1. ' Abdul Aziz, the respondent herein is facing trial under section 156(1)(8) and section 157 of the Customs Act in the Court of Special Judge (Customs and Taxation), Karachi. The F.I.R. In this case was registered on 8-11-1988 on the complaint lodged by Muhammad Iqbal, the Lt.-Commander Marine Company, Headquarters, Pakistan Coast Guard, Karachi.
2. ' The facts briefly mentioned are that on 7-11-1988 the aforementioned officer received information that the respondent Abdul Aziz was bringing gold in his launch "Al-Bayan" from Dubai for being smuggled into Pakistan. On receipt of such information he kept surveillance on the seas and detected the said launch at 7-30 p.m. The whole party approached the launch and stopped it.
3. After observing legal formalities of the Customs he asked the respondent to file declaration that he was not carrying any contraband goods either on his person or through his baggage. As the officer was not satisfied with the declaration filed by him he conducted enquiry and the respondent led the Coast Guards Officer to his cabin. The cabin was opened with key taken out from his pocket and handed over to the said officer in presence of Mashirs. On the search of his beddings kept in that cabin 400 Tolas in the shape of 40 slabs of gold was secured. After usual investigation the respondent was sent up to stand trial before the Special Judge (Customs and Taxation) Karachi.
4. Four days thereafter an application for bail was moved on his behalf wherein one of the grounds taken was that he was the only son of his father supporting him in his old age Two days later an affidavit of his father was filed stating that one of his daughters was going to get married and the respondent was his only son to arrange the marriage ceremony etc. As the father due to certain ailment was not able to perform his duties. The bail application was heard on 28-11-1988 and the following order was passed: "Heard the learned defence counsel and the learned State counsel, who has opposed the bail application on merit.
5. ' From perusal of the Mashirnama, F.I.R., and the statements of the P.Ws. It is established beyond any reasonable doubt that the accused was having the possession of the gold in dispute recovered from boat 'AlBayan' inasmuch as the cabin was opened with the help of the keys provided by the accused and the gold slabs were recovered from the bedding of the accused, lying in the aforesaid cabin. As regards the contention that the recovery was not witnessed by the independent mashirs or that the report of Essayist in respect of the gold in dispute has not been obtained, it is to be observed that they cannot be considered at this stage.
6. ' The learned defence counsel filed an affidavit of the father of the accused and also made a statement at the Bar that the marriage of one of the sisters was going to be solemnized and further that the accused was sole earning member of the family consisting of his old parents and sisters who are on the point of starvation and the marriage cannot take place until the accused is freed as he has to make all the arrangements and if he is not released then the marriage will not be solemnized and the life of his sister will be ruined which in turn will have a very shocking and adverse effect on the parents of the girl and they will be ridiculed by their kith and kin.
7. ' From the above, I am of the view that on compassionate and humanitarian grounds a case is made out for enlarging the accused on bail. Accordingly, I grant bail to the accused in the sum of Rs,3,00,000 with one surety and PR in the like amount.
8. (Sd.)
9. Special Judge (Customs & Taxation)
10. Karachi.
11. 28-11-1988."
12. ' On 10-2-1989 an application for cancellation of his bail was filed by the State and was rejected. A statement was made at the Bar on behalf of the respondent during the hearing of the application that marriage of his sister was not till then solemnized and was to take place on 10-3-1989. The Special Judge Customs declined to cancel the bail mainly on the ground that the respondent who was on bail since 28-11-1988 had not even in any way misused the concession of bail and, therefore, according to him, there was no ground for cancellation of his bail.
13. ' Mr. Niaz Ahmed Khan, Advocate appearing for the State has argued that the respondent was granted bail by the trial Judge on the ground that he was required to assist his old father to solemnize the marriage of his sister. The bail was granted to him on 28-11-1988 while till the passing of second order on 15-21989 the proposed marriage had not taken place and it was stated that marriage will take place on 10-3-1989. According to him, the trial Judge had acted in an arbitrary and capricious manner by allowing bail on such a ground. Reliance has been placed by him on the cases reported in 1980 P Cr. L J 602 and PLD 1981 Kar.
14. 484.
15. ' According to Mirza Adil Baig, the Advocate for the respondent it cannot be said that the gold was secured from the exclusive possession of the respondent. A number of persons in addition to "Nakhuda" (Captain) is required to operate a motor launch on the high seas. Besides the respondent has not misused the concession since he was enlarged on bail and has not acted in a manner that would warrant cancellation of his bail. It has also been stated that the marriage of his sister has since been solemnized on 10-3-1989.
16. The gold is said to have been secured from the bedding kept in the locked cabin of the launch. The cabin was unlocked by the key produced by the respondent from his pocket before the officer of the Pakistan Coast Guards. At this stage of the case when evidence has not as yet been recorded it cannot even tentatively be said that the gold in question was not secured from his exclusive possession. In cases where reasonable grounds appear for believing that persons accused of non- bailable offences punishable with death or imprisonment for life or imprisonment for ten years shall not be released on bail as provided by section 497(1) Criminal Procedure Code. Bail in such offences can only be allowed if their cases are covered by provision of section 497(2) of the Criminal Procedure Code. None of such grounds existed in the present case. The trial Judge as per his order was impressed by the aforementioned 'humanitarian' ground and he allowed him bail. He indeed formulated a fanciful ground unwarranted under the relevant law and exercised a discretion in his favour contrary to the established principles of law on the subject. In view of above, the respondent was not entitled to the grant of bail in the case and it is a fit case where a bail already granted by trial Court can be cancelled under section 497(5) Criminal Procedure Code.
17. The to him is hereby cancelled, he is directed to be arrested and taken into custody.
18. ' The trial Judge is directed to expeditiously complete the trial of this case within two months from the receipt of this order. The respondent after some evidence is recorded in the case will be free to move the trial Court for grant of bail and such application shall be considered on its own merit. .