1. ' This bail application by applicant Muhammad Tanweer son of Ghulam Nabi arises out of F.I.R.
2. No,F-1093/1991 registered on 14-12-1991, lodged by one Mukhtaruddin, Senior Intelligence Officer, Directorate-General of Intelligence and Investigations (Customs and Excise), Karachi; under section 156(1)(8) of the Customs Act, 1969.
3. ' The first bail application filed on behalf of the applicant before the trial Court of Special Judge (Customs and Taxations), Karachi was dismissed on 7-1-1992. Against the said order, applicant filed Special Criminal Bail No,18 of 1992 before this Court, which was not pressed and dismissed on 5-7-1992. Bail application was repeated before trial Court and it was dismissed as not pressed on 13-2-1992. The third bail application moved before the trial Court was also dismissed through the order, dated 18-2-1993, against which the applicant has filed present bail application. It is in the context and background of such orders that the present bail application is being disposed of.
4. ' The facts in brief, according to the F.I.R. Are, that on the basis of a credible information, Pakistani passenger Muhammad Tanweer (applicant herein) while standing at the airline counter and being briefed for departure on P.IA. Flight No,PK-213 to Dubai, was intercepted in presence of Mashirs.
5. Applicant admitted ownership of a suit-case with Tag No,PIA-03-83-57 and disclosed that he was carrying foreign currency to Dubai. On being asked by the Customs Intelligence Officer, he took out the keys from the pocket of his shirt and opened the suit-case, which contained a black coloured bag kept inside.,It is alleged that Pakistani currency was artfully concealed and wrapped in paper and was kept under foreign currency, details whereof are given in the F.I.R. Total currency value is shown as Rs,10,500,000.
6. ' I have heard the learned counsel for the parties and perused the record. The only ground urged by the learned counsel for the applicant is that he was merely a carrier and not a beneficiary and his case needs to be dealt with on a lighter footing. The interim challan submitted before the trial Court Annexure 'C' to this application, has been referred, wherein it is mentioned that applicant in his statement during interrogation had stated that he was working as an employee and a carrier, directed to carry out the foreign currency from Lahore to Dubai via Quaid-e-Azam International Airport, Karachi, and that such statement of accused Tanweer was found correct. The contents of the challan further disclose that the applicant, while proceeding from Lahore had travelled alongwith Haji Muhammad Ramzan and Abdul Rauf and they both managed to get the accused stayed at one place at Karachi, after reaching from Lahore by Flight No,PK-347 and during that period, the brief-case was in possession of Haji Muhammad Ramzan and Abdul Rauf. The learned counsel for the applicant contended that, as the Investigation Officer himself has confirmed the above facts and found applicant as a carrier, he would be entitled to bail as he has been in custody since last 16 months.
7. ' In support of his contentions the learned counsel for the applicant has referred to the following judgments:--
(1) Noorul and others v. The State 1976 SCMR 190: In this case, the real beneficiary of smuggled goods (owner of launch) was disappearing and the accused being only paid servants of the owner were granted bail and it was observed that their case was not at par with the case of the owner;
(2) Lal Bux and 2 others v. State 1979 P Cr. L J 915: Where a learned single Judge of this Court considered the case of the carriers and it was held that their case being not at par with actual smugglers even in case of smuggling punishable under section 156(1)(8) of Customs Act, bail was allowed.
(3) Ghazi Shah and others v. State 1983 SCMR 727: Where the Honourable Supreme Court granted bail to co-accused who was merely a carrier of main accused whom bail was already granted and it was held that he was entitled to grant of bail.
(4) Nabi Bukhsh v. State 1986 P Cr. L J 202: In this judgment, a learned Single Judge of this Court granted bail to an accused who was a mere carrier and a driver of a truck carrying whisky and V.C.R. When the beneficiary of offending goods had already been released on bail by the trial Court.
(5) Jamshed Iqbal alias Billo v. State 1986 P Cr. L J 2309, wherein bail was granted to an accused who was stated to be a mere carrier in the information itself on the basis of which raid was organised and 6,000 Tolas of gold was recovered from the car of the accused.
(6) Daood Ahmed v. State 1987 MLD 931: In this case a learned Single Judge of this Court granted bail to an accused who was only an employee and working as carrier. It was held that accused was not presumed to know that sealed parcels carried by him contained smuggled goods.
(7) Rae Aleem Khan v. State 1989 MLD 861, wherein a learned Single Judge of this Court granted bail to an accused whose case was that of a carrier from whom the money was recovered which did not belong to him but was handed over to him by someone for delivery abroad.
(8) Mst. Babu Jana v. State 1990 P Cr. L J 326, wherein this Court granted bail to the accused on the ground that she was a woman and contentions on her behalf that she could be an innocent carrier of 'heroin' who had become victim of circumstances was held to be not without force.
8. ' Mr. Farrukh Zia Shaikh, the learned counsel for the State had taken time to call the I.O. In Court on 5-4-1993 and 13-4-1993. Today when this application came up for hearing, Mr. Farrukh Zia Shaikh stated at the bar that the I.O. Ishtiaq Ahmed had promised to be present in Court today but has failed, rather avoided to be present for instructions. In the circumstances the learned counsel for the State could not argue beyond what is contained in the F.I.R. And the interim challan. He has opposed the bail application on the sole ground that a huge amount of Pakistani as well as foreign currency was being attempted to be smuggled out and the applicant would not be entitled to bail, irrespective of the fact that he is in jail for the last 16 months. When asked to state if applicant was really found to be a carrier on behalf of the absconding accused Ramzan and Abdul Rauf, he frankly stated that the I.O. Has mentioned so in the interim challan. have heard the learned counsel at length, perused the record and the case-law referred. It is noted with great concern that F.I.R., which is registered on 4-12-1991 at 21-45 hours, is signed by one Mukhtaruddin, Senior Intelligence Officer on 5-12-1991 and such discrepancy could not be explained by learned counsel appearing for the State due to non-cooperation of I.O. Ishtiaq Ahmed, who, in spite of direction, failed to appear in Court. The interim challan shows that according to the Investigating Officer, statement by applicant/accused Muhammad Tanvir that he was working as employee and a carrier for absconding accused Haji Muhammad Ramzan and Abdul Rauf was found correct during investigation. Since the I.O. Himself has shown applicant to be a carrier, his case requires to be dealt with on lighter footing. The applicant had filed C.P. No,D-1779 of 1992 before this Court and the foreign currency worth Rs,45 lacs has been released to him and such order passed by a learned D.B. Of this Court is on record. In these circumstances, the case of the applicant would require further enquiry as his case would not be covered by prohibitory clause of section 497 of Cr.P.C. The case of the applicant, in my view, is of further enquiry and I am inclined to grant him bail. Applicant shall be released on bail if he furnishes one surety in the sum of Rs,10,00,000 (Rupees ten lacs only) with P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.
9. ' A copy of this order shall be sent to Deputy Director, Directorate of Intelligence and Investigation (Customs and Excise) Karachi, with a direction to hold enquiry against the I.O. Ishtiaq Ahmed, who failed to cooperate with the learned counsel appearing for the State and did not appear in Court to assist the counsel as and when required.