1. By this order I intend to, dispose of Special Criminal Bail Nos.10, 11 and 14 of 1996 as these applications are outcome of the F.I.R. Bearing No.02/DCI/96 under sections 2(s)16, 157, .178, punishable under section 156(1)(8)(82) of the Customs Act, 1969: The facts and law involved in these applications are also same and common. The brief facts of the prosecution case are that staff of the Directorate of Intelligence and Investigation (Customs and Excise), Karachi, received credible information that a syndicate of smugglers is operating under the leadership of Khalid Mahmood with the assistance and active connivance of T.C.S. Management, Aircrew and Customs Staff namely Captain Hidayatullah Pilot, Syed Asif Raza, Co-Pilot and Talat Qamar, Custom Officer, Preventive Collectorate. According to the allegation of the prosecution the smugglers have adopted a novel modus operandi that the T. C. S. Air-Craft operated from Karachi to Dubai under the garb of Charter Flight, smuggled Falcons from Karachi any contraband goods, including foreign origin liquor concealed/transported frog Dubai for local distribution at Karachi. In pursuance of the information the schedule of T.C.S.. Air Craft Chartered for Dubai has been ascertaine discreetly. The T,C.S. Aircraft bearing Registration No.AP-BFA departed from Karachi for Dubai on 24-1-1996 and scheduled to arrive Karachi. On '26-1-1996. The movement of the Aircraft was monitored and a team of officers mounted surveillance at the General Aviation Area, Karachi Airport. On 26-1-1996 the surveillance team watched that the T.C.S. Air Craft No.AP-BFA, after landing instead of 'parking at the Night Parking area of the Airport was brought to T.C.S. Hanger under the supervision of Talat Qamar, Custom Officer. The movement of the Truck No.LSA-5670 has also been discreetly watched entered in the T.C.S. Hanger Area. The cartons of foreign origin liquor smuggled from Dubai were off-loaded from the Aircraft and loaded in the Truck No.LSA-5670, which was intercepted at the General Aviation. Area near T.C.S. Hanger in presence of two witnesses namely Aminur Rehman s/o Azizur Rehman and Najeebullah Jafri. The Mazda Truck No.LSA-5670 was being driven by Majeed Ahmad s/o Qamar Din who was asked about the load of the truck to 'which he could not reply satisfactory. In presence of the witnesses the cartons loaded on the Truck were examined which were wrapped in Newspaper (Arabic) and Dubai Duty Free Shop paper, affixed with stickers of Dubai International Airport Baggage screened were found with smuggled Johnie Black Label Scotch Whisky and Henieken Beer of foreign origin. Since it was not possible to thoroughly search the cartons at night due to light and condition, the Truck No.LSA- 5670 along with the cartons of contraband Whiskey and Driver Majeed Ahmed with two witnesses was escorted to the office of the Directorate-General situated at B-70, K.D.A. Scheme No.1, Karachi.
2. The Mashirnama was properly prepared on the spot duly signed by the witnesses. In presence of the two witnesses and driver Majeed Ahmed the truck was searched, which resulted in the recovery of 58 cartons of Johnie Walker Black Label Scotch Whiskey Made in Scotland having twelve bottles of Whisky in each carton totalling 696 bottles and two cartons of Nenieken Beer made in Holland containing, 24 cans in each carton totalling 48 cans. The driver Majeed Ahmed could not produce any documents of lawful import and possession of foreign origin Whiskey and Beer. On the personal search of Driver his L.T.V. Driving Licence bearing No.32624 RYL, NIC No.360-87-17 and Registration Book of Mazda Truck No.LSA 5670 were seized. The smuggled 696 bottles of Johnie Walker Scotch Whisky, 48 cans of Henieken Beer of foreign origin, Mazda Truck No.LSA-5670, Ignition Key, Driving Licence, N.I.C. And Registration Book were seized against proper Mashirnama prepared on the spot which was signed by the witnesses. Majeed Ahmed s/o Qamar Din, Driver, was arrested and notice under section 171 of the Customs Act, 1969 was served upon him. During investigation it was revealed that the Aircraft No.AP-BFA was operated by Capt. Hydiatullah, Pilot, and Asif Raza, Co-Pilot, alongwith Khalid Mahmood Shah, shown as Flight Engineer in General Declaration/Manifest for Flight No.AP-BFA though he was not an employee of T.C.S. The Aircraft was used for nefarious activities of smuggling of Falcons and smuggled Whisky, as neither any cargo/passenger was despatched nor any, cargo passenger arrived from Dubai. Looking at the documentary evidence against the culprits involved in the crime and seizure of smuggled Whisky and Beer, Capt. Uydiatullah Pilot and flying Officer Asif Raza Co-Pilot were picked up and arrested and notice under section 171 of the Customs Act, 1969 were served upon them. During interrogation and investigation of Hidayatullah and Asif Raza and evidence collected, prima facie, established the involvement of T. C. S. Aircraft used for the smuggling of Falcons from Karachi and Foreign Origin Whisky and Beer from Dubai and transportation of unauthorised persons without proper documents have been ascertained. Pending finalisation of the usual investigation the accused persons/applicants were remanded to judicial custody where bail application on their behalf was moved which was dismissed by the learned Special Judge (Customs and Taxation), Karachi vide its order dated 15-2-1996. Hence they have approached this Court for their release on bail.
3. I have heard Mr. Rana M. Shamim, learned counsel for the accused/applicants, who has contended that the learned trial Court has not applied its judicial mind in disposing of the bail applications and that the accused/applicants are innocent and have falsely been implicated in this case with malicious intentions for ulterior motives. He further contended that applicant/accused Majeed Ahmed is a simple carrier and is not the beneficiary of the alleged goods and his case cannot be treated as beneficiary. That Majeed Ahmed was arrested with a loaded truck at Malir and thereafter he was brought to the Airport and was further escorted to Directorate Office to Karsaz where he was locked up for the reason best known to the prosecution. That Syed Asif Raza has a clean record of flight operations as co-pilot and has no concern of loading of cargo and boarding of passengers on the flights. That the allegations against the applicant Syed Asif Raza are vague and general in nature which creates reasonable doubt in the prosecution case and was also not responsible for the clearance of the goods and filing general manifest/declaration. That investigation of the case by the complainant Mr. Saud Hasan Khan, Intelligence Officer, himself would amount -to mockery in the eyes of law and his investigation could be biased. That the accused/applicant Hidayatullah (Captain of the Flight) is a pilot of the Chartered Flight and his duties were to operate the flights and ensure the plane air worthiness. He has a clean record of flight operations as pilot. He has no concern of loading off cargo and bonding of passengers on flight as it was the duty of the T.C.S. Flight operators. That he was not responsible for the clearance of the goods and filing in general manifest/declaration. That the co-accused Faheem Akhtar who allegedly filed the manifest has been granted bail by the learned Trial Court. That he was called from his residence after couple of hours and thereafter he was maliciously detained in this case for ulterior motives. The case of all the 3 accused/applicants is that of further inquiry. I have also heard Mr.Farooq H. Naek, D. A.-G. On behalf of the State, who has contended that the applicants have facilitated, accelerated the momentum of smuggling of contraband goods. That the T.C.S. Flight was not a scheduled passengers flight and there was no separate hold for baggage or cargo. That the cartons of foreign origin liquors were off loaded from the Aircraft bearing No.AP-BFA on 26-1- 1996 and loaded on Truck No. LSA-5670 driven by trustworthy driver Majeed Ahmed of Khalid Mahmood and Rana Ahmad the co-accused. The accused Majeed Ahmed was arrested red-- handed near T.C.S. Hanger Airport, while transporting the contraband seized liquor. That the prosecution agency has monitored the movement of the aircraft and also collected the documentary evidences like General Declaration wherein the cargo and passenger has been shown as '.Nil' and Khalid Mehmood declared as Flight Engineer. That the allegations against the applicants are crystal clear and there is no ambiguity and, doubt whatsoever in the prosecution case at this stage of bail application. That only tentative assessment of evidence is to be drawn for deciding the bail application. Mr. Farooq H. Naek, learned D.A.-G. Has submitted that the General Declaration Form as Annexure ' A' wherein Capt. Hidayatullah is shown as Captain, Syed Asif Raza as Flight Operator and Khalid Mahmood as Flight Engineer whereas passenger and cargo has been shown as Nil. Learned D.A.G. Has also submitted that Charter of T.C.S. Aircraft which operated during 9-10-1995 to 26-1-1996 involved in the smuggling of falcons and Houbarabuster from Pakistan to Dubai. That from 9-10-1995 to 26-1-1996 and on various dates the applicant/accused Hidayatullah has acted as Captain of the aircraft shown in the schedule. Mr. Farooq H. Naek, D.A.-G.
4. Has produced Annexures B1-10B13 showing their Charter Invoice, according to which Khalid Mahmood has received payment from T.C.S. c/o Hidayatullah Khan the accused/applicant. Mr. Rana M. Shamim, learned counsel for the applicants, has submitted photostat copy of Flight Operation Manual (FOM). He has also cited the following cases law:
(1) PLD 1972 Supreme Court 81 --- Manzoor and 4 others v. The State: In this petition for Special Leave to Appeal the Hon'ble Supreme Court has observed: This authority is not applicable to the facts of the present case.
(2) 1976 SCMR 190----Nooruland others v , The state . In this authority learned Judge or the supreme court have observed: "The owner of the launch, Noor Muhammad, has absconded which will result in some delay in the completion of the trial. A notice was accordingly issued to the Advocate-General, Sindh, so that the matter could be disposed of expeditiously.
5. We have heard Mr, Muhammad Suleman, Additional Advocate General, Sindh, who maintained that the petitioners were not entitled to bail as the offence with which they are charged is punishable with rigorous imprisonment for 10 years. At the same time he pointed out that the real beneficiary of the smuggled goods viz. The owner of the launch has disappeared while the petitioners were only his paid servants. This indicated that the offences committed by the petitioners was not at par with the offence committed by Noor Muhammad who has yet to be brought to trial. "
6. This authority of the Hon'ble Supreme Court under the circumstances of this case is not applicable and helpful to the present case.
7. (3)1977 SCMR 292 --- Maula Bux and 8 others v. The State and 2 others.
8. In this petition for Special Leave to Appeal the Hon'ble Supreme Court has observed as follows: In view of the this position the learned counsel for the state was willing to concede that there was no possibility whatsoever of a conviction to be recorded against the six appellants who were not identified by the officials of the coast guards and against whom there was no other evidence at all.
9. The facts of this authority in my humble view are quite different and distinguishable from the facts of the case in hand.
10. (4)1979 PCr.L1 915 --- Lal Bux and 2 others v. The State: The facts of this case are that: "On 6th February, 1979, Head Constable Manzoor Hussain along with Police Constables Abdul I-)!Amid and Manzoor Hussain of the Police Station Gulberg, Karachi were on patrol duty when at about 5-00 a.m. They came across two Suzuki vans 'and one jeep on the main road in Block 6, F.B.
11. Area near Aisha Manzil Chowrangi under suspicious circumstances. The police party tried to stop the vehicles but met with resistance from the occupants of Suzuki vans who started firing with the revolver at them and succeeded in' escaping alongwith Cloth Rolls loaded in the vehicles. However, the police party succeeded in stopping the jeep which was found to contain 100 Rolls of smuggled cloth which were seized and the present applicants who were occupying the jeep were apprehended. On further 'investigation the applicants are alleged to have pointed out 192 Rolls of cloth from an under construction bungalow in F.B. Area owned by one Rehmat Ali. The applicants were sent up to stand their trial. The trial Court granted their bail."
12. The facts of this case are quite different and distinguishable and are not favourable to the present case.
(5) 1983 SCMR 727 --- Ghazi Shah etc. v. The State: In this authority learned Judges of the. Supreme Court have observed as under:--- "They are accused alongwith some others, of smuggling gold from Dubai and were arrested outside Islamabad Airport. Their bail application was rejected by the High Court. Learned counsel urged before us that although according to the prosecution itself, Haji Muhammad Afzal is the main accused and the petitioners were merely carriers' for him, yet the former has been granted bail by the High Court, while the application of the petitioners was rejected. The learned counsel referred to Noorul and others v.' The State 1976 SCMR 190, where in a similar case, the carriers were released on bail, with the following observations: At the same time he pointed out that the real beneficiary of the smuggled goods viz., the owner of the launch has disappeared while the petitioners were only his paid servants. This indicated that the offences committed by the petitioners was not at par with the offence committed by Noor Muhammad who has yet to be brought to trial. "
13. This authority of the Hon'ble Supreme Court in my humble opinion is so quite different and distinguishable and is not favourable to the present case.
14. (6)1985 PCr.LJ 2562 --- Syed Noor Hussain v. The State: The facts f this case are that:--- "Applicant Syed Noor Hussain and his co-accused Shamim Akhtar are facing trial for offence under section 2 read with clause (8) of ssection 156(1) of the Customs Act. According to the prosecution case applicant while driving Suzuki Van of Shaheen Services was intercepted at the Karachi Airport, Opposite Civil Aviation Dispensary on 4-4-1985 at 5-30 p.m. There was one other person sitting in the Van, who succeeded in running away on seeing the Customs party. One black leather gents hand purse was recovered from the Van containing 150 slabs of gold of foreign-make weighing iii all 1500 tolas. The applicant Noor Hussain who was driving the Van was apprehended at the spot During the investigation it was found that the name of other person who was in the Van was Shamim Akhtar who worked in PIA as a Technician.
15. It is submitted that the present applicant was just a Driver and he gave lift to Shamim Akhtar who was in possession of that bag from which the gold was recovered and, on seeing the Customs party he decamped leaving bag in the Van.
16. The applicant has given explanation that he had given lift to co-accused Shamim Akhtar and had absolutely no knowledge as to what was carried by Shamim Akhtar in the bag which was left behind in the Van when the Van was stopped by the Customs party.''
17. The facts of this case are quite clear inasmuch as accused/applicant Majeed Ahmad was apprehended by the Customs Authority at the spot wherein he has alleged that he was arrested from Malir and thereafter he was brought to the office of Collectorate of Customs near Karsaz.
18. There is no explanation furnished by him to the prosecution that he was merely a carrier.
19. Furthermore, no one was sitting beside him in the Mazda Truck whereas in the above-referred case one Shamim Akhtar was found to have slept away by leaving the leather bag. Therefore, this authority is not helpful to the case of the applicant. .
(7) 1986 PCr.LJ 2002---Muhammad Baqar v. The State: In this authority the only incriminating evidence available was a statement of co-accused and no other material, on record, connected accused with commission of offence. This authority also is not helpful and is quite different from the facts of the present case.
(8) 1987 MLD 931 --- Dawood Ahmad v. The State: In this authority Ali Nawaz Bhudhani, J. (as he then was) has observed: "It is to be observed that at the base station of the Lufthansa Customs Officers are present on duty and they have to see each and every parcel. The detection of watches escaped the eyes of the Customs Officers who were experts then it would not be possible for a mere servant to know the contents in a sealed parcel. The law presumes that the accused is innocent till he is proved to be guilty. The knowledge of the contents within the parcels is got to be proved in respect of Dawood Ahmad applicant who is merely a servant. On this ground alone he is entitled to bail. "
20. This authority is also quite different and distinguishable and is not applicable to the present case.
21. (9)1988 PCr.LJ 370 --- Ahmed Ali Khan v. The State: In this case my Lord Nasir Aslam Zahid, J. (as he then was) has held as under:---- "I have heard Mr. Rana M. Shamim, learned counsel for the applicant and I have also gone through the documents filed alongwith the present bail application, which are certified copies of F.I.R. Dated 27-9-1986 of the learned Special Judge rejecting the bail application of the applicant moved before him. The case against the applicant is of attempted smuggling of Rs.10,00,000 in Pakistan Currency. From the allegations made against applicant in the F.I.R. And interim challan, it appears to be a matter of further enquiry, whether the applicant was at all a beneficiary. The contention of the learned counsel for the applicant is that from the allegation made against the applicant, the prosecution case appears. To be that the applicant acted as a mere carrier. "
22. With all humbleness at my- command I am of the firm opinion that in this case full facts were not brought before the Hon'ble Judge and none had appeared on behalf of the State and due to absence of counsel for the state and the papers whatsoever were produced by the applicant/accused and after perusal he was released on bail. Whereas in this matter the applicant/accused Majeed Ahmad is alleged to have been arrested by the Customs Officer at the spot along with foreign Whisky and Beer, his N.I. Card, Registration Book of Mazda Truck and his L.T.V. Licence. Therefore, this authority is also not helpful to the applicant.
(10) 1989 PCr.LJ 143 --- Rafiq v. The State Ajmal Mian, J. His lordship (as he then was) has held as under:--- "He has referred to the following cases in support of his above submissions: (i)Ch. Zahur Ilahi, M.N.A. v. The State PLD 1977 SC 273; (ii)Said Mian and another v. Mian Said Baghdad and another 1980 SCMR 420; (iii)Haji Wali Muhammad v. The State 1969 SCMR 233; (v)Torab Shah v. The State, .1978 SCMR 430; (vi)Mir Akhtar Khan Khattak v. The State, PLD 1982 Pesh. 128;
(vii) Abdul Hay-uz-Zafar v. The State, 1983 PCr.LJ 2010; The ratio of the above cases seems to be that the custody is never intended to be used as a punishment but it is designed to facilitate investigation or trial by making the accused available, whenever he is required and that if the case does not fall under prohibitory proviso of section 497, Cr.P.C. And the maximum sentence is less than 10 years' R.I., the Court will grant bail, unless there are some other compelling reasons to refuse the same."
23. This authority under the circumstances is not applicable and helpful to the case of the accused/appellant inasmuch as the accused/appellants have prima facie committed the offence which is punishable up to 14 years which falls under the prohibitory clause of section 497, Cr.P.C.
(11) 1989 MLD 861 --- Rae Aleem Khan v. The State: In this authority Saiduzzaman Siddiqui, J. His lordship (as he then was) has observed:--- "The accused has been challaned under section 156(1)(8) of the Customs Act, 1969. The allegation against the applicant in the F.I.R. Is that he attempted to smuggle Pakistani Currency amounting to Rs.14,37,500 which was concealed in the baggage .Of the applicant. Learned counsel for the applicant firstly contended that the search in this case was carried on in violation of sections 158 and 159 of the Customs Act and as such the very basis of the case having been vitiated the case will fall under the category of further enquiry and the applicant is entitled to concession of bail. The alternate argument raised by the learned counsel for the applicant is that according to the statement made in the challan submitted before the Court the money did not belong to the applicant as it was handed over to him by the one Muhammad Umar in Karachi and was to be delivered to one Marian, shopkeeper in Dubai. In column No.2 of the challan the names of both the two accused are shown as absconders."
24. In this background the bail was granted. A bare reading of the order is quite clear and has no relevancy to the facts of the present case.
(12) 1991 MLD 443 --- Petitioner v. The State: In this authority S.M. Zubair, J. (as he then was) has observed: "After considering the respective submissions of learned counsel for the parties and perusing the record, I find substantial force in the submission of the learned counsel for the petitioner that in view of the judgment of the Federal Shariat Court in Muhammad Iqbal's case, sending of decoy witness in order to trap the accused in un-ethaical and against the spirit of Islamic justice. The prosecution is not entitled to send decoy witness to trap the accused in Shariat cases, hence the procedure adopted by the police officer in apprehending the petitioner is open to legal objection.
25. The complainant should not be the Investigating Officer of the case, because the law requires that the investigation must be conducted by an independent person, who has no personal interest in case. The duty of the Investigating Officer is to bring all the relevant facts before the Court, whether those facts favour the prosecution case or not, to enable the Court to come to a just decision. In the presence of the proved enmity between the petitioner and the local police, as apparent from the proceedings of W.P. No.4204 of 1989, there was no legal justification with the police not to associate any public witness while effecting the recovery of the heroin from the petitioner, who were readily available as recovery was made in the Bazar."
26. This authority is also different and distinguishable from the facts of the present case and in my humble opinion is not helpful to the- present case.
(13) 1993 PCr.L1 1124 --- Fateh Ali and another v. The State: In this case Mukhtar Ahmed Junejo, J. (as he then was) has observed as under:--- "A huge quantity, of gold weighing 10,000 Tolas and valued at rupees thirty seven million has been recovered from the Vehicle No. 1122 by which the applicants were travelling. Out of the applicants, Fateh Ali claimed being owner of the recovered gold having purchased the same from Choudhry Mushtaq through Haji Muhammad Usman Dumba Purchase of such a huge quantity of gold, cannot be for a reason other than its sale in a country where it can fetch more money. 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 show 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 for bail is, therefore, refused."
27. This authority under the circumstances is also not applicable to the present case.
(14) 1994 PCr.LJ 14-87 --- Ali Muhammad alias Ali Kuchi v. The State: The facts of this case are that allegation in the F.I.R. Is, that while A.S.I. Inam Muhammad of P.S. Kalakot was patrolling the area, he got spy information that one person was selling 'heroin' in a lane known as Hidayat Shah's lane. On such information, at 14-30 hours, applicant was arrested from the said place in presence of H. C.
28. Muhammad Ashraf and P.C. Abdul Ghaffar and from the pocket of his shirt, a packet containing 100 grams of 'heroin' and cash amount of Rs.125 was recovered. He was arrested in presence of said Mashirs and sent up for trial. The facts of this case are not similar to the case of the present case.
(15) PLD 1995 Supreme Court 34---Tariq Bashir and 5 others v. The State: In this matter the Hon'ble Judges of the Supreme Court have held as under:--- "In the present case, one Judge of the High Court on examination of the F.I.R., statements recorded under section 161, Cr. P.C. And the material collected during investigation was of the opinion that there were no reasonable grounds to believe that the accused were guilty of the offences alleged against them, whereas on the same material on record, another Judge of the same High Court had come to a totally different conclusion that there were reasonable grounds to believe that the accused persons had committed the alleged crime. The contrary conclusions arrived at by the two Judges of the High Court had made the existence of reasonable grounds to connect the accused with the crime doubtful, entitling the accused to benefit of doubt at such stage. In any case, the contrary views/opinions of the two Judges of the High Court about the guilt of the accused had made out a case of further inquiry within the meaning of subsection (2) of section 497,.Cr.P.C:"
29. In my humble opinion that this authority is also not applicable to the present case.
(16) 1995 PCr.LI 858---Muhammad Imran v. The. State: The facts of this case are that on receipt of a secret information, the F.I.A. Authorities had formed a raiding party and saw the petitioner throwing bundles containing bottles of Acetic Any hydride weighing 90 kilograms. They apprehended the petitioner on the spot. The petitioner made a disclosure to them that the chemical in question had been delivered to him at Railway Station Attari for passing it on to one Humayun at Lahore Railway Station. In my humble opinion the facts of this case are quite different and distinguishable from the facts of the present case.
(17) 1995 PCr.LJ 1012---Muhammad Amin v. The State: In this case Abdul Rahim Kazi, J. (as he then was) observed as under:--- "That the search was not made and seizure was not made at the place where he was intercepted but the same was done at the office of the Customs situate at the airport. This by itself is contrary to requirement of law.
30. In the present case as discussed above the prosecution has failed to prove that it was the same material recovered from the appellant which was sent to the Chemical Analyser 'for his report and that the recovery was made from the appellant in accordance with the legal requirements. In this view of the matter I am inclined to extend benefit of doubt to the appellant. "
31. Mr. Abdul Rahim Kazi, J. '(as he then was) has decided this case in appeal where the prosecution at the Trial Court adduced evidence and the learned Judge of Customs and Taxation, Karachi, after recording evidence and discussed the same, and was pleased to convict the appellant to undergo R.I. For 6 years and to pay a fine of Rs.1,00,000 or in default to undergo further R.I. For one year, and after perusal of the evidence so recorded by the learned trial Court the appeal of the appellant was allowed. In my humble opinion this authority of this Court is not helpful inasmuch as in this case the evidence is yet to be recorded by the trial Court and after recording of evidence and hearing the plea of the accused/applicant the learned Judge will definitely decide the case on merit, therefore, this authority is not applicable to the facts of the present case.
(18) 1995 PCr.LJ 1472---Mst. Iqbal Bibi v. The State: The facts of this case are that on suspicion, a search was conducted and contraband heroin in two packs total weighing 100 grams was recovered from within the rear seat. Makhan Khan the driver and Mst. Iqbal Bibi a lady sitting on the rear seat were apprehended. Nothing was recovered from the personal search of Mst. Iqbal Bibi and the recovery was made admittedly from the vehicle. The facts of this case are not, applicable to the present case.
32. Mr. Farooq H. Naek, learned D.A.-G. Has referred the following cases law:-
(1) PLD 1981 SC 635 --- Muhammad and others v. The State: In this case a D.B. Of the Hon'ble Supreme Court consisting of Nasim Hasan Shah and Aslam Riaz Hussain, JJ. Their lordships (as they then were) have held as under:--- "Even if the testimony of Mehnga, P.W.9, one of the recovery witnesses, is discarded, the evidence of Asghar Ali, S.I. P.W.11, is sufficient to prove the recoveries, because as held in a number of cases the testimony of a Policeman cannot necessarily be disbelieved merely because he is Policeman. "
33. This authority is applicable to the case of the, prosecution that P.Ws. Being Customs Officers, their evidence cannot necessarily be disbelieved.
34. (2)1985 SCMR 382 --- Ibrahim v. Hayat Gul and others: In this authority the learned Supreme Court has observed as under:--- "Be that as it may it is essential to point out that the concept of 'further inquiry' besides being misused in the grant of bail in many cases, the same has not been pressed in service when refusing to grant bail. "
35. This authority is also helpful to the prosecution case.
36. (3)1986 PCr.LJ 2728 --- Khalil Ahmad and others v. The State: In this authority learned Single Judge of Lahore High Court has observed as under:--- "It was next contended that the offence was reported to the Police after about 20 hours which shows that the time intervening the incident and the reports was utilised for consultations and embellishment etc. Possibility of false implication could not be ruled out. This argument is equally without force. Delay in the F.I.R. Has been explained in the report. The question whether or not the explanation will be plausible shall be determined at the trial in the light of evidence. Suffice to say that delay in report is not applied like rule of limitation in civil cases. The number of injuries tends to show that the number of assailants may not be less than five as alleged in the report."
37. In this case also the prosecution has sufficiently explained the delay of few hours-in lodging of the F. I. R. Because the Mazda Truck was intercepted and thereafter it was brought to the Collectorate of Customs and Intelligence and after proper search N.I.C., L.T.V. Driving Licence and Registration Book of Mazda Truck of the applicant Majeed Ahmad were seized and whatever hours were consumed by the prosecution is not delay in its proper perspective.
38. (4)1988 SCMR 64 --- Alam Masood v. The State: In this case the Hon'ble Supreme Court has observed as under:--- "It was submitted by the learned counsel that the bail should have not been refused as he was a mere carrier. We have heard learned counsel at some length but, in bur view is not a fit case for, interference. ".
39. In the above-referred case the petition was dismissed as such it is helpful to the case of the prosecution.
40. (5)1988 SCMR 1899 --- Nadir Khan and another v. The State: In this authority the kon'ble Supreme Court have observed as under:--- "The car was being driven' by Nadir Khan petitioner. Sadiq Jan petitioner was present in it. It was found that Heroin was concealed in the rear seat of the car and six other secret cavities specially made in both the bumpers, both the front mudguards, one more near the oil tank and the other near the Silencer Drum. For a proper search the Vehicle was brought- to Model Town, Bahawalpur and 49 k.Gs. Of heroin was recovered along with one pistol and 15 cartridges.
41. We have gone through the evidence on record and find that the petitioners had the charge of vehicle for a long journey starting from Peshawar and terminating at Karachi. They had the driving licences also. As being persons incharge of the vehicle for such a long journey they must be saddled with the necessary knowledge with regard to the vehicle and its contents. The probabilities or the presumptions are all dependent on the circumstances of each case and in the present case the circumstances fully establish their knowledge and awareness of the contents and their explanation showing the ignorance actually strengthens that conclusion rather than weakening it.
42. As regards the lenient treatment to be afforded to the petitioners as mere carriers: It is one of the maxims of the criminal law that a confessing accused is to be dealt with leniently. There are reasons for it because though belated such a confession assists the administration of justice, lends credibility to the prosecution and helps locating the persons who have greater responsibilities in the matter than the criminal himself. But such leniency cannot be claimed or shown to a person who denies the commission of the offence itself to the end rendering no help to identify the real and major culprits and only res6rts to it by way of an alternative argument to rely on being a helpless destitute carrier. "
43. Whereas in the case in hand applicant Majeed Ahmad is not himself admitting that merely he was a carrier and someone else was the beneficiary. On the contrary he is totally denying the allegation of the prosecution and alleges that he was arrested from Malir and was thereafter brought at the Customs Directorate and Intelligence. The order of the Supreme Court referred hereinabove was passed in criminal petition for leave to appeal and the leniency if any, to, be shown to the carrier has been explained by the Hon'ble Supreme Court.
44. I have heard the learned counsel for the parties and perused the authorities and discussed the same referred hereinabove. The delay whatsoever is I fully explained by the prosecution in the F.I.R.
45. The accused applicant Majeed Ahmad was arrested on the spot and foreign Whisky and Beer have been seized by the Customs Authorities under proper Mashirnama. The prosecution has also produced the statement of the witnesses recorded during investigation. At the very initial stage the case of accused Majeed Ahmad is not that of mere carrier but he has totally denied the allegation of the prosecution and has not even furnished any plausible explanation for his presence alongwith the secured truck and the foreign Whisky and Beer near the T.C.S. Hanger. The incident was that of night time and prosecution has given explanation, whatsoever the time consumed was only due to odd .Hours of the night. The documentary evidence' whatsoever collected by the prosecution, prima facie, shows that Capt. Hidayatullah and Syed Asif Raza are the members of the smugglers Syndicate and with their connivance they took active participation and thus crime 'was committed. The General Declaration Form Annexure ' B' shows NIL passengers and cargo whereas the accused Syed Asif Raza was allowed to travel as Flying Officer and Khalid Mahmood travelled .
46. In the Craft as Flight Engineer. Annexures B/1 to B/13 Charter Invoice which shows that Khalid Mahmood has received payment of Rs.35,61,875 from T:C.S. Courier Services Management through Hidayatullah which shows complicity of all 3 accused in the crime. The contention of Mr.Rana M.
47. Shamim that co-accused Fahim Akhtar who allegedly fired manifest has been granted bail by the Trial Court is not tenable because record of the prosecution shows that accused Fahim Akhtar belongs to Shaheen Services as a Flight Operation Assistant which is totally different organization from the T:C.S. In the General Declaration Form neither it contains the name of Fahim Akhtar nor his signature which, prima facie, goes in his favour and the learned Trial Court has rightly granted bail to him. The documentary evidence, prima facie, shows that the applicants have facilitated, accelerated the momentum of smuggling of contraband goods from and into Pakistan and deliberately avoided to object to an unauthorized person, travelled. As Flight Engineer (Khalid Mahmood). The T.C.S. Flight was not scheduled passenger flight and thereafter there was no separate hold for packages or cargo, therefore, applicant Hidayatullah intentionally, deliberately allowed the cargo in the Craft 1 and allowed unauthorised person Khalid Mahmood Shah to travel as Flight Engineer. The momentum of aircraft was monitored and a team of officers mounted surveillance at the General Aviation Area, Karachi Airport, therefore through their active action the truck containing foreign Whisky and Beer alongwith driver were intercepted. It is not tenable to believe that they have been falsely implicated by their fellow customs officers in this crime. The offence alleged is punishable up to 14 years' R.I. Which comes under the prohibitory clause of section 497, Cr.P.C. Prima facie, the prosecution has collected sufficient evidence against the accused/appellant and there are sufficient grounds to believe the accused/applicants have prima facie committed the offences punishable up to 14 years' R.I. The accused have been charge- sheeted in the Court of law and evidence is not recorded and criteria for grant or refusal of bail is also to see that if there would be any possibility of tampering of the prosecution evidence if the accused are released on bail. In this case also there is every possibility that the accused/applicants may tamper with the prosecution evidence if they are released on bail.
48. Keeping in view the authorities cited by both the parties, facts and circumstances referred here-in- above, there is no merit in these applications which consequently are dismissed. However, the accused/applicants may approach the learned Trial Court for bail after material evidence is recorded. These observations are tentative in nature and the learned trial Court should not be prejudiced during trial at all.