Khyali son of Behram, Sabir son of Gul Abbas and Zahid Hussain son of Muhammad Hussain, the petitioners, by filing this Petition. seek post-arrest bail in case FIR No, 57/2007 dated 04.8.2007 registered with Police Station I&P Cell, Directorate of Customs & Intelligence, Lahore, for offences under Sections 156(1) (89) and 2(S), 16, 178 of Customs Act, 1969.
2. At the outset the learned counsel for the petitioners wishes to withdraw this petition to the extent of Sabir son of Gul Abbas (Petitioner No 2) reserving his right to move this Court again at an appropriate occasion. This petition to the extent of Petitioner No, 2 is dismissed as having been withdrawn.
3. Precisely the allegation against the petitioners No, 1 and 3, as unfurled in the FIR registered at the instance of Sikandar Idrees Bajwa Inspector Customs, was that on the day of occurrence i,e, 04.08.2007, on receipt of a secret information that a huge quantity of foreign smuggled cloth brought from Peshawar would be transported from Niazi Bus ,Stand, Bund Road, Lahore to Azam Cloth Market, Lahore in Pick-ups No, LXT-8546 and LHG-4089, a raiding party comprising of staff of Customs Department Lahore was constituted; about 16:00 hours on the same day two Pick-ups were seen coming from Niazi Bus Stand; on pointing out both the Pick-ups were hauled up and on interrogation the person sitting on driving seat of Pick-up No, LXT-8546 disclosed his name as Khyali Khan (petitioner), while the person sitting besides him, disclosed his name to be Sabir accused. Similarly the person sitting on driving seat of Pick-up No, LHG-4089, on inquiry divulged his name to be Zahid Hussain (petitioner). All the three persons were asked whether anything objectionable was loaded in their vehicles, to which they replied in the negative. Accordingly both the pick-ups were checked and on search 9300 yards foreign origin gent's suiting cloth valued at Rs, 1400,000/- had been recovered. On further interrogation one of the persons namely Sabir son of Gul Abbas claimed the ownership of the recovered cloth. On demand the above said three persons failed to produce any evidence, documentary or otherwise, in support of lawful possession or legal import of the recovered cloth of foreign origin. Resultantly the aforesaid case had been registered.
4. The petitioners were arrested on 04.08.2007 and are in custody ever since. Their plea for post- arrest bail did not find favour with the learned Special Judge Customs, Lahore who turned down their application vide order dated 18.10.2007. Hence this petition.
5. After hearing the learned counsel for the parties, it has been observed that the role ascribed to Petitioners No, 1 & 3 was that they were carrying the smuggled items whereas Sabir accused had claimed the ownership of the seized cloth, whose bail, as stated hereinabove, has been dismissed as having been withdrawn. The offence under Section 156(1)(89) of the Customs Act, 1969 with which the petitioners have been charged entails maximum punishment of six years imprisonment and fine not exceeding ten times the value of such goods, as such the prohibitory clause of Section 497(1) Cr.P.C. is not attracted. The rest of the offences i,e, Section 178 of the Customs Act, 1969 relates to confiscation of goods possessed by the accompanying person or persons, Section 2(s) is a definition clause, whereas Section 16 of the Act ibid, empowers the Federal Government to prohibit or restrict bringing into or taking out of Pakistan of any specified goods by air, sea or land.
The alleged smuggled cloth had been seized by the authorities concerned and it is yet to be determined during the trial whether the stuff recovered from the petitioners is smuggled and whether the provisions of Section 156(1)(89) of the Act ibid, are attracted. Even otherwise it also needs to be determined as to whether the petitioners were merely drivers of the vehicles or had any other interest in the cloth. Thus case of the petitioners falls within the purview of further inquiry entitling them to the concession of bail.
6. Resultantly this petitions is allowed and the Petitioners No, 1 & 3 are admitted to post-arrest bail provided they furnish bail bonds in the sum of Rs, 100,000/- (rupees one lac) each with one surety each in the like amount to the satisfaction of the learned trial Court.