A case under section 156 (1) (8) of the Customs Act, 1969, was registered on 22-7-1985 at Police Station Factory Area, Lahore on the allegations that on an information received, a raiding party was constituted and it intercepted a car bearing No. LHH/9577, in which two persons, namely, Jamshed Iqbal alias Billu anal Muhammad Arif were travelling, near Qaenchi Amar Sidhu, a junction near Walton, Ferozepur Road, Lahore. On summary search, nothing was recovered. The car and its two occupants were taken to the Police Station for interrogation. Jamshed Iqbal allas Billu disclosed that under the back seat of the car, there was gold belonging to Ala-ud-Din alias Lawa, resident of 77/B-1, Gulberg, Lahore, which was to be delivered to one Sarjeet Singh alias Billu of Amritsar (India).
Car was searched and four cloth jackets were recovered containing sewed-gold weighing about, 6,000 Tolas worth l -- crore.
2. On 28-7-1985, Ch. Zia-ud-Din, brother of the aforesaid Ala-ud-Din filed Habeas Corpus Petition, saying that the house of Ala-ud-Din was being surrounded by the Police, inmates were being confined so also three servants, namely Yaqoob, Iqbal and- Kala Masih. When the case came up for hearing on 31-7-1985, the learned A.A.-G made a statement that "so-called detenus" are not being detained and that they are at liberty. Learned counsel for the petitioner submitted that the police had since left the premises but the three servants were not traceable. The learned A.A.-G.
Submitted that they were not, with the police". In view of the statement of the learned A.A.-G. The Habeas Corpus Petition was dismissed.
3. This is an application for bail after arrest on behalf of the were and a son respectively, of the aforesaid Ala-ud-Din. They had earlier applied for bail before' the learned Special Judge (Custom9); Lahore, who rejected the application vide order dated 4-8-1985 and another application by them was also dismissed on 29-8-1985.
4. Learned counsel for the petitioners has contended that the petitioner No. 1 is a woman and ailing.
The learned Judge at the preliminary hearing called for a report from the. Superintendent Central Jail, Lahore, whether the further detention of the petitioner No. 1 in custody would be injurious to her life. The report has been received from the Medical Officer, Central Jail, Lahore at' Kot Lakhpat. It is reported that "On auscaltation of chest there is ejection systobic murmar and basal crept, on the lungs bases J.V.P. Revised and liver is tender. There is oedema on feet. She is also suffering from chronic skin disease with oozing of greenish white material. She was also examined by me on 25- 8-1985, by Medical Report No. 171 and was sent to Lahore General Hospital for investigation.
Investigation report received and checked by the Medical Specialist/ Superintendent and she has been diagnose as a case of Hypothyrodism. There is cardic enlargement, and E.C.G. Changes suggestive of C.C.F. (Congestive cardic failure). Nature of the disease is such that she cannot be treated properly in jail hospital".
As regards the petitioner No. 2, who is the son of the aforesaid Ala-ud-Din, it; is contended by the learned counsel that he is a young boy who has recently been studying in the Aitchison College, Lahore, and has taken his F.Sc. Examination.
5. Learned counsel for the petitioners submitted that there is no evidence whatsoever against the petitioners and that they were not involved in the crime at all. He further submitted that after recording of the F.I.R. The house of the petitioners' husband and father respectively, in which the other members of the family were also residing was surrounded by the Police and all were confined, including the three Servants. When the Habeas Corpus Petition was filed in this Court, wrong information was given to the learned A.A.-G. To say that no inmates of the house was in the custody of the police Two of the, servants. i.e. Muhammad Yaqoob and. Sarwar Masih alias Kala were taken into custody and their, statements were got recorded under section 161, Cr.P.C. On 23-7- 1985 and that of the former under section 164, Cr.P.C. On 27-7-1985. In the statements under' section 161, Cr.P.C., the servants are alleged to have said' that when the jute bag was brought by Ala-ud- Din, it was taken to the basement where gold was sewed in jackets .By the petitioner No. 1 which were put in the bag, and, this was brought up to be put in another' car by the son of Ala-ud-Din, petitioner No. 2. However, in the statement under section 164, Cr. P.C. Allegation regarding sewing of the gold in the jackets by the petitioner No. 1 .Was not mentioned. He submitted that in no case the petitioners were. Committing any crime. He referred to 1969 SCM R 233 to say that the value of the subject-matter of the crime is not a determinative factor for grant or withholding of bail.
6. Learned counsel appearing for the State has submitted that the petitioners were abetting or conniving in the smuggling of the gold and, therefore, notwithstanding that one is a woman and the other is a student, they are not entitled to bail, the sentence being more than ten years.
7. The plea on behalf of the petitioner No. 1. Was repelled by the learned Special Judge (Customs) by relying on an unreported decision, where a lady accused of having in possession of 260 kilograms of Charas, facing the allegations under., section 3/4, Prohibition (Enforcement of Hadd)
Order, 1979, was refused bail. The learned Special Judge remarked that the lady was 'not granted bail for the reason that the co-accused of the lady were not co-operating with the police but did not give due consideration to the fact that the lady in the said case was herself found in possession of 260 kilograms of Charas. In the case in hand, there is no allegation against the petitioner-lady that she was in possession of the gold which was being smuggled. The only allegation against her is that she sewed gold in the jackets, which gold was being smuggled on the behest of her husband. The were is obliged to act according to the biddings of her husband and unless there is evidence that she was party to the crime and shares a criminal intent, there would hardly be any liability. In crime, mens rea is essential. This is without prejudice Besides, the petitioner No. 1 is an ailing lady and the certificate issued by the Medical Officer, Central Jail, Lahore at Kotlakhpat, shows that she cannot be treated properly in the jail hospital. In the circumstances, there is no justification to keep her in jail.
8. As regards, the petitioner No. 2, the boy, it is to be noticed that the allegation against him is that he put in the sewed jackets with gold unto the car, from which it was subsequently recovered.
Besides what has been stated above about mens rea for criminal liability, it is to be noted that the petitioner No. 2 is a young boy and has recently taken his F.Sc. Examination awaiting its result. The learned Special Judge referred to two decisions of the learned Supreme Court to observe that proviso to section 491 (1), Cr. P.C. Merely conferred discretion on the Court to admit the person on bail but does not entitle ground of bail as a matter of right and in both the cases the accused who were teenager were not admitted to bail". No doubt bail is not a right stricto senso but a discretion of a Court, yet it has to be exercised in favour of an accused if a case is made out. In the two quoted cases the accused were charge or accused of murder. The allegation against the petitioner No. 2 is not so very grave. His liability requires further enquiry. Therefore, there does not appear any compelling reason to keep him in detention, lest he becomes a hardened criminal. His detention for more than a month by now should teach him a lesson to be away from a situation where there is likelihood of his being involved and future ruined. His father, who is the principal accused, too would do better to give up his nefarious activities or at least not use his were and young boy for such activities.
9. In view of what has been stated above, the petitioners are allowed bail provided they furnish security in the sum of Rs.5,00,000 (Rupees five lacs only), each with two sureties each in the like amount to the satisfaction of Special Judge (Customs), Lahore.