1. ORDER SHAFI MOHAMMAD J.- Applicant Alamgir is facing trial in a case arising out of an F.I.R. No. 3209/95, dated 15.1.1995 registered under section 2 (S) and 16 punishable under section 156(1)(8) and (89) of the Customs Act, 1969.
2. Facts of the case, as narrated in the bail application, can be summarised as under;-
(i) On 15th January, 1995, at about 1700 hours a Coast Guards Party headed by Major Basharat Khan, during surveillance at Shara-e-Faisal Karachi, spotted a suspected taxi Yellow Cab. The taxi driver was signalled to stop but he did not stop.
(ii) The Coast Guards Party chased the taxi. When it stopped at traffic signal, three persons dismounted from the tax Each of them was carrying a carton. They started running off the road in opposite direction.
(iii) The Coast Guards party arrested accused Alamgir while the two persons made their escape good. (Surprisingly enough for this Court that the driver also managed to escape with his taxi due to rush of traffic.
(iv) The Coast Guards party in presence of two mashirs examined the carton and secured:
(a) five satellite Receivers; and
(b) two rechargeable table lamps.
2. The goods were seized, accused was arrested, notice under section 171 of the Customs Act was served upon the accused, he was brought to Coast Guards Headquarters where detailed search was conducted on dis-assembling the seized items. It resulted in the recovery of 51 slabs of gold of ten tolas each. The gold was seized under an inventory and then FIR was lodged.
3. Although facts narrated in the bail application kept the actual story clouded but contents of the F.I.R, reflected several additional glaring aspects which changed the shadowed picture presented by the defence into shining transparent story. The additional facts embodied in the FIR can be summarised as under;-
(i) In the first week of January, 1995, Director General Pakistan Coast Guards Brig. Ikram-ul-Hasan received credible information that gold and electronics items would be smuggled. Therefore, he instructed Major Basharat Khan PA 20248 (Seizing Officer) to plan an elaborate surveillance.
(ii) Applicant Alamgir was arrested as a result of that Planning.
(iii) As the civilians in the area were not willing to act as mashirs, CG 5483 Hawaldar Muhammad Akhtar and CG-5881 Hawaldar Mohammad Rashid who were on routine patrolling in that area were asked to act as mashirs to which they willingly agreed.
(iv) The accused was brought in the headquarter where detailed search resulted into recovery of nine Foreign Origin Gold Slabs of 10 tolas each from each Satellite Receiver kept at the place of transformer in the transformer bracket and three slabs of 10 tolas each from the base of each rechargeable table lamps. Thus, 51 slabs each weighing 10 tolas were recovered out of which 18 slabs were bearing foreign marking of Union Bank of Switzerland MELTER ASSAYER 999.0 and 33 slabs were bearing foreign marking of CREDIT SUISSE 999.0 CHESS AYEUR FOUNDUR. Total weight of the gold was thus found to be 510 tolas and its value was shown as Rs.23,43,000/-.
4. Comments were also called from the concerned authorities on account of the defence story made out by the learned counsel that the gold was legally imported but it may not be out of place to mention that the comments submitted by one Major Syed Basharat Ali Rizvi, were found of no help because the same seem to have been drafted as a routine. Similarly the charge-sheet submitted by Captain (Investigating Officer) Nagham Fasih also contained the following few lines which were of great importance and interest for this Court: "The scope of investigation was further enlarged with a view to determine the involvement of accused person. I interrogated the accused Alamgir son of Abdul Ghaffar. As a result of investigation the accused persons mentioned in column 2 of the challan are main smugglers of gold and column 3 is carrier of the gold."
3. These lines clearly show that the I.O. Of this case only relied upon the statement of the arrested accused by treating the same to be "The Quranic Truth" and declared the applicant as a carrier.
4. Mentioning of certain names as main smugglers in column No. 2 of final charge-sheets may or may not be treated the correct approach of I.Os but treating arrested accused persons as "carriers" without any sound evidence and that too only upon the statement of accused is not based on sound footing especially in the light of a case reported in PLD 1991 FSC 139 {Haider Hussain Vs. Government of Pakistan). It also shows that several I.Os do not keep in their mind the actual concept of different types of carriers.
5. At the same time an impression is being developed, rather being rooted, by the learned advocates that all types of carriers are entitled to grant of bail. In this connection, certain judgments are usually referred where bail was granted to persons who were treated carriers by the superior Courts after taking into consideration all the facts and circumstances of these cases. Perhaps, it was on account of observations made in those judgments by the Superior Courts, that the I.Os started using the term 'carriers' in final charge-sheets. The charge- sheet in the present case, is one of the same in its nature.
6. These were the reasons that I considered it necessary to determine the concept of 'carrier' in its real sense as considered by the superior Courts in different judgments which were referred in the present case or are usually referred by the learned advocates by now and then.
5. The learned advocate for the applicant, in support of his contention, has referred the cases of: Fateh Ali Vs. The State (1993 P.Cr.L.J. 1124)
7. Noorul and others VS. The State (1976 SCM R 190)
8. Nabi Bux VS. The State (1986 P.Cr.L.J. 202) and Ghazi Shah VS. The State (1983 SCM R 727).
9. After going through the details given in the above cases, it can be safely said that the concept of carrier appearing from all those judgments is not the same as expressed by the learned advocate and it would be clear from the following lines.
10. In the case of Fateh Ali (supra) one Inspector of Indus Rangers along with raiding party under the directions of his seniors, started 'Nakabandi' at a place within a distance of one mile of Inia- Pakistan border. They stopped one Toyota Hi Lux vehicle and secured gold weighing 10,000 tolas valued at Rs. 37 millions. Two persons namely, Fateh Ali and Abdur Rahman, inmates of the vehicle, were arrested. Fateh Ali claimed that he was owner of the recovered gold and he had purchased the same from one Choudhry Mushtaq of Lahore. It is important to point out that the seized gold was not of foreign origin and it was also not proved to have been illegally brought into Pakistan but it was observed by Mr. Mukhtar Ahmed Junejo, J. (as he then was) that;- "Fateh Ali may not be burdened with any liability for purchasing gold of that quantity from Choudhry Mushtaq but the circumstances in which he Was carrying such quantity of gold shows that he intended to smuggle it outside the country. Reasonable grounds exist to show that applicant Fateh Ali is guilty of an offence punishable under section 156(1)(8) of Customs Act with imprisonment for 14 years. His application is, therefore, refused."
11. However, the Court granted bail to accused Adbur Rahman because admittedly he was not the owner of the recovered gold. Either he might be driving the vehicle or at the most he was travelling with Fateh Ali without any claim of ownership of the gold. These were the circumstances that he was treated a carrier. This judgment has extended the scope of refusing bail to an accused on the basis of circumstance even if there is no evidence to show that seized articles were smuggled by the accused persons.
12. In the case of Noorul and others (supra) seven crew members of a launch, in which there were 120 cases of foreign whisky smuggled from Dubai, were granted bail by the Supreme Court. The owner of the said launch had absconded.
13. It was observed by the Hon'ble Supreme Court that;- "The offence committed by the petitioners (means seven crew members) was not at par with the offence committed by Noor Muhammad who has yet to be brought to trial."
14. It is important to point out that the petitioners (crew members of the launch) were not termed carriers in that judgment but their status in capacity of crew members was evident that neither, they were owners of the smuggled foreign whisky recovered from the launch nor they were owners of the launch which was found loaded with the whisky but, in all subsequent judgments, they were treated carriers by the Superior Courts whenever the said judgment was referred in any other case.
15. Perhaps this was the reason that term "carrier" became so popular for the learned defence advocates as well as for the I.Os that whenever they wished to declare someone carrier, they declared him so.
16. It is also important to point out that ownership of launch containing smuggled whisky was not disputed in that case and, according to my point of view, if the said owner had been arrested, he would not have been treated as carrier in these circumstances.
17. In the case of Ghazi Shah, etc. Vs. The State (Supra) the accused persons were arrested out side Islamabad Airport. It was urged on their behalf that one Haji Muhammad Afzal is the main accused and the petitioners were merely carriers for him, yet the main accused was granted bail by the High Court and application of the petitioners for bail was rejected. Reliance was placed on the case of Noorul Vs. The State (Supra) as discussed above and bail was granted to the petitioners.
18. This judgment clearly shows that the applicants were bailed out because main accused had already been released on bail by the High Court. Moreover the main beneficiary was fully identified as the real owner of smuggled goods.
19. In the case of Nabi Bux (Supra) the Coast Guards at Chooar Jamali recovered 3716 bottles of foreign Whisky and one National VCR from a truck. Applicant Nabi Bux who was driving the truck, divulged that the consignment was loaded in the truck by co-accused Abdul Rehman Shah who was taken into custody. Although the learned Special Judge was kind enough to enlarge owner of consignment on bail yet this concession was refused to the driver. It was thus urged before the Appellate Court that applicant Nabi Bux was mere carrier and driver of the truck while the real owner and beneficiary of offending goods had been already released on bail by the trial Court.
20. Reliance was placed on the cases of Noorul (Supra) and Ghazi Shah (Supra) reported in 1976 SCM R 190 and 1983 SCM R 727 respectively. Both the cases have already been discussed in the above paragraphs.
21. It is, therefore, evident that the Hon'ble High Court granted bail to the accused in that case because he was neither owner nor beneficiary of smuggled whisky bottles but was working only as hired driver. Moreover, the owner of the seized whisky was not only fully identified but he had been granted bail too.
22. Keeping in view the observations made in the above discussed cases, I have no hesitation to believe, at least at this stage that declared owners of the seized goods as presumed by the I.O. Of this case and who were named in the column No. 2 of the final charge-sheet on the basis of applicant Alamgir's statement seem to be living in the visionary world of dreams filmed, produced or directed by the arrested applicant in presence of the I.O. And/or seen by the I.O. In the mirror of story narrated by the said applicant. Even if it is believed that the person named in column No. 2 do exist physically in this world, the statement of arrested accused may not be sufficient to convict those persons declared as absconder unless unshakeable evidence is brought against them. If such type of dangerous declaration by such type of I.Os is allowed to continue, it may become the most dangerous weapon in the hands of corrupts to get any innocent person booked falsely or to save any smuggler by declaring him a carrier. There may be several reasons or some back-ground of such kind of investigation done by the I.Os such as lack of knowledge of law or an intentional effort to save someone from being declared as smuggler. What may be the reasons, but gravity of this conduct can be explained with the help of following question: - Would it be proper for any I.O. Of any case to put the name of Collector Customs (Preventive) or Director General Pakistan Coast Guards in column No.2 of the final charge-sheet as main accused, if an arrested accused gives a statement that he was merely a carrier and the Collector Customs (Preventive) Karachi or Director General Pakistan Coast Guards is the owner and main beneficiary of seized smuggled goods?
23. It is notable that statement of an accused before an I.O. During investigation has no legal sanctity unless proved during trial but a statement of such an accused recorded u/s 340(2), Cr.P.C, by a trial Judge has great legal importance. If the accused gives the same statement as given in the above formulated question before the Court on oath, should it be accepted a true statement by the Court for prosecuting the said officers named in that statement?
24. I think that the above two formulated questions might be sufficient to open the eyes of such I.Os to understand that statement of an arrested accused against any presumed absconding co- accused cannot be accepted true if there is no sound evidence against him/them except the statement of arrested accused. If there is no sound evidence against the so- called absconders, then declaring any person to be a carrier is not justified in any manner whatsoever.
6. Notwithstanding to the expected answer of the I.Os in respect of the question a careful analysis of all these judgments leaves no doubt that bail was granted to the accused persons in all the above referred cases where either nothing had been recovered from their possession or they had been treated carriers because they were innocently working as drivers or labourers for the smugglers who were owners or the main agents of the owners of the seized smuggled or to be smuggled goods. Such innocent victims of the circumstances were termed carriers by the Superior Courts no matter the real owners or their main agents were arrested or absconded from the spot after leaving behind evidence of their ownership. Be that or not but this fact remains undisputed that bail was granted to the carriers when the real beneficiary was some-one else. It does not matter whether he was arrested or escaped from the spot by somehow or the other from the clutches of concerned authorities but it has been mostly observed that real owners of smuggled goods or their agents escape from the spot even and/or they remain absconding somewhere from where they can/could not be apprehended by the I.Os. Be that as it may, it is an undisputed reality that only similarity of facts can germinate similar fate of cases in the field of criminology on the principle of consistency. This principle is the basic principle of the administration of justice and has to be acted upon not only at bail stage but at the time of disposing of appeals too. Therefore, the judgments delivered or orders passed or observations made by the superior Courts in criminal cases have to be taken into consideration and to be followed if the facts of those cases are similar to the cases in hand provided those judgments, orders or observations are authoritative and/or persuasive in their nature.
25. In the light of this proposition, it can be said with certainty that no superior Court has laid down any such rule till date according to which all types of carriers be dealt at par. The carriers, mostly the hired drivers, labourers, loaders etc., who usually fall as victims of circumstances cannot be equated with professional carriers or agents of main smugglers because such carriers are neither less nor more than the actual smugglers.
7. The contents of the bail application in hand as well as the oral submissions made by the learned advocate for the applicant give an impression that an effort was done to put the case of present applicant in the network of observations highlighted by the Hon'ble Judges of our Supreme Court in the case of Sikandar A. Karim Vs. The State on page 411 as reported in 1995 SCM R 387. Those observations were related to para 13 on page 93 of the judgment authored by this bench and reported in PLD 1995 Karachi 73 regarding difference of opinion between generalization and enunciation of principle of law. Although the view taken by this bench was not upheld by the Hon'ble Supreme Court, yet it can be safely said that the difference of opinion shown by the Hon'ble Judges of the Supreme Court is not helpful to the present applicant because, in the same para it was observed by the Supreme Court that " The facts and circumstances of each case are peculiar to that case and therefore, provide no guidance in the other cases."
26. If these observations of our Supreme Court, with reference to Article 189 of the Constitution of Pakistan, are read with the observations made by the Hon'ble Judges of the Privy Council by taking into consideration the binding force of Section 212 of government of India Act, 1935 with reference to the judgments of the Privy Council, then no ambiguity is left in understanding the above point. In this connection observations of Lord Hals bury in the case of Quinn Vi. Leathern, reported in 1901 Appeal Cases 495, which affirmed the decision of Irish Court of Appeal ie. Leathern Vs. Craig (1899)
27. 21 R 667 are of great importance and the same run as under:- "....There are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expressions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a preposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."
28. In the light of above discussion, it is difficult, rather impossible to believe, that present applicant was such type of innocent carrier who could be treated a victim of circumstances. The facts narrated in the bail application or in the FIR have force to believe, although for the time being, that he was an active agent of someone if not the main smuggler unless proved otherwise.
8. Second ground for bail in this application contains this claim that gold was legally imported in Pakistan and the applicant purchased the same. Hence the applicant was in lawful possession of the gold. The learned counsel for the applicant brought on record two forms 'B' in support of his contention. One form is in the name of Abdul Rahman and the other is in the name of Mrs. Kish war Rahman. Import of 260 tolas gold has been shown in each form. Thus total gold become 520 tolas if these forms are treated to be genuine documents. In-spite of all my efforts I could not find any link of the applicant with these forms or the person who are named in these forms as importers.
29. These persons can serve as defence witnesses when such stage reaches but at this stage bail cannot be granted on the basis of these forms specially when they have not sworn any affidavit showing therein that they were the authorised importers and they had sold the gold to the present applicant. Even nothing was mentioned in the bail application that gold was purchased from those persons.
30. Hence filing of such forms are of no help to the applicant unless the importers namely Abdul Rahman and his wife appear before the trial Court as witnesses for the present applicant and prove the stand taken by the learned advocate as raised by him on behalf of the applicant.
31. Even otherwise, this plea does not seem to be convincing at this stage because the named importers, according to these documents, reside at B-92, Block-D North Nazimabad, Karachi while according to the charge-sheet applicant belongs to Mardan and he was working with some Salahuddin and Allauddin shown as absconders son of not known. It is astonishing that the I.O. Of this case could not ascertain even the name of absconder's father. Although address of absconders was mentioned in the charge-sheet but nothing was shown to the Court about the steps taken by the concerned I.O. To arrest those absconders. This aspect of the case does not seem to be meaningless especially in the light of declaration that present applicant was a carrier particularly when there was no evidence on the record in proof of the said declaration. These were the reasons which left this Court with no other alternative but to deal with the concept of carrier to some extent in detail.
9. The learned advocate for the applicant also pointed out that out of two mashirnamas prepared in this case, the first was prepared on the spot within thirty minutes but the said mashirnama is totally silent regarding recovery of gold. The seized gold was shown to have been recovered in the second mashirnama which was prepared after about two and a half hours at Pakistan Coast Guards Head Quarters and F.I.R, was lodged after preparing the second mashirnama. It was thus contended that this unexplained delay of 2 " hours in lodging the FIR makes the whole case or at least the recovery of gold doubtful. This contention is not too convincing to grant bail to the applicant especially in the light of circumstances mentioned in the FIR. It would not be proper to discuss this point any more except what has been mentioned in the above paragraphs because it may damage the case of prosecution or of the applicant. Similar is the position of the plea regarding violations of section 103, Cr.P.C, because the contents of FIR explain this aspect in proper manners at least at this stage unless proved otherwise by the defence.
32. On account of the reasons listed above and keeping in view all the facts and circumstances the request of the applicant for releasing him on bail could not be acceded to and bail was refused to the applicant on 30,3.1995, by a shot order.