1. Exemption is granted subject to all just exceptions.
2. Applicants Khushrang and Kaees Khan are accused in Crime No, DEC-53/92 QIAP, registered on 6-11-1992 for offence under section 2(s) of the Customs Act, 1969, punishable under clause (8) of section 156(1) read with section 178 of the said Act. They moved bail application in the Court of Special Judge (Customs and Taxation), Karachi, which is rejected on 28-2-1993, whereafter they have approached this Court for bail.
1. ' The contents of FIR lodged by Sarwar Shah, Preventive Officer, Customs House, Karachi, disclose that a credible information was received that `Charas' was being smuggled to Rotterdam under the guise of ready-made garments by M/s. Al-Rehmat Traders, in connivance with others. On the basis of such information strict vigil was mounted at different points when ultimately it was discovered that a container No, MAEU-V-2747250 had been brought into the port area on 28-10- 1992 and placed at the container yard of M/s. Maersk Line Agency. The surveillance was maintained but no one came to manage shipment of said container.
2. ' Since the Law Enforcing Agency of Drug Enforcement Cell could not defer enforcement action, said container was raided on 5-11-1992. The container was removed in presence of witnesses Tahir Muhammad and Haji Umer to Drug Enforcement Cell (Head Quarters) N.M.B. Wharf Karachi on 6-11- 1992, when complainant alongwith other customs staff opened the locks of the container. 241 cardboard cartons were found which were subjected to examination, as a result of which `Charas' and ready-made garments were recovered. The total quantity of recovered `Charas' is shown as 3,940 k.Gs. From 101 cartons and ready-made garments were recovered from 140 cartons, Street value of which is shown as Rs,39,40,000. The above secured articles together with Shipping Bill No,65632 and some documents regarding the name of clearing agent together with container were also seized under mashirnama.
3. ' During investigation, one P.W. Jawaid Iqbal disclosed that these cartons were supplied to the applicants on 25-10-1992 who had stuffed the cartons with `Charas' and ready-made garments and were brought by co-accused Rifat and stored in a godown. The learned trial Court rejected the bail application mainly on the ground that from the statement of P.W. Jawaid Iqbal both the accused stand prima facie connected with the offence of smuggling of huge quantity of `Charas'.
4. ' It is contended by the learned Advocate appearing for the applicants that there is delay of one day in opening the container; that there is no nexus between applicants and the seized property; that P.W. Jawaid Iqbal has sworn an affidavit on 8-3-1993 in which he has completely exonerated the applicants and has stated that he was forced by the Customs Officer to give a statement, as otherwise he would be implicated in same case; and lastly that the case of the applicants would at the most fall under section 156(1)(89) and not under section 151(1)(8) of Customs Act inasmuch as neither the `Charas' nor garments secured from the container belong to applicants nor any attempt is made by them to smuggle these goods out of Pakistan. Learned Advocate in support of these contentions has referred to an order passed on 24-11-1992 in Spl. Cr. Bail Application No,67 of 1992:Aftab Alam and another v. The State 1993 PCr.LJ 828. Reliance is also placed on Allah Bakhsh v.
5. Nazar Hussain Shah and another 1979 SCM R 137.
6. ' Mr. Farukh Zia Shaikh, learned Advocate appearing for the State, has opposed the grant of bail and has argued that from the possession of applicants a mobile telephone is recovered and during interrogation applicants disclosed names of co-accused Khalid Pervaiz and Abdul Sattar Bhatti who are notorious smugglers and through mobile telephone, applicants' connections with co-accused are fully established. It is next argued that from mobile telephone secured from applicants, number of calls made by the applicants to Khalid Pervaiz and vice versa are proved. It is lastly argued that affidavit of one witness who is tampered with by the accused, cannot falsify entire prosecution case and that such affidavit cannot be considered at bail stage. In support of this contention learned Advocate has referred to 1991 PCr.LJ 732 and Mst. Bashiran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83.
7. ' I have heard the learned counsel at length, have perused the impugned order and the case-law referred. The order of the learned trial Court which is a slipshod order, refers only to the statement of P.W. Jawaid Iqbal under section 161 of Cr.P.C. On the basis of which applicants are implicated. It is further observed by the learned trial Court that from such statement of Jawaid Iqbal both applicants stand prima facie connected with the offence of smuggling. I am afraid if such an approach by the learned trial Court is correct in the eye of law. If P.W. Jawaid Iqbal is to be believed that what he stated during investigation was all correct, then too, nothing has been brought on record to indicate if it were the applicants who had delivered the cartons duly stuffed with `Charas' and ready-made garments, and either themselves put cartons in the container or delivered same to someone who conducted that exercise and placed container at the wharf. There seems no nexus between Jawaid Iqbal and applicants or co-accused in the alleged attempt to smuggle `Charas' out of Pakistan. P.W. Jawaid has sworn an affidavit on 8-3-1993 and has also addressed the learned trial Court through a letter dated 16-3-1993 in which he stated that he had no knowledge about the so-called smuggling of `Charas' by the applicants. He also mentioned in his letter that an affidavit to that effect had also been sworn by him.
8. ' In Spl. Cr. Bail Application No, 67 of 1992 (1993 PCr.LJ 828) my learned brother Qaiser Ahmad Hamidi, J. Who disposed of the said application, referred to the following paragraph of an order passed by another learned brother of mine, Imam Ali G. Kazi, J. In Criminal Bail Application No, 57 of 1990 (Shaukat v. The State):--- "From the plain reading of the above section it is clear that a person can be punished under that section for being vicariously liable if it is established that he had the knowledge that his companion had the goods liable to confiscation under the Act. It, therefore, follows that the prosecution have to adduce clear evidence to the effect that companion accompanying a person in possession of contraband goods was aware of that fact."
9. ' It has not been shown by the learned Advocate appearing for the State that applicants were either the smugglers or had acted in any manner having knowledge that they would be liable for the offence of smuggling even if it be believed that the contraband articles seized were intended to be smuggled out. In the case reported 1979 SCM R 137, the Honourable Supreme Court declined to interfere with the findings of the High Court which granted bail on the basis of affidavits filed by alleged eye-witnesses exculpating accused from commission of crime. In the case reported 1991 PCr.LJ 732 a learned Judge of this Court refused bail in a case in which eye-witnesses had sworn affidavits exculpating the accused but the complainant in that case had not sworn any such affidavit. In the case reported in PLD 1990 SC 83 it was observed that mere filing of affidavits by certain Advocates would not attract the expression `further inquiry', nor would it amount to two versions and the evidentiary value of such evidence should be left to be determined by the trial Court.
10. ' The above discussion leads to an irresistible conclusion that prosecution had no other evidence against applicants except 161 Cr.P,C. Statement of P.W. Jawaid Iqbal who disowns such statement, and the recovery of a mobile telephone suggesting some link of applicants with smugglers. Prima facie, case of applicants would fall under section 156(1)(89) of the Customs Act unless otherwise proved at the trial that it would fall under section 156(1)(8) of the said Act. Case of applicants therefore calls for further enquiry and I am inclined to grant them bail. They shall be so released if they furnish one surety each in the sum of Rs,5,00,000 (Rupees Five Lacs) with P.R. Bond in the like amount to the satisfaction of the trial Court.