1. ' Applicants Fatch Ali and Abdul Rehman have moved for bail. They arc facing trial in Court of the Special Judge, Customs and Taxation, Karachi in a case which is outcome of F.I.R. No,15/92 of Police Station Khipro, District Sanghar.
2. ' According to the F.I.R. On 18-3-1992 Captain' Muhammad Arif of Indus Rangers received spy information that a notorious smuggler name Fateh Ali was about to smuggle a huge quantity of gold from Pakistan to India. Captain Muhammad Arif directed Inspector Muhammad Ilyas of Indus Rangers to constitute a party and do Nakabandi. Consequently Inspector Muhammad Ilyas with his staff started Nakabandi at 2-30 a.m. (night) at a place in between Piller No,781 and 781/1, within a distance of one mile of the Indo-Pakistan Border. The raiding party waited at said place till 4-00 a.m. When they saw a Toyota Hi Lux Vehicle bearing No,1122 heading towards India. The party of Indus Rangers got stopped Hi Lux Vehicle No,1122, which had the present applicants as its inmates.
3. During search of said vehicle, the raiding party secured from it 20 sealed packets each containing 50 slabs of gold each slab weighing ten bolas. The secured gold weighing 10,000 Tolas and valued at. Rs,3,70,00,000 was seized and the applicants were arrested, under a Mashirnama. Such incident report was submitted by Inspector Muhammad Ilyas to the S.H.O. Khipro, who registered the case against the applicants for the offences punishable under sections 156(1)(8), 157 and 178 of Customs Act. After registration of the case, police investigated the case and challaned the applicants.
4. ' The trial Court when moved for bail, dismissed the bail application of the applicants after discarding the pleas raised before it, that the officers and staff of the Indus Rangers were not conferred powers exercisable by an officer of Customs under the Customs Act, that applicant Fatch Ali was lawful owner of the gold in question he having purchased the same from Ch. Mushtaque of Lahore, through Haji Muhammad Usman plea raised before the trial Court was, that the gold in question was not proved to be of foreign origin and was not proved to have been illegally brought into Pakistan.
5. ' Mr. Abul Khair Ansari, learned counsel for the applicants argued that the place of recovery was 90 miles from the border and 33 miles from town of Khipro and as such the gold in question cannot be said to have been intended to be smuggled to India. In this respect reliance was placed on the case of Ghulam Murtaza and another v. The State 1987 MLD 1948 where the persons accused of smuggling of Charas to India were caught before they reached Sialkot where Indian border was beyond Sialkot and the view taken was that it could not be said that the accused were going to smuggle Charas to India. In reply Mr. Farrukh Zia Shaikh argued that it was in the F.I.R. That the place of recovery was about one mile within the limits of Pakistan. In reply, learned counsel for the applicants referred to the statement of Major Shahid Haroon who had investigated, the case and had come to the conclusion that the gold in question was recovered from Mumtaz Chowk which was 90 miles away from the Indo-Pakistan border. The Investigating Officer namely Major Shahid Haroon was also satisfied that the gold in question was sold by Ch. Muhammad Mushtaq and Haji Muhammad Usman to applicant Fateh Ali under proper receipts. Since the gold in question was recovered at a place of 90 miles away from the border it was wrongly shown in the F.I.R. To have been secured from a place one mile away from the border. For such inconsistency the benefit would go to the applicants.
6. ' Learned counsel for the applicants further argued that jurisdiction of the Rangers was only up to five miles from the border and hence they had no jurisdiction to make recovery from a place which was 90 miles away from the border. It was also argued that the gold in question was cleared by Customs and it was sold by various importers to Ch. Muhammad Mushtaq, who sold the same to Fateh Ali. Learned counsel for the applicants cited the cases of:
(i) Collector of Customs (Preventive) and others v. Muhammad Mahfooz PLD 1991 SC 630;
(ii) Ahmed Ali Khan v. State 1988 P Cr. L J 370;
(iii) Nabo Jan v. State 1981 P Cr. L J 951;
(iv) Theresia Avilagateen v. State 1986 P Cr. L J 2315;
(v) Sohno v. State and another 1990 P Cr. L J 1190.
(vi) Haji Wali Muhammad v. State 1969 SCMR 233.
7. ' Mr. Farrakh Zia Shaikh opposed the application and argued that previous application moved for bail was rejected by the trial Court and at that stage no plea was taken to the effect that the gold in question was owned by Fateh Ali, and that he had purchased the same from Ch. Muhammad Mushtaq through Haji Muhammad Usman. Learned State counsel, further argued that an offence under section 156(1)(8) of the Customs Act was punishable with imprisonment for 14 years and it was covered by the prohibition contained by section 497 of Cr.P.C.
8. ' The authorities cited at the Bar by the learned defence counsel required to he discussed. In the case of Haji Wali Muhammad 1969 SCMR 233, the allegation against Haji Wali Muhammad was that he alongwith some others was concerned with the smuggling into Pakistan of a large quantity of gold valued at Rupees one crore and such an offence was punishable with imprisonment for six years. The Supreme Court of Pakistan granted bail to Haji Wali Muhammad after observing that the evidence against him was still to be evaluated and as a general rule on a charge of smuggling into Pakistan of a large quantity of gold valued at about one crore of rupees, not involving a sentence of death or transportation for life, bail should ordinarily be allowed disregarding the grounds of the seriousness of anti-social nature of the offence, unless there be strong grounds in the shape of evidence for the belief that he is guilty. In the case of Ahmed All Khan 1988 P Cr. L J 370, the allegation against the accused was of attempting to smuggle Rs,10 lacs in Pakistani currency and from the allegations in the FIR., and interim challan, the case appeared to be of further enquiry and the prosecution case appeared to be that the accused acted as a mere carrier and bail was granted. In the case of Nabo Jan 1981 P Cr. L J 951 the accused leaving Pakistan on 25-1-1981 for Riyadh, Saudi Arabia was intercepted at Karachi Airport at 6-00 p.m. And his baggage and personal search was taken and 825 Saudi Rials and 1,84,000 Pakistani rupees were recovered from his possession but he was graned bail on the ground that effect of the circumstances in which the accused was refused boarding required further enquiry. In the case of Theresia Avilagateen 1986 P Cr. L J 2315, a lady accused with five other accused was apprehended from a car at Karachi Airport on 9-4-1985 and four kilograms of heroin powder was recovered from them. The lady accused, who was sitting at back seat of the car, was granted bail on the ground of sex and on the ground that she was foreign national and her ticket showed that she was to travel from Karachi to Lahore and she was not flying out of Pakistan and her seat was confirmed for Lahore only and not for Amsterdam. In the case of Collector of Customs (Preventive) PLD 1991 SC 360 it was observed as below:-- "Now so far powers under section 163 of the Customs Act, 1969 are concerned, they are to be read alongwith section 162 of the Customs Act. Requirement of section 162 of the Customs Act is that on application by a Gazetted Officer of Customs, in which grounds are stated, search-warrant is to be obtained from the Magistrate having local jurisdiction and such warrant shall be executed in the same way and will have the same effect as is provided under the Code of Criminal Procedure, 1898.
9. This requirement of issue of search-warrant by the Magistrate can be dispensed with under section 163 of the Customs Act, which empowers Assistant Collector of Customs or any other officer of like rank to make search without warrant if he is satisfied that there is danger of removal of goods if search-warrant is obtained and further he has to record such reasons."
10. ' Case of Sohno 1990 P Cr. L J 1190 speaks about joining of a person connected with a case, to be accused in that case. Neither in this case nor in PLD 1991 SC 630 any principle was laid down for grant of bail.
11. A huge quantity of gold weighing 10,000 Tolas and valued at rupees thirty seven million has been recovered from the Vehicle No,1122 by which the applicants were travelling. Out of the applicants, Fateh All claimed being owner of the recovered gold having purchased the same from Choudhry Mushtaq through Haji Muhammad Usman Dumba. Purchase of such a huge quantity of gold, cannot be for a reason other than its sale in a country where it can fetch more money. Fateh Ali may not be burdened with any liability for purchasing gold of that quantity from Choudhry Mushtaq. But the circumstances in which he was carrying such quantity of gold show that he intended to smuggle it outside the country. Reasonable grounds exist to show that applicant Fateh Ali is guilty of an offence punishable under section 156(1)(8) of Customs Act with imprisonment for 14 years. His application for bail is, therefore, refused.
12. ' The case of applicant Abdul Rehman is distinguishable. Admittedly he was not owner of the recovered gold. He was at the most carrier of the gold and as such liable for the offence punishable under section 156(1)(89) of the Customs Act with imprisonment for six years. His case is not covered by the prohibition contained by section 497 of Cr.P.C. Abdul Rehman is therefore, granted bail and he be released on bail if he furnishes two sureties each in the sum of Rs,5 lacs and executes P.R. Bond in sum of rupees ten lacs to the satisfaction of the Special Judge Customs and Taxation, Karachi. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.