' ALI SAIN DINO METLO, J.---Applicants Dawood Khan, Neik, Muhammad, Bedal, Majeed and Abdul Majeed were caught red-handed while smuggling 5118 bottles of foreign whisky valued at Rs.15 million, having failed to get bail from the Special Judge, have approached this Court.
2. Briefly the facts are that on 18-3-2006, Maritime Security Agency (MSA), on secret information, intercepted a fishing launch in Pakistan's waters, some 1011 nautical miles from Karachi port, and found it loaded with 5118 bottles of whisky. Five persons i.e. The above-named applicants, who were present in the launch, were brought to the port along with the launch and the whisky and were handed over to the Directorate of Intelligence and Investigation (Customs and Excise) Karachi, who registered the case against them.
3. Learned counsel for the applicants, firstly, argued that it was a case of no evidence against the applicants, as according to him, the personnel of MSA apprehending the applicants and seizing the liquor from their possession were not examined and cited as witnesses, but on being confronted that they were, he referred to certain discrepancies in their statements regarding the name of the launch etc. The learned Standing Counsel clarified that the launch did not bear any sign or name and, therefore, initially the authorities had to rely upon the information received from the applicants. In this regard, suffice to say that deeper appreciation of evidence cannot be undertaken at bail stage particularly when the case is fresh and trial has not commenced.
4. Secondly, the learned counsel argued that the applicants were innocent carriers; while the real smuggler and owner of the goods, namely, Tanoo had disappeared and was absconding.
According to him, bail could not be withheld as a punishment and there was no legal or moral compulsion to keep the applicants in jail. In support of his arguments he relied upon the case of Noorul and others v. The State (1976 SCM R 190) and an unreported order, dated 9-1-2006 in Special Criminal Bail Application No.75 of 2005 re. Imam Bux and others v. The State.
5. The learned Standing Counsel vehemently opposed the bail application and contended that the menace of smuggling, an offence against the whole society and the economy of the country, had increased to an alarming situation and the grant of bail to the applicants, who were caught red- handed while smuggling such a huge quantity of prohibited goods worth millions of rupees, would simply encourage smuggling. According to him, the applicants had removed and destroyed all signs and documents regarding the identity of the launch as well as their own identity and seemed to the professional smugglers. He argued that, except for their own statement before the Investigating Officer (which was inadmissible in evidence) there was no evidence to show that they were the innocent carriers and the actual smuggler and beneficiary was absconding accused Tanoo and contended that the precedents cited by the learned counsel for the appellants were not applicable to the facts and circumstances of the present case.
6. As regards the argument of the learned counsel for the applicants that the applicants were the innocent carriers and the actual owner of the goods was Tanoo (shown absconder in the interim charge-sheet), it may be mentioned that, except for their own statements before the Investigating Officer (which according to Article 38 of Qanun-eShahadat, 1984, were inadmissible in evidence) there was no evidence to show that they were the innocent carriers and Tanoo or for that matter Abdul Rasheed, alleged owner of the launch, were the real beneficiaries. Can a murderer be granted leniency merely on his claiming to be a hired assassin or a robber, on claiming that he had robbed the property for somebody else or a cheater, on claiming that he had cheated for others.
The precedents relied upon by the applicants' counsel are quite distinguishable. In the case of Ali Muhammad and others v. The State (1992 SCM R 696) the accused, caught red-handed while smuggling into the country a big quantity of goods worth Rs.10 million in a launch, were denied bail by the Hon'ble Supreme Court.
7. As regards the ground of not withholding bail as a punishment, the necessary condition for that, as prescribed by Hon'ble Supreme Court in the case of Manzoor and 4 others v. The State (PLD 1972 SC 81), relied upon in the above-mentioned unreported order was the absence of reasonable grounds disclosing involvement of the accused in the commission of the crime. If Guth condition prescribed by the apex Court is not applied, then no accused can be denied bail in any case.
8. In the present case, the applicants were caught red-handed while smuggling into the country a huge quantity of prohibited goods and, therefore, it cannot be said that there were no reasonable grounds to disclose their complicity.
9. The contention of the learned Standing Counsel that despite enhancing the punishment for the offence of smuggling to rigorous imprisonment for 14 years in 1988, the menace of smuggling has increased, is not without force, inasmuch as it is the certainty of enforcement and not only the severity of punishment which deters the crime.
10. In view of the above mentioned facts and circumstances of the case, I am of the considered opinion that the case is not fit for the grant of bail. Accordingly, the bail application is dismissed.