1. ' This application for bail before arrest is moved on behalf of the applicant Asif Ali son of Haji Ahmed Ali who apprehends his arrest in case F.I.R. No,DEC 5/92 registered at Drug Enforcement Cell/HQ, N.M.B., Wharf, Karachi for offences under section 156(1)(8)(80)(89) of the Customs Act, 1969.
2. ' Briefly the prosecution case is that on 3-3-1992 spy information was received that a Suzuki bearing number plate CD 5135 was engaged in large scale distribution of gold and silver to the local market. Pursuant to this information a strong force of Customs staff took position on Shahrah- e-Faisal near hotel De-France. The said Suzuki was spotted, it was ultimately stopped and in it there were two occupants namely Muhammad Zahid and Muhammad Zubair Mundia, it also contained 7 suit-cases. The said Suzuki alongwith the two occupants and the 7 suit-cases were removed to the Customs Headquarters where in the presence of witnesses Sabir Khan and Gul Ferosh the Customs Authorities recovered 245 slabs of gold and 12 silver ingots weighing 443.92 Kg.
3. Apart from it the travelling documents and passport etc. Were also secured.
4. ' Investigation was conducted and thereafter challan was submitted before the trial Court.
5. ' I have heard Mr. Gul Zaman Khan, learned counsel for the applicant and Mrs. Ismat Mehdi, Advocate for D.A.-G. For the State with whom the Investigating Officer Javed Akhtar Mughal is also present. At the very outset I had called upon the Investigating Officer and so also Mrs. Ismat Mehdi to disclose what is the evidence available against the applicant. Very fairly Mrs. Ismat Mehdi submitted that as per the record it seems that the allegations against the applicant are based on suspicion only. It was for this reason that the same question was repeated to the I.O. Who stated that the name of the present applicant was disclosed by co-accused and apart from it the Investigating Officer did not have any other material against the applicant. The peculiar circumstance in this case is that the applicant claims that the investigation in this case is false and the gold actually recovered was made from his house by the Customs Authorities, the Customs Authorities have utilised the same gold to rope in the two co-accused.
6. ' The learned counsel for the applicant has contended that the actual position is that Mahfooz Ali and Maqsood Ali have been running a goldsmith shop at Dubai for the last more than 23 years and during this period servants who are all Pakistani used to come to Pakistan and bring 260 Tolas of gold whenever they used to come to Pakistan after complying with all the formalities. In this regard the learned counsel has referred to Bank challans in the name of Shahid Yousuf, Niman Hussain, Mahfooz Ali, Choudhry Ramzan, Mrs. Razia Begum, Maqsood Ali, Imtiaz Ali, Mansoor Ali, Baboo, Muhammad Tariq, Saeed Ahmed and Muhammad Ameen. All these Bank challans clearly indicate payment of 3% import fee on 260 Tolas gold in respect of each of these 12 persons. Again in respect of each of these 12 persons there is form 'G' issued by the Consulate General of Pakistan Dubai which actually are certificates giving the names and particulars of these 12 persons. Apart from it photostat copies of 10 purchase receipts are also placed on record to show that gold was purchased from the local market at Dubai. In other words the learned counsel has tried to show that the applicant is in the gold business and import of gold is permitted by the Government vide Notification No,SRO 1116(1)/89, dated 14th November, 1989 on the basis of which after payment of proper duty and issuance of certificates gold was imported in Pakistan. The learned counsel 'suggests that mala fide gold recovered from his house has been foisted upon the two co-accused and some portion has been usurped by the Investigating Officer. He contends that the present case is only meant to prevent the applicant from raising his voice against the illegal seizure made by the I.O.
7. ' I have carefully applied my mind to the facts and circumstances of the case and I have also gone through the entire record. It appears that there is no evidence whatsoever against the present applicant. What is most surprising is that even Investigating Officer Javed Akhtar Mughal was also aware that there is no legal evidence against the applicant and yet he raided the house of the applicant as alleged by the applicant. To my mind proceeding to arrest a person in this manner is by itself mala fide and can only be termed as harassment. Indeed I am satisfied from large number of documents placed on the record that the applicant seems to be dealing in import of gold and there was nothing to show that he has ever resorted to acquire the same in an illegal manner.
8. ' The case of the present applicant alongwith explanation and the documents placed on record reflects upon the prosecution case as a whole, not only to the extent of the present applicant but also the co-accused From my above discussion I am of the considered view that not only there is no evidence against the applicant but in fact an effort has been made to rope him also, though prima facie the applicant seems to have been importing gold into Pakistan by legal means, accordingly I am of the considered view that the applicant is entitled to the grant of bail. I, therefore, enlarge the applicant on bail on his furnishing one surety in the sum of Rs,5,00,000 and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.