IJAZ NISAR J,- This order will dispose of Crl.M.No.3988/B/1990 of Arif and Crl.M.No. 4076/B/1990 of Arshad and Aslam petitioners in a case under sections 156(1)8/92/178 Customs Act, 1969 F.I.R.No.24/90 dated 25.5.1990,PS, Rayya, District Sialkot.
2. The prosecution case in brief is that the Rangers had made a Nakabandi near Chowk Narang Chanan, District Sialkot on 24.5.1990 at 9 P.M. On seeing them, the petitioners tried to slip away but the rangers succeeded in apprehending them. On their search, 2 belts containing 1100 tolas of gold were found wrapped around the waist of Muhammad Aslam while belts containing 550 tolas of gold each were recovered from the possession of Arif and Arshad petitioners. The petitioners allegedly told the Rangers that the gold belonged to Haji Muhammad Nazir Gujrati and Hamayun and that it had been delivered to them for smuggling to India.
3. The petitioners applied for bail to the learned Special Judge Customs, Lahore but it was declined to them on 7.9.1990. Hence they have approached this Court.
4. It is contended that Muhammad Aslam petitioner was admittedly a resident of the same area from where the alleged recovery had been effect and that no notification under section i77 Customs Act had been issued specifying the quantity upto which a person could keep in his possession goods mentioned therein. He had claimed ownership over the gold in reply to a question put to him by the learned trial Court while framing the charge sheet. Indian Boarder was about two miles from that place and it could not be said that he intended to smuggle gold to India.
It is further submitted that there is a delay of 19 hours in the F.I.R. The import of the gold into Pakistan has been allowed by the Government. There is no mention in the recovery memos that the gold allegedly recovered from the petitioners was of foreign origin. There is no significance of the admission of the petitioners before the raiding party that they intended to smuggle gold to India, it is added. It is usual with the Customs/Rangers to falselty mention the names of affluent people as abetters or conspirators to grab money/bribe from them and after getting the same to let them off on the plea that no sufficient material had been found against them, it is stated.
5. The question as to whether the petitioners intended to smuggle gold to India or were making an attempt to do so has to be determined in the light of Central Board of Revenue and another vs. Khan Muhammad P.L.D 1986 S.C. 192) and if it be found to be a case of mere possession, the case would fall under section 156(89) of the ibid Act providing an imprisonment for a term not exceeding 6 years. Since the alleged recovery has already been effected, the petitioners are no longer required for the purposes of investigation. Accordingly, I admit Muhammad Aslam petitioner to bail in the sum of Rs.10,00,000/- (ten lac) with two sureties in the like amount to the satisfaction of learned trail Court. Arif and Arshed petitioners are also admitted to bail in the sum of Rs.5,00,000/- (five lac)with two sureties each in the like amount to the satisfaction of the learned trial Court.