' This is an application for bail made on behalf of applicant Mahmood Ahmad Khan, an Officer Engineering, Pakistan International Airlines, Karachi, who is detained in Crime No, P-34-35/92-II, Pakistan Customs, under section 156(1)(8) read with section 178 of the Customs Act, 1969. The bail application made on his behalf was dismissed earlier by learned Special Judge (Customs and Taxation), Karachi vide order, dated 10-11-1992.
2. The facts of the case unfolded in F.I.R. Lodged by Ahmad Ali Abbasi, Inspector Preventive Service, ran as under:- "A credible information was received that gold in huge quantity would be smuggled into the country through concealments in the lavatories of P.I.A. Flight PK-214 which would arrive from Dubai on 9-4-1992. In pursuance of the aforesaid information the undersigned discussed the information threadbare with Collector of Customs, D.C.P. (Hqr.) and A.C.P. (Hqr.). Accordingly a team comprising Messrs L.U. Jan, Jameel Ahmad Khan, Mashooq A. Memon, Nousherwan Afzal and others was organized which boarded the said Aircraft immediately after it landed at Bay No,26, Karachi Airport. The passengers of the flight were allowed to disembark. Afterwards the raiding party accompanied by Mashirs namely Messrs Nasrullah Jan and Syed Abid Hussain of P.IA.
Security entered into the aft lavatories of P.IA. Aircraft Registration No,BCJ. The customs staff under my supervision carried out comprehensive search as a result of which 436 slabs of gold each of 10 Tolas bearing foreign marks and Nos. Were found contained in 8 cotton bags of black colour which were placed inside the oxygen panel of lavatory's ceiling. Besides the gold slabs, 3 empty cotton jackets with specially made pockets for gold slabs were also found. The cotton jackets of this type are used for safe transportation of gold by way of wearing on person so as to escape detection by the Law Enforcement Agencies. The process of recovery was made by unscrewing the panels of ceiling of aft lavatory of the Aircraft. The gold slabs so recovered alongwith cotton bags and 3 empty jackets were seized under a Mashirnama prepared on board the P.I.A. Aircraft. In the meantime the informer again contacted the undersigned and informed that the quantity of gold seized from the Aircraft was less and further apprised the undersigned to make thorough and intensive search exercise in order to make full recovery of the remaining gold still believed to be lying secreted in the cavities of aft lavatory. The customs party again boarded the said Aircraft still parked at Bay No,26. But in the meantime the said Aircraft was converted in Flight PK-215 which was to leave for Kuwait. The search was again conducted in presence of Mashirs namely Messrs Asif Raza Khan and Sohail Asghar of the aft lavatories, which resulted in the recovery of 216 slabs of gold from two different cupboards of two aft lavatories meant for toiletries. The gold slabs were secreted inside the panels of ceiling. The process of recovery in this exercise was also made by unscrewing the panels. The gold slabs were wrapped in adhesive tapes. The gold so recovered alongwith the packing material was seized under a separate Mashirnama prepared on board the P.IA. Aircraft Registration No,BCJ. The aggregate recovery of gold made from the lavatories was 6,520 Tolas.
' Efforts are being made to identify and book all those responsible of an abortive attempt to smuggle gold into the country.
' As per information one Mehmood, a P.IA. Employee, who had access to the Aircraft was to remove gold from the aft lavatories."
3. The applicant who was nominated in F.I.R., however, absconded and he remained on leave on medical grounds to avoid his arrest. He was, however, not found at his residence also. On 14-7-1992 the applicant surrendered before the Special Judge (Customs and Taxation), Karachi, and was able to secure interim pre-arrest bail. This order was, however, recalled on 26-10-1992, and thereafter the applicant was arrested. The applicant applied for bail after arrest before Special Judge (Customs and Taxation), Karachi, but without success. It is, in these circumstances that he has approached this Court with the same prayer.
4. I have heard Mr. S. Sami Ahmad, learned counsel for applicant and Mr. Ali Nawaz Dahraj, learned counsel for State. The latter has opposed the bail application.
5. There are certain facts and circumstances which are borne out from the record. These are:--
(i) The name of the applicant finds place in the F.I.R., which was lodged soon after the incident.
(ii) The applicant had an access to the places from where the smuggled gold in huge quantity was recovered.
(iii) The applicant who was on duty was not found after 9 p.m., obviously after he came to know that the smuggled gold was recovered.
(iv) The applicant did not report for duty till 14-7-1992 when he was successful in obtaining interim anticipatory bail.
(v) There is evidence of Morris Masih recorded during the course of investigation showing that the applicant was involved in such an incident prior to this also.
(vi) The value of the gold recovered from the Aircraft is Rs,2,50,00,000 (Rs, two crores and fifty lacs).
6. There is circumstantial evidence alone against the applicant. The Qanun-e-Shahadat, 1984, does not insist upon a greater degree of certainty when the evidence is entirely circumstantial. In this connection reference may be had to the case of Shah Nawaz v. The State reported in 1968 P Cr.
L J 1226, wherein following observations were made by Abdul Ghani Khan Khattak, J. (as he then was):-- "It is clearly established law that crimes which are committed at chosen time in secrecy cannot be proved by direct and positive evidence and the Court must act upon indication as the facts and circumstances of the case present. The cumulative force of the facts though individually of no little significance, is that they cannot be reasonably explained, in a manner other than the guilt of the appellant."
7. Mr. S. Sami Ahmad, learned counsel for the applicant has contended with full force that the applicant not being an absconder was entitled to the grant of bail and the rule laid down by the Supreme Court in Muhammad Sadiq v. Sadiq and others reported in PLD 1985 SC 190, Ibrahim v.
Hayat Gul and others reported in 1985 SCMR 382 and Awal Gul v. Zawar Khan and others reported in PLD 1985 SC 402, was not attracted to his case. He has further endeavoured to show that notwithstanding the abscondcnce the accused might be released on bail when accused is a woman, a child or a sick and infirm person or when the accused otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C. There is no cavil with this legal proposition, but the fact remains that the applicant had deserted the duty and he was absent with the active connivance of the officers of Pakistan International Airlines and the officers of Pakistan Customs. In my view endless difficulties inevitably arise when such attempts to protect an officer are made. The smugglers employ the acme of human ingenuity in a manner which is beyond the capacity of the anti-smuggling squads to grapple with, much less to stop, specially when the principal accused is provided every opportunity to create evidence in his favour. This situation obviously calls for the adoption of extraordinary measures. All these are facts to be faced squarely and realistically, rather than approached with ostrich-like attitude of deceptive egoism which will be eventually self-defeating.
8. The case against the applicant falls within the prohibitory clause of section 497, Cr.P.C. And the applicant is, therefore, not entitled to the grant of bail. The bail application is accordingly dismissed. It is needless to add that the observations made above are tentative in nature and they should not influence the mind of the trial Judge in any manner.