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 sections 2(s), 156(1)(8), 70, 157,178 of the Customs Act, 1969 read with section 8 of the Foreign Exchange Regulation Act, 1947, and section 3(1) of I.T.C, 1950, at police station l&P Branch, MCC, Islamabad.
3. The allegation against the petitioner is that on 14.3.2015, she. Was apprehended at ASF Counter in the Rawal Lounge of Benazir Bhutto International Airport, Islamabad, when Waqas AS!, of ASF, considering her suit-case as suspicious, conducted search of the same and recovered therefrom US 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 v. 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.