' Facts of the matter are that one Ahmed Khan Baloch, Senior Preventive Officer, Custom House, Karachi, lodged report on 17-1-1996, which is as under:-- "On -17-1-1996 while I was performing my evening duty at J.P.C. Q.I.A.P., an information was received. By I.P.S. Mr. Jalil Brohi to the effect that a passenger namely Azam Khan would be arriving from Dubai by P.I.A. Flight PK-214 and would be carrying gold concealed in his baggage. Pursuant to the above information, a team was constituted which maintained incognito surveillance and spotted the passenger. As soon as the passenger collected his baggage from the conveyor belt which comprised of two checked pieces of baggage, he started moving out of the hall through the green channel. He was intercepted at the exit gate and asked to declare whether he was carrying any contraband gold in his baggage or person, to which he replied in negative. Being dissatisfied by his declaration his baggage, which was heavy and bore Tag No,XH 272451, XH 272452, was brought to the screening machine in presence of two independent Mashirs namely Naseem Gul and Muhammad Shaukat. Screening of the bicycle revealed the presence of same substance in the frame of the said bicycle. The frame of the bicycle was broken by the staff which yielded the recovery of gold chains, which on weigh ment before the above said Mashirs was found to be 303.51 Tolas. The gold chains so recovered along with the bicycle, travelling documents, baggage and claim tags etc., were seized vide a Mashirnama and the passenger/accused was arrested and served with notice under section 171 of the Customs Act, 1969.
' Preliminary investigations revealed that the accused was received by a I.B. Personnel who was with him till he was intercepted and brought to the screening machine at which point the I.B.
Personnel disappeared from the scene. Efforts are being made' to identify and apprehend the I.B.
Personnel involved in the offence. Further investigation is in progress. "
2. After usual 'investigations final charge-sheet in this case bearing No,5 of 1996 was filed in the Court of learned Special Judge (Customs and Taxation), Karachi on 7-3-1996. Bail application on behalf of the accused/applicant was filed in the trial Court which was rejected by the learned Special Judge (Customs and Taxation), Karachi, vide order, dated 18-2-1996.
3. The applicant has filed this bail application with the prayer that this Court be pleased to release him on bail.
4. I have heard Mr. Shoukat Hussain Zubedi, learned counsel for applicant, who has contended that co-accused namely Muhammad Alcamo-has been granted bail by the learned trial Judge; that since both the accused are facing trial under section 156(1)(98) of the Customs Act, 1969, as such principle of consistency will apply and the applicant is also entitled to be released on bail; that according to the F.I.R. The applicant had two checked baggage's on which tags were attached and it is not the case of the prosecution that said baggage's contained any gold; that it is not the prosecution case that the checked baggage's of the applicant were opened and the alleged recovery was made from therein by the Seizing Officer, in presence of the witnesses; that there appears to be uncertainty as to whether the said baby bicycle was in the possession and custody of the present applicant or not; that if the bicycle was the third item of the applicant, in that event there should have been a tag attached to it, but no such tag has been recovered; that the investigation in this case appears to have been conducted by the Investigating Officer while sitting in his office; that statements of P.W. Nasim Gul and P.W. Muhammad Shoukat were recorded on 22- 1-1996; that the case requires further enquiry on the point of recovery of bicycle; and that this is a case of dishonest investigation.
5. Mr. Shoukat Hussain Zubedi, learned counsel for applicant has referred following authorities:
(1) Case of Amir v. The State PLD 1972 SC 277: ' In this matter the petitioner was one of the accused persons for the murder of Jan Muhammad. A cross-case arising out of the same occurrence was registered against the complainant party for the murder of one Yasin, who belonged to the petitioner's party. The occurrence arose over a land dispute. The petitioner and his co-accused had applied to the High Court for their bail after it was rejected by the learned Sessions Judge. A learned Single Judge in the High Court had granted bail to the co-accused of the petitioner but had rejected his prayer for bail.
' It was urged before the learned Single Judge in the High Court that one of the alleged eye- witnesses named Manzur, who lodged the F.I.R. Against the accused and who was also one of the accused in the cross-case, had stated in his statement recorded by the committing Magistrate that the petitioner (Amir) had fired his gun at Jan Muhammad after the latter had fired at Yasin, killing him, and therefore, a complete case of the exercise of the right of self-defense for the petitioner was made out. The learned Judge, however, did not consider this to be a good ground for bail for the reasons, firstly, that ultimately it may turn out to be a case under section 304, Part I, P.P.C., for exceeding the right of self-defense, the punishment for which extends to transportation for life. Secondly, the learned Single Judge had observed that ultimately the case may turn to be one of a free fight between the two parties.
' In this background the learned counsel for the petitioner submitted before the Honorable Supreme Court that the other eye-witnesses, who have been examined in the case, have made statements in the same strain. If this is correct and there is no other evidence to connect the petitioner with the crime of murder, and his right of self-defense is completely established he can press for his discharge or acquittal, as under section 96 of the Penal Code "Nothing is an offence which is done in the exercise of private defense".
' In this background the learned Supreme Court observed as follows:-- "There is no mention in the order of the learned Single Judge that he has also examined the statements made by witnesses other than P.W. Manzur. We have, therefore, directed the learned counsel for the, petitioner to renew the petitioner's application for bail before the learned Single Judge, who will consider the whole case for purposes of bail on the data that is available. It may also be observed that even for purposes of bail, law is not to be stretched in favor of the prosecution.
' Any benefit of doubt arises, it must go to the accused."
6. Mr. Muhammad Roshan Essani, learned D.A.-G. Has contended that investigation is conducted by Fareeduddin, Investigating Officer who has recorded 161, Cr.P.C. Statements; that declaration was not filed by the accused as required under the Customs Act; that two checked pieces of baggage's bore tag No,XH 272451, XH 272452; that it is not the case of the prosecution that I.B. Personnel was arriving from Dubai; that full particulars about the incident, recovery and baby bicycle are mentioned in the F.I.R. And other relevant documents, seized and secured by the prosecution; that huge quantity of gold of 303.51 Tolas is recovered and seized by the Customs Authorities.
7. Mr. Muhammad Roshan Essani, learned D.A.-G. Has referred following authority:--
(1) Case of Qamar Bughio v. The State 1993 PCLU 2135: The rule laid down in this authority is on the point of consistency, which is as under:-- "It would be seen that the rule of consistency is not absolute and inflexible. It can be applied only when a person, on merits, is entitled to bail. If a thing is not permitted to be done directly, it cannot be allowed to be done indirectly. When a person is not entitled to bail, on merits, he cannot claim it solely on the principle of consistency. In fact, the principle of consistency has a very limited scope and while applying this principle, the facts of each case shall be the deciding factor for the grant or refusal of bail. In the instant case, the applicant on merits is not entitled to bail. Therefore, he cannot be admitted to bail on the above principle."
8. I have considered the submissions made by the learned counsel for the parties and I have also perused the material placed with the case. The prosecution story is very short, consistent and convincing from lodging of the F.I.R. Up to the finalization of the charge-sheet against the accused/applicant. According to the prosecution since the passenger (applicant) collected his baggage from the conveying belt which comprised of two checked pieces of baggage, he started moving out of the hall through the Green Channel and was intercepted at the exit gate and was asked to declare whether he was carrying any contraband gold in his baggage or person, to which he replied in negative. On being dissatisfied, the baggage of the applicant, which was heavy and bore Tag No,XH 272451, XH 272452 was brought to the screening machine in presence of two independent Mashirs, namely Naseem Gul and Muhammad Shaukat. Screening of the bicycle revealed the presence of some substance in the frame of the said bicycle, which was broken, which yielded the recovery of gold chains, which on weighment was found to be 303.51 Tolas only.
The Investigating Officer had recorded statements of the witnesses and also prepared Mashirnama of recovery on the very day i,e, 17-1-1996 at 16-45 at International Airport Jinnah Terminal, Karachi in presence of Mashirs Naseem Gul and Muhammad Shaukat. The Mashirs.
Admittedly are of the locality. I have also perused Mashirnama which fully corroborates the contents of the F.I.R. And so also the prosecution story. Admittedly no malice, enmity or animosity is alleged against the prosecution. The prosecution has collected evidence and has charge-sheeted the accused for the offence. There is absolutely no delay in lodging of the F.I.R. Or in conducting the investigation which is conducted by another Officer and not the complainant. The authority cited by Mr. Shoukat Hussain Zubedi is quite different and distinguishable from the facts of this case. In the reported authority (1) it is mentioned that the witnesses during evidence recorded by the committal Magistrate, deposed to the fact that the petitioner Amir had fired his gun at Jan Muhammad after the latter had fired 'at Yasin, killing him. This aspect of the evidence was rightly considered by the Honorable Supreme Court and the case was remanded back with the direction to the learned Single Judge to reconsider the bail application.
9. It would be very much pertinent to refer case of Manzoor and 4 others v. The State PLD 1972 SC 81.
In this case the D.B. Has observed as follows:-- "As repeatedly held by this Court, bail in non-boilable case is a matter within the discretion of the Courts, which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in' the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence."
10. The case of the co-accused is quite different and distinguish as no any recovery has been alleged by the prosecution against co-accused Muhammad Ikram, who has rightly been granted bail by the trial Judge. The accused had tried to go through the Green Channel and was intercepted at the exit gate by the Customs Authorities in presence of the witnesses and his baggage was screened in screening machine, which revealed presence of some substance in the handle bicycle. There appears no difference by mentioning cycle or baby bicycle by the prosecution in the F.I.R. Or in the statement recorded by the Investigating Officer or in Mashirnama of recovery. By now it is settled law that only tentative assessment of the evidence is to be done while deciding bail application. Name of the accused/applicant is mentioned in the F.I.R. The prosecution witnesses in their statements recorded during the investigation, have fully supported the case of the prosecution. Mashirnama of the recovery also fully supports case of the prosecution, Mashirs are admittedly of the locality. Admittedly no any enmity, malice or animosity is alleged at the hands of the prosecution and it is not appealing to a common sense as to how a huge quantity of gold worth Rs,16,81,000 can be foisted by the Investigating Officer. The case is recently charge-sheeted. The authority cited by the learned D.A.-G. Is very much relevant and applicable so far the facts of this case are concerned. Principle of consistency cannot be applied in this case because case of co-accused Muhammad Ikram is quite different and distinguishable, as pointed out earlier in this order. PLD 1972 SC 81 is quite applicable so far the facts of the present case are concerned.
11. Prima facie, in view of the evidence so collected by the prosecution, there are reasonable grounds to believe that the accused has committed an offence with which he is charge-sheeted and the offence falls within the prohibitory clause of section 497, Cr.P.C. There is no substance in this bail application, which is accordingly dismissed.