1. ' Applicant Jawaid son of Chand is charged for offence under section 156(1)(8) of Customs Act, 1969, for having smuggled into Pakistan, gold weighing 1,500 Tolas on 16-8-1992. He arrived at Terminal No,1, Quaid-eAzam International Airport, Karachi, on the said date from Dubai by Lufthansa Flight LH-634, 150 slabs of gold each weighing 10 Tolas, wrapped with packing material round his thighs were seized by Ansar Atta Ansar, Preventive Officer. Bail application moved on behalf of the applicant in the Court of Special Judge (Customs and Taxation), Karachi is rejected by order, dated 6-10-1992.
2. ' It is contended by Mr. Muhammad Akmal Wasim, learned Advocate for the applicant, that under Notification No, SRO 116(1)/89, dated 14th November, 1989, import of gold into Pakistan upto a maximum of 260 Tolas of gold is exempted from Customs Duty, Sales Tax and other charges and if such a quantity is imported in Pakistan, it shall not be deemed to be an act of smuggling. It is next contended that applicant was merely a carrier and not the beneficiary, as is evident from the contents of challan, and the prohibition contained in section 497 of Cr.P.C. Would not be attracted in applicant's case and he would be entitled to grant of bail. It is lastly contended that the case of applicant would fall under clause (1)(9) of section 156 of Customs Act and not under clause (1)(8) of the Act. In support of his above contentions, reliance is placed on 1983 SCM R 727.
3. ' Mr. Farrukh Zia Shaikh, learned Advocate for the State has vehemently opposed bail application.
4. He has contended that applicant's case falls within clause (1)(8) of section 156 of Customs Act, the penalty for which is confiscation of goods, penalty not exceeding ten times the value of goods and upon conviction by a Special Judge, imprisonment not exceeding fourteen years. It is next argued that admittedly the quantity of gold recovered from applicant is more than the quantity exempted under Notification No, SRO 1116(1)/89, dated 14th November, 1989.
5. ' I have heard the learned counsel and perused the record. Import of only such quantity of gold in Pakistan is exempted from Customs duty and other charges, as is imported in accordance with the conditions specified in the said Notification. Further, exemption is allowed by Federal Government in respect of gold falling under heading No, 71.08 of First Schedule to the Customs Act, 1969, from so much of Customs duty as is in excess of 3% ad valorem and whole of Sales Tax, import surcharge and iqra surcharge, provided it is imported in accordance with the conditions laid down in SRO 1116(1)/89. Case of applicant does not fall within the ambit of the said notification but his act is clearly covered by the definition of smuggling as defined in section 2(s) of Customs Act, 1969, punishable under clause (1)(8) of section 156 of the Act, which attracts prohibitory clause of section 497 of Cr.P.C.
6. ' Whether the applicant was a carrier and not the actual beneficiary, is a matter, which would be determined by the trial Court and if it is found that applicant was a carrier, he may get such benefit at the conclusion of trial but not at the stage of bail. The case-law 1983 SCM R 727 referred by the applicant's learned Advocate is not attracted to the facts of this case.
7. ' In the said case the main accused were granted bail and co-accused, who were merely carriers of the main accused, were held to be entitled to grant of bail. Such is not the case here. In the case in hand the main accused is yet not arrested and the applicant has still to prove at the trial that he was acting as a carrier and not the beneficiary himself.
8. ' The bail application is accordingly dismissed.