1. The charge against the applicant Babar Aziz is under section 156 (1), clause (8), Customs Act, 1969.
2. The First Information Report was regis--tered in respect of the offence on 1November, 1980 at 10.00 p.m. At tile Customs House, Karachi by Mr. Mohammad Ashraf, Inspector, Preventive Service, Custom House, Karachi.
3. The F. I. R. Reads as under "On 1November, 1980 while I was on duty at International Depar--ture Hall Terminal-I Karachi Airport and the briefing of Gulf Air flight No. G. F. 761 which was scheduled to leave for Dubai, was in progress, I received a tip to the effect that a Suit-Case and Fruit Basket containing cantrabands have been briefed at the Gulf Air counter and in the process of loading at the aircraft. Subsequently I in the presence of two Musheers, namely Shaheer Yusuf and Riaz A. Khan of Gulf Air intercepted the entire baggage which was, earlier briefed and was lying in a trolly for onward loading at the aforesaid flight. The joining passengers of the above flight were asked to identify their respective packages and all the places of baggage were identified by the passengers but a suit-case and a fruit basket bearing Gulf Air tag Nos. 96433 and 96001 respectively were left unidentified and were not claimed by any of the passengers travelling on the above flight. Finally both the said packages were removed to the Customs Examination Hall Terminal-1 under escort of the said Musheers were examined in their presence which resulted in the recovery of large amount of Pak. Currency alongwith assorted foreign currencies as mentioned in Column No. 5. The whole amount of currencies was seized under a proper mashirnama pre-- pared on the spot."
4. The following currencies were recovered from the unclaimed packages:--- (i)Pak currency of 100 denomination notes26,80,000st st (ii)Saudi Rials 23,398 (iii)Kuwaiti Dinars 379 (iv)U. A. E. Dirhams 4,705 (v)Australian Dollars 154 (vi)French Franks 100 (vii)Qatar Rials 1198 (viii)Omani Rials. 58 ' During the investigation the documents of flight G. F. 761 dated Ist November, 1980 and the airline staff were examined. It was revealed that out of the additional booking of twelve passengers, passenger Babar Aziz was found to be the person who did not travel by the aforesaid flight, although be had been briefed by the airline, but did not board the plane. His name appeared at serial No. 36 in the list of passengers and was subsequently deleted. It is, therefore, argued that these circum--stances indicate that the applicant had brought the baggage containing the contraband currency and after briefing finding out that the Customs staff was carrying out a check-up disappeared from the Airport. Investi--gation further revealed that Babar Aziz and one Ghulam Rasool booked their passage through King Associates Travel Agency, Sialkot. The immigration record also bore out that the applicant did not travel by the said flight, but his travelling partner Ghulam Rasool left by the same flight. After obtaining the particulars of his passport from the Passport Office, Lahore, it was found that his passport had been issued from Lahore on 10th June, 1975. His address was also obtained from the record of the Passport Office, Lahore.
5. On the aforesaid investigation interim charge-sheet was submitted in the Court of the Special Judge on 23rd December, 1980 showing the applicant as absconding accused. In pursuance of a warrant of arrest issued by the Court a Customs party was despatched who succeeded in arresting the applicant with the help of the staff of the Collectorate of the Central Excise & Land Custom on 12th January, 1981.
6. The applicant's request for bail was rejected by the trial Court on 26th January, 1981 mainly on the ground that the investigation was still underway and, therefore, the application was premature. The applicant now seeks release on bail by the present application. During the pendency of this application the prosecution was given opportunity to complete the investigation and now the final challan has been submitted before the trial Court on 17February, 1981.
7. The State counsel placed before me the investigation papers and sub--mitted that the investigation shows that the applicant had been briefed at the airline counter, but later on his name was deleted from the passenger manifest as he or some other person on his behalf collected the processed coupons. The applicant is said to have obtained the refund for the aforesaid ticket subsequently. It was also found that one M/s. King Associates, Sialkot had referred the application of the applicant for grant of P-Form to the State Bank, Lahore. The scrutiny of the P- Form revealed the identity card number of the applicant dated 28th October, 1980 alongwith his photograph. The airline ticket coupons were sent for from Bahrain through the Gulf Air which tallied with the airline ticket mentioned in the airline documents earlier secured. Learned State counsel has opposed this application and has mentioned the following circumstances from the prosecution evidence :-
(1) Name of the applicant appears on the ticket.
(2) The, P-Form application made by the applicant mentions his journey froth Lahore to Kuwait.
(3) His name appears on the passengers list which was subsequently cancelled.
(4) Application made by the applicant for duplicate Identity Card dated 28th October 1980 for the journey in question.th
(5) P-Form way actually issued by the State Bank in the name of the applicant on 30October, 1980.
(6) Reservation Card dated 31st October, 1980 of airline bears the name of the applicant.
(7) Addition/Deletion List of the airline mentions the name of the applicant at serial No. 8.
(8) Final List of passengers after briefing mentions his name at serial No. 36 which was afterwards deleted.
8. On the aforesaid circumstances it is contended by the learned counsel for the State that there are reasonable grounds to believe that the appli--cant is guilty of the offence charged and, therefore, he is not entitled to bail.
9. On the other hand, it is urged on behalf of the applicant that the evidence relied upon by the prosecution is wholly circumstantial. It was, pointed out that on the present evidence available with the prosecution no --nexus has been established with the applicant so far as the commission w the offence is concerned. Counsel argued that although the offending baggage was detested on the spot no effort was made by the prosecution to obtain the baggage tags and connect them with the applicant or his alleged airline ticket, It was further pointed out that the returned coupon of the passenger secured by the prosecution shows nil baggage and, there fore possibility cannot be ruled out that one of the passengers who travel led by the airline on the flight in question dishonestly disclaimed the baggage in question to avoid implication in the offence. It was also urged that no identification test was held by the Investigating Officer of applicant through the airline staff to fix his identity and their statement are admittedly based only on the record maintained by the airline stab Counsel also urged that the possibility cannot be ruled out that another person may have personated and utilized the name of the applicant for obtaining travelling documents. The State counsel conceded that passport of the applicant has not been secured.
10. On the evidence placed before me the only possible connection of the applicant prima facie appears to be his application for P-Form which purports to have been signed by him. The argument of the counsel for the applicant, however is that the signature on this document has still got to be proved at the trial and in any case this circumstance alone is not sufficient to prove the offence charged against the applicant. After giving careful consideration to all the circumstances. I am of the opinion that this is a case for further enquiry as to the guilt of the applicant at the trial when the trial Court will consider all the circumstances of the case and determine the question of the guilt of the accused. For the present, however, he is entitled to bail.
11. I, therefore, order that the applicant shall be released on his furnishing bail in the sum of Rs. 20 000 with one surety and P. R. In the like amount to the satisfaction of the trial Court.