1. ' Applicants Abdul Ghafoor, Abdul Majeed and Haji Hassan are accused in F.I.R. No,DEC/45/92-QA.P.
2. Registered on 20-8-1992 under section 2(s) of the Customs Act, punishable under clause (8) of section 156(1) read with section 178 of the said Act. An application for bail moved on their behalf was rejected by the learned Special Judge (Customs & Taxation) Karachi on 15-11-1992. The Spl.
3. Criminal Bail No,69 of 1992 was filed before this Court, which was heard and dismissed by my learned brother Qaiser Ahmed Hamidi, J. On 20-12-1992. Applicants then moved Crl. Petition No,1-K of 1993 before the Supreme Court of Pakistan, which was dismissed as withdrawn on 28-2-1993.
4. Thereafter applicants repeated bail application with certain new grounds before the trial Court which was also rejected on 10-3-1993 against which order they have approached this Court second time for bail.
5. ' This bail application was heard on 28-3-1993 when the orders were reserved. In the meanwhile, Miscellaneous Application No,530 of 1993 is moved on behalf of the applicants with a prayer to amend the application and permit to add the following para in the grounds:--- "(9-A) That after the disposal of the first bail application by this Hon'ble Court the two P.Ws. Namely Muhammad Iqbal and Muhammad alias Badshah have filed their affidavits whereby they have disowned their statements alleged to have been given by them before the prosecution during the investigation. This ground was also taken by the Applicants/accused in their Second Bail Application before the trial Court but the learned trial court failed to appreciate the same and did not consider it a ground for bail."
6. ' The facts of the case have already been discussed in details in the order, dated 20-12-1992 and need not be repeated. But for the sake of brevity it may be mentioned that allegation against the applicants and an absconding accused are that a huge quantity of gold weighing 6,000 tolas of foreign origin valued at Rs,2,10,00,000 was brought from Bhit Island to Kemari, Karachi concealed in the jackets worn by the applicants was recovered from the accused and was meant to be taken to City for its disposal.
7. ' In their earlier Application No,69 of 1992 before this Court contentions raised on behalf of the applicants were that the gold seized belonged to the applicant Abdul Ghafoor, who had purchased the same from one Muhammad Mansha of Lahore through Haji Jan Muhammad and that the said gold was lawfully imported and could not be considered as meant for the purpose of smuggling.
8. During the hearing before my learned brother, a copy of admission order passed in C.P. No,D-2924 of 1992 was produced, which petition was filed by applicant Abdul Ghafoor, who had challenged the seizure of gold on the ground that it was legally imported and no show-cause notice as contemplated under section 180 of the Customs Act was served before the confiscation. Petition was admitted on the basis of such contentions, but has not been finally disposed off. Yet another contention was raised during the course of arguments before this Court in the earlier bail application to the effect that on the basis of documents produced by Abdul Ghafoor showing lawful import and the purchase of such gold by him, the case would require further enquiry as contemplated under subsection 2 of section 497, Cr.P.C. And applicants would be entitled to bail. In support of his such contention the learned Advocate had placed reliance on an unreported order of the Supreme Court of Pakistan in Criminal Petition No,80-K of 1992 (Muhammad Zahid v. The State), in which case, the Supreme Court granted bail on the ground that the defence had produced documents of ownership of gold having lawfully been imported in Pakistan and that the duty of trial Court is to analyse the whole evidence and consider defence plea in juxtaposition with prosecution case and further that till then it becomes a question of further enquiry. This unreported order was considered by my learned brother while disposing of the first bail application.
9. ' Fresh grounds, which are taken by the applicants learned counsel in their bail application before the trial Court as well as before this Court are firstly that two P.Ws. Muhammad Iqbal and Muhammad alias Badshah, who are both Nakwa/drivers of Launch Tara' used for bringing gold from Bhit Island to Kemari have filed affidavits and have disowned their statements under section 161, Cr.P.C. Recorded during investigation. Further contention of the learned Advocate is that there is delay in commencement of trial and lastly that the gold in question was recovered and seized at Jackson Bazar, Kemari area and no inference can be drawn that same was either smuggled in Pakistan or intended to be sold in the City.
10. ' As to the ground of delay in commencement of trial, the trial Court had observed that co-accused Muhammad Qasim, Ismail and Haji Younus, who are also involved in this case are still not traceable and delay in such circumstances cannot be said to be inordinate so as to entitle the applicants to bail. As to the affidavits of two witnesses, who have disowned their 161, Cr.P.C. Statements, the learned trial Court had observed that besides that there is other evidence, which is sufficient to hold that the applicants and absconding accused are guilty of offence with which they are charged. Last contention of the learned Advocate is that the offence would not fall under section 156(1)(8) of the Customs Act, but it may at the most fall under section 156(1)(89) of the Act as applicants were spotted first time in the Parking Lot of Kemari area and the maximum punishment in the case would be six years, which would not attract prohibitory clause of section 497. In support of the last contention reliance is placed on Mir Muhammad and 3 others v. The State 1976 SCM R 145.
11. ' Mr. Farrukh Zia Shaikh, learned Advocate for the State, has opposed the grant of bail on the ground that applicants are charged for offence, which is punishable with imprisonment for life and since earlier bail application on their behalf was rejected by this Court, there was no fresh ground on which bail could be granted to applicants. He has also contended that the offence would fall under clause (8) of section 156(1) read with section 178 of the Customs Act and not under the provisions to which reference is made by applicants' learned Advocate. After the application MA. No,530 of 1993 was allowed by consent, the learned Advocate appearing for the State was asked, whether the two witnesses had disowned their 161, Cr.P.C. Statements through affidavits, he conceded that such affidavits have been sworn and it amounts to tempering with the evidence. Furthermore that it would not be an additional ground for bail.
12. ' I have heard the arguments of the learned counsel at length and perused the entire record. The contention raised on behalf of the applicants, that the gold in question was lawfully imported, was considered at length by my learned brother Qaiser Ahmed Hamidi, J. Before whom reliance was placed on the case of Muhammad Zahid v. The State (Crl. Petition No,80-K of 1992) and my learned brother has observed as under:- "The precedents on legal propositions alone are binding. The peculiar features of each criminal case not being identical, the observations made in a criminal case are confined to that case alone."
13. ' There is no cavil with such proposition, but with utmost respect, if a case of accused is identical to the facts and grounds in a given precedents, the same is binding on this Court. There is documentary evidence on record that gold was lawfully imported and purchased by applicant Abdul Ghafoor and such plea raised on behalf of the accused is to be put in juxtaposition with the prosecution case. However, if such a course is followed, the case of the applicants would be of further enquiry as it would be for the trial Court to conclude whether the defence plea raised on the basis of documentary evidence is genuine or otherwise. The two witnesses Muhammad Iqbal and Muhammad alias Badshah being the Nakwa of the Launch 'Dam', who had brought applicants and some other accused in the Launch from Bhit Island to Kemari, have sworn affidavits disowning their 161, Cr.P.C. Statements. I would avoid adverting to the legal contentions raised by the applicants' learned Advocate that the offence against the applicants would not fall under those provisions of the Customs Act, under which challan has been submitted as such a finding may cause prejudice to the prosecution case. Since the claim of the applicants that they or anyone of them is lawful owner of the gold and the determination of the genuineness of the documentary evidence would be only at the trial, and while following the observations of the Hon'ble Supreme Court in the case of Muhammad Zahid earlier referred, and also that two witnesses have disowned their 161, Cr.P.C. statements, I hold that the case of the applicants becomes of further enquiry and they would be entitled to bail. The applicants shall be released on bail if they furnish one surety each 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 trial Court.