' The case of prosecution, in brief, is that Ashraf Mahmood Seizing Officer on 11-5-1993 at 9-45 p.m.
At International Departure Hall, Jinnah Terminal, Quaid-e-Azam International Airport, Karachi, intercepted applicant Rodney William Walsh, holding Newzealand passport and seized antiques from his baggage, in presence of Mushirs Shafiq Haroon and Muhammad Saleem, which were one picture carved slab, two heads of statutes, three bowls all worth Rs,2,50,00,000. The applicant was bound for Bangkok via Singapore by Flight No,SQ-714. Before the seizure, the applicant was asked to declare the contents of his baggage and he replied that he had nothing except wearing apparels, and household articles. The Seizing Officer was not satisfied with above reply and conducted the search, which resulted in the recovery of the articles mentioned earlier. A notice under section 171 of the Customs Act, 1969, was served upon the applicant. The Investigating Officer referred the matter to Archaeology Department for their opinion, and the Superintendent National Museum of Pakistan vide letter dated 17-5-1993, after the examination of the seized articles, informed the Customs Authorities about those articles and the relevant portion of said letter is as follows:-- "(1) One Gilded T/C head to Buddha in half sleeping and smiling impressions clearly represents the Graco Roman features. The high hair style parted from the centre and nicely arranged hair are gilded. It is a unique figure 17 c.m. High. It appears that the sculpture is removed from some museum may be Swat area.
(2) Roughly square shaped sachist stone panel in two tires. The upper one broken and missing while in the lower tire Buddha is shown standing with his devotees. Decorated panels with Acunthus and Sala leaves. Two holes for fixing the object in the wall. Appears to be a museum piece, possibly from Swat area. Size: hight 38.5 c.m. Wd: 34.5 c.m.
(3) Smiling Buddha head with open eyes, bearing moustaches and ushnisha, long ear lobes and broken halo on left side, nose slightly damaged. Schist: height 8 inches.
(4) Apparently post Harrapan pottery probably from Loebnar valley Swat area. It includes two small cup shaped pots wide mouth and narrow base, black dull colour.
1. Dia mouth 12 c.m. Dia base 6.5 cms.
2. Dia mouth 8.25 c.Ms. Dia base 5.5 cms.
3. Small jar complete red in colour T/C Dia mouth 9.5 c.Ms. Dia base 5.5 c.Ms. Height 14 cms.
' The value of rare and unique Gandhara sculptures apparently museum pieces cannot be weighed in terms of coins. The antiquities are valueless. Currency cannot be a parallel of cultural heritage. However, the value of such objects may be estimated from half million to one million dollars in European market. The value may be more or less accordingly to the circumstances.
' Since the objects are museum property- therefore, it is requested that the objects may be handed over to the National Museum of Pakistan, Karachi for preservation, conservation and study. It is also requested that one photograph of the culprit along with his bio-data may also be provided to the museum for record and maintenance of file of culprits."
' The applicant moved bail application and the same was dismissed by learned Special Judge (Customs and Taxation) vide order dated 26-5-1993 with an observation that, prima facie, the seized articles were antiques and were attempted to be smuggled out of Pakistan and that since the case falls within the meaning of subsection (2) of clause (s) of section 2 read with clause (8) section 156(1) of the Customs Act, which is punishable up to 14 years, the applicant was not entitled to bail.
' Learned counsel for the applicant has relied upon sections 3 and 4 of the Antiques Act, 1975, which are as follows:-- "3.--(1) For the purposes of this Act, the Federal Government shall constitute an Advisory Committee consisting of the following members, namely:--
(a) the Director, who shall also be its Chairman,
(b) one representative each of the Education Division and the Tourism Division,
(c) three other persons having special knowledge of antiquities, to be nominated by the Federal Government.
(2) No act or proceeding of the Advisory Committee shall be deemed to be invalid by reason only of the existence of a vacancy in, or defect in the constitution of the Committee.
(4) If any question arises whether any product, object or site is an antiquity within the meaning of this Act it shall be referred to the Federal Government which shall, after consultation with the Advisory Committee, decide the same; and the decision of the Federal Government shall be final."
' During the course of argument, learned counsel for the applicant frankly conceded that aforesaid articles were seized from the applicant. He, however, disputed this part of the prosecution version that applicant, when was asked to give declaration had informed the Seizing Officer that he had only wearing apparels, and household articles in his baggage. He submitted that it was specifically pointed out by the applicant that he had in his possession the articles mentioned earlier. After the clear admission of recovery, the scope of controversy is narrowed down considerably and now the only point for determination is whether these articles are antiques or not. Learned counsel for the applicant contended that they are not antiques, albeit they very much resemble like antiques. In fact, it has been argued that these are fake antiques. Elaborating it, he submitted that these articles being easily available in the market could be taken away by the applicant. His main thrust of argument, however, is that in view of the provisions of sections 3 and 4 of the Antiquities Act, 1975 and there being clear violation of these provisions on the part of the prosecuting agency, the seized articles, on the basis of present available material, cannot be taken as antiques. According to him, it is only the Advisory Committee constituted under section 3 of the Act, 1975 which is competent to decide as to whether any product is an antiquity or not. He laid stress on the :point that aforesaid articles were never placed before the Advisory Committee for the settlement of the dispute within the meaning of section 4 of the Act, 1975. He also argued that in the charge-sheet expert witness has not been cited, as such the only statement of the Seizing Officer would not be enough to declare these articles as antiques.
' As regards the plea of not referring these articles before the Federal Government/Advisory Committee, it is noted that first time the applicant has challenged before the Court. That these articles are not genuine, when the matter was referred by the Investigating Officer to the National Museum authorities the latter had no other version than the report of the Investigating Officer. After examining the articles and being satisfied that they were ancient product of human activity, the National Museum authorities submitted their report which has been quoted above. The applicant or anybody else had never challenged before the Federal Government/Advisory Committee that these articles were not antiques as defined in the Antiquities Act, 1975. It being so, it cannot be said that the provisions of sections 3 and 4 of the said Act were violated. Prima facie, plain reading of the report shows that these articles are invaluable antiques. Since the applicant now has taken a plea that these are fake articles, and are easily available in the market, it is for him to establish that actually it is so. It is true that for the purpose of bail application the prosecution evidence is not to be assumed as sacrosanct, but at the same time an elaborate sifting of evidence is neither permissible and nor possible. By applying the principle of tentative assessment of evidentiary value of the material placed before it, the Court can, for a limited purpose, take into consideration the surrounding circumstances of a particular case. Prima facie, the seized articles are antiques.
' So far as the contention that expert witness has not been cited in the charge-sheet is concerned, it is noted that it was an omission on the part of the prosecution and in the supplementary charge- sheet the name of the expert witness was included. So this contention is also without any force. .
In view of the above circumstances, no case for bail is made out. The application is, therefore, dismissed.