dated 30-10-2006, hence the present application.
4. The office raised objection that the bail application was not maintainable. The learned Advocate for the applicant, taking the advantage of rule laid down by the Honourable Supreme Court of Pakistan in the case of Asghar Ali v. State 1999 SCM R 654, took the plea that the application was maintainable.
5. The learned Standing Counsel has supported the office objection.
6. The learned Advocate for the applicant has argued that the appeal against the order of Special Appellate Court Customs is not maintainable before the Honourable Supreme Court of Pakistan as held in the Case of Asghar All (supra) and that there is no other remedy available to the applicant, therefore, he can approach this Court for grant of bail.
7. We have gone through the rule laid down by the Honourable Supreme Court of Pakistan and found that the contention raised by the learned Advocate for the applicant is fully supported.
Nevertheless, the question is whether the application under section 185(f) of the Act read with sections 497, 498 and 398, Cr.P.C. Is maintainable to invoke the jurisdiction of the Court to which the reply is in negative because section 185(f) of the Act deals with the appeal to be preferred before the Special Appellate Court Customs against the decision made by Special Judge Customs. The applicant has already invoked the said jurisdiction and the Special Appellate Court has dismissed the application vide order dated 30-10-2006 which is impugned before us. We fully agree with the learned Advocate for the applicant that no further remedy is provided to the applicant after the dismissal of the application by Special Appellate Court. In such a situation the applicant can approach this Court to exercise its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to redress his grievances. Hence the application in the present form is not maintainable.
8. The learned Advocate for the applicant has stated that the application may be converted into constitutional petition and may be treated as such. The learned Standing Counsel has no objection in treating the application as constitutional petition and further added that this Court is competent under the said jurisdiction to examine the order of the Special Appellate Court.
9. Consequently, we convert the application into constitutional petition. The office is directed to assign the number to the petition.
10. We have heard the Advocate for the petitioner and Standing Counsel for the State on merits of the case.
11. The learned Advocate for the petitioner has admitted the recovery of 80 slabs of gold weighing 800 Tolas and golden jewelry weighing 4995 grams from his possession but taken the plea that he was simply a carrier as the said gold was owned by some other persons, therefore, the offence would not fall under section 156(1)(8) of the Act but it would fall under section 156(1)(89) of the Act, that the latter offence carries punishment of 5 years only, as such, the offence is not punishable with death or imprisonment for life. Therefore, the bail may be granted to the petitioner. He has relied upon the cases of Muhammad Imran v. State 1995 PCr.LJ 858, Fateh Ali v. State 1993 PCr.LJ 1124, Muhammad Rafi v. State 1997 PCr.LJ 1126.
12. Conversely, the learned Standing Counsel has stated that the petitioner had smuggled the gold and jewelry, therefore, the offence would fall under section 156(1)(8) of the Act which carries punishment of 14 years; and that the petitioner has failed to prove that he had paid the duty of secured articles or the articles were lawfully imported, therefore, the provisions of section 156(1)(89) of the Act are not applicable in this case. He has further stated that the admission of the learned Advocate for the petitioner regarding the recovery of smuggled gold and ornaments from the possession of petitioner is enough to disentitle the petitioner from granting bail. He has relied upon the case of Muhammad Jamil v. State 1993 PCr.LJ 2144.
13. We have given due consideration to the arguments, gone through the material available on the record, relevant provisions of law and case-law cited at the Bar.
14. Offence punishable under section 156(1)(8) of the Act provides that if any goods are smuggled into or out of Pakistan then the offender should be punished for imprisonment for a term not exceeding 14 years. Thus, the main ingredient of offence is smuggling. The word "smuggle" has been defined in section 2(s) of the said Act as under:-- ."2(s) "Smuggle" means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs duties or taxes leviable thereon,--
(i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and psychotropic substances; or manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goads notified by the Federal Government in the official Gazette, which, in each case, exceed five thousand rupees in value; or
(iii) any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs station. ' and includes an attempt, abetment or connivance of so bringing in or taken out such goods; and cognate words and expressions shall be construed accordingly."
15. Thus, the "smuggling" is nothing but also importation or exportation of goods, secretly or clandestinely without payment of duty. The smuggling also includes an attempt, abetment or connivance for so bringing in or taking out goods as mentioned in section 2(s) of the Act.
16. In the present case it is an admitted position that the petitioner came from Dubai. He reached Pakistan through Flight No,EK-606. The baggage was scanned but cleared. The complainant, after intercepting the petitioner inquired from him to declare whether he was carrying any contraband material in his baggage or with him to which he replied in negative. The complainant checked the baggage but nothing incriminating article was secured. From personal search the slabs of gold weighing 800 Tolas and golden jewelry weighing 4995 grams were secured which were tied around various parts of his body. The required notice was also given. The search was conducted in presence of two witnesses. Thus, it is clear that the action of the petitioner comes within the definition of "smuggling" as defined in section 2(s) of the Act. Furthermore, when in violation of prohibition or restriction or importation of gold secretly and clandestinely without payment of duty, is brought in the country or is about to leave the airport the process of importation is complete.
Thus, the offence would fall under section 156(1)(8) of the Act which is punishable upto 14 years.
17. The above view is supported by the decision of the Honourable Supreme Court of Pakistan in the case of Asghar Ali v. State PLD 2003 SC 250. In that case the accused was apprehended on the allegation that he was to export Pak currency and foreign currency. With regard to recovery of foreign currency it was observed that in a case in which a person is found in possession of smuggled goods it is for such person to explain the lawful possession. In that case the recovery of foreign currency was made from secret cavity of the vehicle. The accused failed to explain its lawful possession, therefore, it was observed that it would give rise to a presumption of guilt under section 187 of the Act. In such circumstances it was further observed that the part of transaction relating to the recovery of foreign currency from the secret cavity of vehicle would constitute an offence punishable under section 156(1)(8) of the Act. Consequently, the conviction awarded to the accused for the charge under section 156(1)(8) of the Act for keeping in possession the foreign currency without !Awful authority was maintained.
18. As regards the arguments of the learned Advocate for the petitioner that the petitioner was simply a carrier and the offence would fall under section 156(1)(89) of the Act, it is pointed out that for proving said offence the petitioner is required to show that he came into D possession of the gold through lawful manner and in such a manner which did not involve a breach of any provision of law. The said provision carries the expression "the proof of which shall be on such person" places distinctly on such person the burden of such proof. Secondly, he is also required to prove that he had paid the duty of E secured gold but no such evidence is available on the record to substantiate such plea.
19. The learned Advocate for the petitioner has stated that in the interim 'charge report it is mentioned that the gold was owned by some other persons. It is not out of place to mention here that at the time of arrest the complainant secured some bills in the name of other persons pertaining to the purchase of gold and ornaments from shops at Dubai. It appears that on the basis of such material the Investigating Officer formed such opinion. Nevertheless, the fact remains that it was the petitioner who alleged such fact, therefore, he has to prove the said plea before the trial Court at the time of trial. At this stage the bare statement of the petitioner would not be enough to prove the ingredients of section 156(1)(89) of the Act. However, to decide this point it requires production of evidence and its deeper appreciation which cannot be undertaken at this stage. Therefore, the arguments of the learned Advocate for the petitioner are not sound.
20. No further arguments have been advanced by the learned Advocate for the petitioner to challenge the orders of the two Courts below. As such the arguments advanced before both the Courts below have been abandoned by the learned Advocate for the petitioner, hence we do not find it appropriate to give any findings on such points.
21. As regards the authorities relied upon by the learned Advocate for the petitioner and Standing Counsel it is pointed out that these authorities were given by Special Appellate Court and not by High Court as held by the Honourable Supreme Court of Pakistan in the case of Asghar Ali v. State 1999 SCM R 654. The said decisions were given by inferior Court, as such, they are not binding upon this Court. At page 659. It has been observed as under:-- "The fact that a Court created by or under a law is presided over by a Judge of the High Court, therefore, would not make that Court a High Court. Many statutes provide that the Courts or Tribunals created thereunder shall be presided over by a sitting or retired Judge of a High Court or by a person qualified to be appointed as a Judge of the High Court. However, such Court when presided over by a sitting Judge of the High Court, does not acquire the status of a High Court by mere fact that it presided over by a serving Judge of the High Court. Similarly, a Special Court or a Tribunal, created under an Act and presided over by a serving Judge of the High Court, while hearing a case, exercise the same powers as are available to a High Court under the Code of Criminal Procedure or under other procedural laws, would not make that Court a High Court for this reason."
21-A. After considering the material available on the record we are of the considered view that the case of the petitioner falls under prohibitory clause of section 497, Cr.P.C. Therefore, he is not entitled to the concession of bail.
22. Above are the reasons of our short order, dated 20-12-2006, by which we had dismissed the petition.