' Through special order dated 8th of July, 2015, the Hon'ble Chief Justice has been pleased to entrust this petition to this Bench.
2. The petitioner has been unsuccessful before the two forums including the Court of learned Judge, Special Court, (Customs, Taxation and Anti-Smuggling) Rawalpindi/ICT and the learned Special Appellate Court, constituted under the Prevention of Smuggling Act for the Province of Punjab, as her petitions for grant of post arrest bail were dismissed by the said Courts vide orders dated 16.3.2015 and 29.6.2015, respectively. Hence, through this petition the petitioner seeks her enlargement on bail in case FIR No, 10, dated 14.3.2015, registered under sections2(s), 156(1)8, 70, 157,178 of the Customs Act, 1969 read with section 8 of the Foreign Exchange Regulating Act, 1947, and section 3(1) of I.T.C, 1950, at police station I & P Branch, MCC, Islamabad.
3. The allegation against the petitioner is that on14.3.2015, she was apprehended at ASF Counter in the Rawal Lounge of Benazir Bhutto International Airport, Islamabad, when Wages ASI, of ASF, considering her suitcase as suspicious, conducted search of the same and reovered therefrom U Dollars 506800. He then handed her over to the Customs officials who booked her in the said case.
4. It is the claim of the prosecution that the petitioner attempted to smuggle out of Pakistan US Dollars beyond the permissible limit.
5. Having heard the learned counsel for the parties, it is observed that the petitioner was admittedly apprehended at the ASF counter and by that time she had not appeared before the Customs Counter, where she was supposed to make a correct declaration of the contents of her baggage as provided under Section 139 of the Customs Act, 1969. She had not yet obtained boarding pass nor her baggage had been tagged to be placed in the aeroplane. Since the stage of making a declaration of the contents of her baggage had not yet arrived, therefore, it is yet to be seen as to whether the petitioner in fact intended to smuggle out of Pakistan the above said amount of US Dollars. Particularly, keeping in view the plea of the petitioner that the said amount of US dollars was the sale proceeds of her five plots, situated in Karachi and that she was to hand over the said amount to her brother, who was scheduled to arrive at Benazir Bhutto International Airport Islamabad from Dubai through the same Flight. This aspect of the case, to our mind, calls for further probe into the guilt of the petitioner.
6. The petitioner was arrested in this case on 14.3.2015 and ever since then she is behind the bars.
Being a female having no previous criminal record deserves some leniency in view of the 1st proviso to Section 497, Cr. P.C. It has been ruled by the apex Court in the case titled "Mirza Farhan Ahmad vs. The State" (2009 SCM R 304) that although the offence under section 156(1)(8) of the Customs Act, 1969 carries a sentence of 14 years imprisonment, but the act of taking foreign currency out of Pakistan beyond the prescribed limit was not immoral or anti-social in nature, but was technical. The relevant portion of the order of apex Court is reproduced below for the sake of convenience:- "Since it has not been controverted by the learned Deputy Prosecutor General, Punjab, that the petitioner is not a previous convict, he is ill and his custody is no more required for the purpose of investigation and though the offence punishable under section 156(1)(8) carries a sentence of 14 years' imprisonment yet, the act of taking out foreign currency out of Pakistan beyond the prescribed limit being not immoral or anti-social in nature rather technical because as per clause
(1) of the S.R.O in question, the Government itself has allowed taking out of Pakistan the amount upto US Dollars' 10,000/-or equivalent in other currencies, therefore, in our view a case for grant of bail in favour of the petitioner is made out. Accordingly, this petition is converted into appeal and allowed. The appellant shall be released on bail subject to his furnishing surety in the sum of Rs, 1,00,000/- (one lac), with P. R. Bond in the like amount to the satisfaction of the trial Court."
7. The petitioner has since been remanded to judicial custody as such she is no more required for the purpose of investigation. Thus her further detention will not serve any useful purpose.
8. In view of the above discussion, we are inclined to allow this petition which is accordingly allowed. The petitioner is admitted to bail subject to her furnishing bail bonds in the sum of rupees five lacs with two sureties each in the like amount to the satisfaction of the learned trial court. Bail after arrest granted.
KLIZ 2015 Criminal Cases 195 [Rawalpindi] Present: QAZI MUHAMMAD AMIN AHMED, J.
Nazam Hussain Versus The State Criminal Appeal No, 170 of 2012, decided on 23rd December, 2014.
MARRIAGE DURING EXISTANCE OF EARLIER MARRIAGE OF VICTIM --- (Knowledge)
Criminal Procedure Code (V of 1898)--- ---S. 410---Pakistan Penal Code, 1860, Ss. 496-A/376---Commission of offence---Factum of marriage---Appreciation of evidence---Validity---It was astonishing to find alleged abductee leaving home on a telephone call purportedly made by her husband, that too leaving her minor daughter home and without taking her parents into confidence and that she had not been able to recognize the voice of a person with whom she shared matrimonial intimacy---One would find it really hard to buy story of her being intoxicated and senseless throughout in her lengthy journey and return journey without raising a voice---Position taken by appellant was straightforward and consistent that he had contacted a valid marriage with alleged victim---Appellant could not be saddled with any consequence or responsibility if alleged victim concealed her previous status from appellant who was not expected to take such plea if he knew about subsistence of some earlier marriage---A person honestly believe himself to be the husband of a woman signatory to a matrimonial bond, in congeniality and harassing could not be penalized if on account of suppression of some material fact by his better-half, marriage turns out to be invalid or irregular-- Prosecution had not been able to bring on record even obliquely any circumstance which could remotely suggest conscious knowledge of prosecution's earlier marriage on part of appellant---Appellant was acquitted of charge---Criminal .
(Para 10)
[Prosecution could not prove that appellant knew that alleged abductee was already married.
Impugned conviction/sentence was set aside].
For the Appellant: Muhammad Iftikhar Hussain, Advocate. For the Complainant: Amjad Ghayas Dahnial, Advocate. For the State: Qaisar Mushtaq, ADPP. Date of hearing: 23rd December, 2014.
' QAZI MUHAMMAD AMIN AHMED, J. --- Through this criminal appeal, the appellant Nazam Hussain has assailed the judgment dated 09.02.2012, passed by the learned Additional Sessions Judge, Rawalpindi in case F.I.R. No, 226, dated 13.10.2010, regiitered under Sections 496-A & 376, P.P.C. At Police Station Kotli Sattian, Rawalpindi, whereby he was convicted under Section 496-A, P.P.C. And sentenced to seven years (07) years' imprisonment with fine of Rs, 30,000/- and in case of non- payment of fine to undergo S.I. For four months. He was also convicted under Section 376, P.P.C. And sentenced to 10 years with fine of Rs, 50,000/-. In default of payment thereof to further undergo S.I.
For six months. Benefit of Section 382-B, Cr.P.C. Was also extended to him.
2. Prosecution story as contained in the F.I.R. (Ex.PA/2) lodged on the complaint (Ex.P/A) of Kamran All (PW-1) is that he got married with Asifa Bibi (PW-2) on 25.04.2009 and from the wedlock a baby girl was born. According to the complainant, the marriage went on rocks and Asifa Bibi PW started residing with her parents four months before the occurrence. It is alleged that during this period she established illicit liaison with the appellant and it was on 06.10.2010 at about 1.00 p.m. That she left her parents' house on the pretext of visiting her tailor. It is prosecution case that Asifa Bibi PW was enticed away by the appellant in connivance with his brother Zahid Hussain, sister-in-law lshrat Bibi alias Nimra Bibi, Kausar Bibi daughter of Muhammad Qader and Naseeb Jan and while leaving she also took away Rs, 80,000/- and gold ornaments weighing 5 tolas.
3. After registration of case, Investigating Officer took investigative steps that included arrest of Zahid Hussain and Naseeb Jan on 15.10.2010. On 16.10.2010 Asifa Bibi herself surfaced, whose statement under Section 161, Cr.P.C. Was recorded by Muhammad Khan, S.I. (PW-7); she was also examined by a Magistrate under Section 164, Cr.P.C. On 19.10.2010 the appellant was arrested. Zahid Hussain and Naseeb Jan co-accused were exonerated and discharged by a Magistrate. Nazam Hussain appellant, lshrat Bibi alias Nimra Bibi and Kausar Bibi were sent to face trial.
4. Prosecution in order to bring home charge against the appellant, besides relying upon forensic report produced as many as nine witnesses. Mst. Asifa Bibi/Prosecutrix (PW-2) is prosecution star witness; her case in the Witness-box is that on 06.10.2010 she left her minor daughte in response to a telephone call made by the appellant impersonating himself as her husband. She alleged that she was administered intoxicant through a drink and became unconscious to regain her senses at Karachi in a three storey building where according to her she was ravished. It is further alleged by her that appellant forced her to marry him. It was on her persuasion; according to the Prosecutrix, that appellant accompanied her in a train on way back to Rawalpindi.
5. Confronted with the charge, appellant asserted valid marriage, relying upon affidavit (Exh.D/1) and a marriage certificate which according to the appellant was dishonestly withheld by the Investigating Officer; he appeared as his own witness in disproof of charge within the contemplation of sub-section (2) of Section 340, Cr.P.C. Appellant's stand in brief is that he neither enticed away nor abducted Asifa Bibi whom he married with the blessings and approval of her relatives, believing in all bona fide that she was competent to contract marriage.
6. The learned Trial Judge acquitted Mst. Ishrat Bibi alias Nimra Bibi and Mst. Kausar Bibi from the charge, however, while believing prosecution evidence qua the appellant convicted and sentenced him as mentioned above.
7. Learned counsel for the appellant contends that on prosecution is own showing Asifa Bibi, Prosecutrix left her parental house on her own while taking away cash and gold ornaments. An illicit intimacy is alleged between the appellant and the Prosecutrix by no other than complainant himself; that appellant, on solemn affirmation pleaded a valid marriage with Asifa Bibi and produced documentary evidence in support thereof and he as such cannot be saddled with consequences of any previous marriage of Asifa Bibi. According to the learned counsel solitary statement of Asifa Bibi (PW-2) cannot sustain the charge.
8. Conversely, learned counsel for the complainant has relied upon the position taken by the appellant during the trial and according to him appellant's admission of a marriage during the subsistence of earlier bond is a circumstance that proves the case to the hilt.
9. I have heard the learned counsel for the parties and gone through the record.
10. Prosecution case set up in Exh.P-A by Kaman Ali complainant PW-1 is diametrically irreconcilable with the position taken by the Prosecutrix. It is prosecution's own case that relations between Asifa Bibi and her husband were strained and she was living in her parents' house for that reason, then it is astonishing to find her leaving home on a telephone call purportedly made by her husband, that too leaving her minor daughter home and without taking her parents into confidence and that she has not even been able to recognize the voice of a person with whom she shared matrimonial intimacy. One would find it really hard to buy the story of her being intoxicated and senseless throughout in her lengthy journey to the shores of the Arabian Sea. Her return journey to Rawalpindi also terminated without raising a voice. Her testimony merits outright rejection.
' The position taken by the appellant is straightforward and consistent that he had contracted a valid marriage with Asifa Bibi. This he obviously would have done believing her competent to tie a knot with him. The appellant cannot be saddled with any consequence or responsibility if Asifa Bibi concealed her previous status from the appellant who is not expected to take such plea if he knew about the subsistence of some earlier marriage. A person honestly believing himself to be the husband of a woman signatory to a matrimonial bond, in congeniality and harmony cannot be penalized if on account of suppression of some material fact by his better half, marriage turns out to be invalid or irregular. Prosecution has not been able to bring on record even obliquely any circumstance which could remotely suggest conscious knowledge of Prosecutrix's earlier marriage on part of the appellant.
11. For the foregoing reasons, I allow Crl. A. No, 170/2012, set aside impugned judgment dated 09.02.2012 passed by the learned Addl. Sessions Judge, Rawalpindi and acquit the appellant from the charges. He is on bail, his sureties stand discharged. There was another error in the impugned judgment and that is omission of the learned Trial Judge to mention whether sentences awarded would run concurrently or otherwise; through acceptance of this appeal that too stands rectified.
Criminal .