' On receipt of secret information that certain smugglers were to smuggle in foreign goods inside the country, Customs Mobile Squad No, 1, headed by Muhammad Gul, Deputy Superintendent Customs arranged "nakabandi" near Bara Gate, on 19th of August, 1984. At about 5.15 p.m. The raiding party confronted the smugglers in two Suzuki vans and two pilot cars. They were signalled by a constable to stop but the smugglers sped the vehicles. They even fired on the Customs staff.
The squad followed and fired in the air, and was thus able to stop Suzuki Van No, PRC-859, Muhammad Ayaz Khan was found on the driver seat while Sahib Gul sitting besides him. Both were apprehended. On search foreign made articles of substantial quantity and value were recovered from the van. The occupants of the other Suzuki were, however, able to flee away under the cover of firing. Report was drafted by Muhammad Gul, Deputy Superintendent mentioned above which was sent for recording formal F. I. R. At Police Station, West Cantt.
2. The two accused applied for bail to the Customs Judge but with no success. Thereafter they moved this Court (then presided by my learned brother Mr. Justice Faiz Muhammad Khan, J), who disposed of the application with the following observations:- "In the circumstances aforesaid, I do not consider that the petitioners are entitled to the concession of bail. I would, however, direct the Investigating Agency to submit challan to the Court of competent jurisdiction within 14 days and the learned Special Judge would try to conclude the trial within three months of the submission of challan to his Court. If the trial is not concluded within the said period then the petitioners shall be free to move another bail petition before the learned Special Judge who would dispose it of in accordance with law, uninfluenced by this order made by this Court."
3. The challan was not put in Court within the stipulated time, therefore, the petitioners once again filed application for bail which was, however dismissed by Special Judge (Customs) on 3-3-1985.
The petitioners have, therefore, submitted the present application on the following grounds :-
(1) That the learned trial Court has neither applied its mind nor taken into consideration the points urged before it and has disposed of the application by merely saying that the same arguments were repeated as had been discussed by the High Court in its order dated 28-11-1984.
(2) That it was specifically urged before him, amongst other grounds, that the provisions of section 156(8) of the Customs Act were not attracted hence the case did not fall within the prohibitory clause of section 497, Cr. P. C. There is no reference to it whatever in the impugned order.
(3) The fact that the order of this Hon'ble Court dated 28-11-1984 has not been complied with was a very important circumstance which coupled with other things, entitled the petitioners to bail. I heard the learned counsel for the petitioners as well as the learned counsel for the State and also went through the record.
4. It was urged that the case did not fall under the prohibitory clause of section 497, Cr. P. C. As in the facts and circumstances the offence was not covered by subsection (8) of section 156 of the Customs Act. As far as the other offences are concerned, keeping in view the maximum sentence provided for by law, the prohibitory clause will not be attracted.
5. In order to follow the arguments pressed in support of the contention of the learned counsel for the petitioners, it may be necessary to refer to clause (8) of subsection (1) of section 156 of the Customs Act.
' It reads, that whoever commits any offence described in column 1 of the Table below shall, in addition to and not in derogation of any punishment to which he may be liable under any other law, be liable to the punishment mentioned against the offence in column 2 thereof :- {{TABLE}} Offenceb Penalties Section of this Act to which offence has reference 1 2 3 If any goods be smuggled into or out of Pakistan Such goods be liable to General confiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods; and upon conviction by a (Special Judge) he shall further be liable to imprisonment for a term not exceeding (ten years) and to fine not exceeding ten times the value of such goods, and if the (Special Judge) in his discretion so orders, also to whipping; (provided that, in the case of such goods essential to the life of the community as may be notified by the Federal Government in the official Gazette, the sentence of imprisonment shall not be less than five years and the person convicted shall also be awarded sentence of whipping, and the whole or any part of his property shall also he liable to confiscation.
In accordance with the provisions of the Prevention of Smuggling Ordinance, 1977; {{TABLE}} Evidently to bring an offence within the penal provision of this clause, it is necessary to ascertain either that offender has either smuggled the foreign goods into or taken out of Pakistan.
6. "Smuggle" has been defined in section 2(S) of the Act which means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs-duties or taxes loveable thereon.
7. In the instant case, it may be stated that it was not controverted that articles recovered, were foreign made and liable to the payment of customs duty. However, it was urged that in the facts and circumstances of the case referred to earlier, the offence was not covered by subsection (8) as the recovery was effected in the settled area and not on any one of the checking posts at the border of the Country. I feel reluctant to agree with the learned counsel in this regard. To my understanding no sooner the foreign goods were brought in without observing the provisions of law, for consumption in the Country or export, the offence under subsection 8 is completed. The matter, however, does not end here. Bail, in non-bailable cases, is a matter within the discretion of the c Court which no doubt is to be exercised with due care and caution on the facts and circumstances of each case.
8. It was next contended that in view of non-compliance of the order of this Court dated 28-11-1984, in letter and spirit, the petitioners have become entitled to the concession of bail. It was stated in this connection that the learned trial Court has not taken note of the complacency shown D by the Prosecution Agency to delay the disposal of the case.
9. It is clear from the order dated 28-11-1984 that the complete challan was to be put in Court within 14 days. However, the Prosecution Agency failed to comply with this direction and instead an incomplete challan was filed in Court on 12-1-1985 which was sent back to it on 31-1-1985 with the following observations :- "The case papers are, therefore, returned to Mr. Nasirud Din Alam, Dy. Superintendent Customs Investigation and Prosecution Branch, Peshawar with the direction that the said accused may be arrested or get declared as P. Os. Or their names may be deleted from the list of accused persons sent up for trial. This action must be taken and revised challan put in Court before 14-2-1985 treating the matter as Most Urgent."
10. The Prosecution Agency submitted a fresh challan on 19-2-1985 deleting the names of other four accused and placing them in column No,
2. Of the said challan.
11. Though we appreciate the promptness shown by the authorities concerned in detecting an attempt to smuggle and apprehended wrong duel but we cannot shut our eyes to the complacency shown in initiation Court proceedings against the accused. T wish that the authorities) concerned are equally, if not, more conscious of their duties, to bring the accused to Court for their trial.
12. The offence or offences even if proved as a result of trial, at the most, will result in punishment of the accused for ten years' R. I. They have been kept behind the bars since they were arrested. The learned counsel for the State when questioned was not in position to inform that the proceedings would be concluded during the coming month of April. In the circumstances, when the order of this Court with regard to the filling of challan and trial of the accused has not been complied within the period mentioned therein and it is yet to be established that the two accused-petitioners were the real beneficiaries and not the carriers, I am of the view that it shall be in the interest of justice that the accused-petitioners are admitted to bail in the sum of rupees one lac each with two sureties each in the like amount to the satisfaction of the Special Judge (Customs) concerned.