1. On 10September, 1980, Mr. Mukhtaruddin, Intelligence Officer. Directorate of Intelligence & Investigation, Customs & Excise, Karachi registered a First Information Report against the present applicant undo, section 156 (1) clause (8) of the Customs Act, 1969. It was allege-- that the applicant was leaving for Rome by P. I. A. Flight when the staff of the Directorate intercepted him at the International Departure Hall, Karachi Airport after he had completed the briefing formalities, for departure. On being questioned, the applicant declared on the C. D. Form that he had no foreign currencies in his possession. Upon the search of his accompanied baggage the Custom Officers, however recovered 11000 U. S. Dollars from his brief case and from his persona search 240 sterling Pounds, 3633 Saudi Rials and 900 Pak. Rupees After preparing the necessary papers the applicant was of loaded and was put under arrest. He moved the trial Court for bail but his plea was rejected by order dated 18th September, 1980. He has now come before this Court with the prayer for grant of bail.
2. No argument was advanced on behalf of the applicant on the merits of the case. For the present purposes, therefore, the prosecution case stands prima facie unrebutted. Learned counsel, however, placed reliance on Amir v. State (PLD 1972 SC 277) and Ijaz Akhter v. State (1978 SCMR 64) and contended that bail cannot be refused merely on account of the embargo contained in section 497, (1) Cr. P. C. Relating to offences punishable with death or imprisonment for life or imprisonment for 10 years. In the first case cited by the counsel, their Lordships laid down that for purposes of bail law is not to be stretched in favour of the prosecution and hence if the offence made out against the accused falls under section 304, Part-I, P. P. C. The prohibition contained in section 497, (1) Cr. P. C. May not apply, as the offence was not necessarily punishable withth transportation of life as the other punishment provided therein was imprisonment for 10 years. It may be pointed out that this case pertains to the State of law existing before the amendment made in section 497, extending the prohibition to offences punishable with imprisonment for 10 years. The submission of the counsel was that the Court has to consider the circumstances of the case and assess tentatively the possible sentence that could be awarded in case of conviction to the accused on the facts of the particular case and, grant bail on that basis. In other words, the submission was that the prohibition is not attracted merely because the offence charged is punishable with the maximum sentence of 10 years. I am unable to find any support for this proposition from the case relied upon. Additionally the argument overlooks the first condition for grant of bail, namely, that there should appear no reasonable grounds for believing that accused has been guilty of the offence charged. It is therefore, necessary for the Court to consider the question whether there are reasonable grounds on the basis of the materials placed before the Court that he is not guilty of the offence charged or as provided by clause (2) of section 497, Cr. P.
3. C. That the case requires further enquiry into the guilt of the accused. The second case relates to offences under sections 420, 468, 471 and 409, P. P. C. In this case also the contention was that the charges against, the petitioner were not punishable with transportation for life and the only observation made by the Court was that it was correct. However, no rule has been laid down as urged by the counsel. It is well established that bail cannot be claimed as a matter of right by a person accused of a non-bailable offence particularly if it is punishable with imprisonment for 10 years or severer punishment. In a recent case reported as Mohammad Jan v. State (1979 SCMR 616) their Lordships dismissed the bail plea of the petitioners accused similarly of an offence of smuggling on the ground that the materials before them prima facie showed that the petitioners were involved in the commission of the offence. Since there is no argument on the merits, apparently at this stage there is no reason to believe that the applicant is not guilty of the offence charged.
4. It was next urged that in the case of Ibrahim Ghani vide Cr. Appeal No. 84 of 1979 the Supreme Court of Pakistan granted bail when the allegation against the petitioner was of smuggling currency worth over Rs. 22 lacs. I have perused the judgment in this case. The interim bail was granted to the petitioner when his petition for Special Leave was granted on the ground that the petition raised important questions of law. However, the appeal was disposed of and bail was confirmed without going into the questions of law raised by the petitioner on the short ground that the trial had nearly concluded and so it will not be worthwhile to cancel the interim bail. No proposition of law was laid down and the case was decided on its particular facts and circumstances.
5. It was lastly contended that there is no immediate prospect of the commencement of the trial as the Presiding Officer of the Court of Special Judge before which the case is pending is sick and confined to hospital. The learned State counsel informs me that the Presiding Officer has applied for one month's leave on grounds of sickness. It is, therefore, true that the trial may not commence within the next one month, but this ground alone, in my opinion, is not sufficient for the grant of bail.
6. It is now well established that delay per se is not a good ground for enlargement on bail. The delay, to constitute a ground for bail, must be unconscionable, amounting to an abuse of process of Court vide Karamat Ali v. State (1979 SCMR 438), Abdul Ghaffar v. Tanveer Ismail (1979 SCMR 289), Barkat Bibi v. Gulzar (1579 SCMR 65) and Hakim Ali v. State (1979 SCMR 114).
7. For the foregioing reasons, no case for bail has been made out and accordingly this application is dismissed. It will, however, be open to the applicant to 'repeat his prayer after some evidence is recorded or there is delay in the commencement or conclusion of the trial amounting the abuse of process of Court.
8. Bail not allowed.