' This order will dispose of Special Criminal Bail Application No,55 of 1995 for bail moved on behalf of applicant Nazrul Islam who was detained in F.I.R. No,G-4DCI of 1994 dated 311-1994 lodged by complainant Iftikhar Mehmood under section 2(s) read with section 16 of the Customs Act, 1969 punishable under section 156(1)(8)(89) ibid. Five accused namely Muhammad Akhtar, Nazrul Islam, Muhammad Siddique, Arshad Ali and Miss Nighat Gul were named in the F.I.R. But, in the first round, only accused Miss Nighat Gul and co-accused Nazrul Islam (present applicant) and Arshad Ali moved Bail Applications Nos.24 of 1994 and 25 of 1994 respectively. Bail was granted to accused Miss Nighat Gul but the other two co-accused were refused bail. Hence both of them approached the Hon'able Supreme Court for their bail but their petition was dismissed with the following observations:-- "While declining bail to the petitioners the learned Judge of the High Court did not shut the door completely for the petitioners but left their case open for reconsideration in case the prosecution had failed to file final challan in the case as pointed out in the order. As has been observed in his order dated 28-2-1995, the learned Judge allowed the petitioners to repeat their bail application before the High Court in case a final challan was not filed by the prosecution after expiry of onemonth from the date of passing the said order. It would, therefore, only be proper that the petitioners should once again approach the High Court in this regard. In that case we would refrain from making any observations in this case which might adversely affect the parties' case one way or the other."
2. Hence the present bail application in its second round before this Court.
3. Contents of the F.I.R. And the interim charge-sheet are spread over 31 pages. It may, therefore, not be reasonably feasible to reproduce whole prosecution story except certain glaring aspects in brief which can be summarised as under:--
(i) A team of Custom Intelligence, after receiving credible information that a syndicate of gold smugglers would smuggle huge quantity of gold from Gulf to Pakistan, mounted a surveillance upon the smugglers. Two members of the gang namely Miss Nighat Gul and the present applicant Nazrul Islam left Karachi for Islamabad on 2nd November, after boarding one PIA flight while remaining three members namely Muhammad Akhtar, Arshad Ali and Muhammad Siddique reached Islamabad by International Flight Mt. PK-280 from Abu Dhabi. The said flight was converted into Domestic Flight No,PK-363 and all the five members, then, started journeying in the same flight from Islamabad to Karachi. The alleged smugglers took their seats near toilets ' F' and 'G'. Soon after take-off accused Muhammad Akhtar entered toilet 'F' to take out the secreted gold.
One officer of the Customs took notice of the same and asked one purser to take part in opening the door of the toilet after disclosing his own identity so that the accused be taken to task. The accused was found taking down the roof of toilet by unscrewing its screws to take out the gold.
Realising that the door was opened by someone he took back and shut the door with flashing force.
' The door was knocked but it was not opened. The Captain of the aircraft was informed. Resultantly the door was opened. The accused 'came out and he was asked to take his seat and not to take- off unless permitted. Nazrul Islam, the present applicant is stated to have entered into another toilet but he did not remove the gold due to danger of his apprehension.
' On arrival at Karachi, the aircraft was searched thrice on second and third November, 1994 which resulted in recovery of 7000 tolas of gold. Mushimamas were prepared and after service of notice under section 171 of the Customs Act they all were arrested.
(ii) According to the prosecution story, two sets of smugglers were involved in this case to smuggle gold in the following manners: ' One set used to travel from Gulf with smuggled gold in such flights which had to be converted into domestic flights from Islamabad or Lahore to Karachi. This set of smugglers had to travel on the same flight as domestic passengers to take out the gold. In case of apprehension, the domestic set of smugglers could be saved on the basis of legal technicalities. Thus, as per prosecution story, three smugglers travelled on International flight and reached Islamabad whereas the remaining two passengers who had reached Islamabad from Karachi, joined them and they, then, all started travelling together for Karachi in the same International flight which had been converted into domestic flight.
4. The learned counsel for the applicant averred that bail had been granted to accused Miss Nighat Gul and as the case of present applicant was not different from her case, hence he was also entitled for bail.
' This contention is neither convincing nor has any foundation because if it had any sound footing the bail would have been granted in the first round when Miss Nighat Gul was granted bail. Similarly if there had been some holes in the said order the Hon'ble Supreme Court would have filled those holes by granting him bail. However, it is necessary to point out why bail was granted to accused Miss Nighat Gul and refused to the present applicant when apparently allegations against both of them were the same because the silence on this point may create certain doubts and misunderstanding about the Court.
' The learned counsel for Miss Nighat Gul had sought bail on the basis of first proviso to section 497(1), Cr.P.C. Which provides judicial discretion to a Court to direct that any person under the age of sixteen years or any woman or any sick or infirm person being accused of any non-bailable offence be released on bail. The word "may" used in the first proviso to section 497(1), Cr.P.C. Is of great importance for the Court which gives judicial discretion to every concerned Court to grant or refuse bail to any of the persons mentioned in the said proviso. It is on account of this discretion that the superior Courts sometimes granted bail in certain cases and refused bail in other cases.
The learned counsel for the State had referred only those judgments which supported his contention, that bail be not granted to Miss Nighat Gul notwithstanding this reality that she was a woman, such as the cases reported as (i) Ibrahim v. Hayat Gul and others 1985 SCMR 382, (ii) Mst.
Mumtaz v. The State (1981 PCr.LJ 386) and (iii) Muhammad Haleem Chohan v. The State (1980 PCr.LJ 128) while the learned counsel for Miss Nighat Gul had cited those cases which supported his contention that bail be granted to every woman in accordance to the spirit of the first proviso to section 497(1), Cr.P.C. Without any exception. He relied upon the cases reported as (i) Mst. Ruqia Parveen v. The State PLD 1985 Lahore 571 and (ii) Amir Khan v. Mst. Gohram (1985 SCMR 1847).
5. The increasing trend of defaming superior judiciary on the basis of apparently conflicting judgments, as is evident from the above-referred cases, had forced this Court, while granting bail to Miss Nighat Gul, to observe that: "Judges of Courts belong to educated community of respectable elite and they cannot be equated with narrow-minded religious, political or ethnic sectists with reference to their 'difference of opinion' ."
' It has become a fashion for certain irresponsible persons to defame the superior judiciary by referring apparently conflicting judgments of the superior Courts authored by the learned Judges on the same points. I have no doubt in my mind that so far as interpretation of any provision of law is concerned, difference of opinion among the Judges of superior Courts is natural. But so far as factual aspects of different cases are concerned there may not be a single case with unharmonizable examples to be quoted in support of such propaganda. Nobody can deny this reality that each case rests upon its own circumstances and facts which are mostly different from each other. It is, therefore, natural that judgments would appear conflicting on account of these different circumstances."
' In support of above lines, the Court referred the offences under section 17(4), Offences Against Property (E.O.H.) Order, 1979 and under section 302, Qisas and Diyat Ordinance. In both these offences although murder and punishment of death are common factors yet murder under section 302, Qisas and Diyat Ordinance is compoundable but murder under section 17(4), Offences Against Property is not compoundable. Similarly, it seems strange that offence under section 302, Qisas and Diyat Ordinance with punishment of death is compoundable but an offence under section 188, P.P.C. Punishable with simple imprisonment for one month or fine of Rs,200 or both is not compoundable. This difference can be easily understood if the offences are divided into two classes i,e, offences against individuals and offences against society. On the basis of these propositions the Court harmonised all those judgments which were "apparently conflicting and then granted bail to Miss Nighat Gul because her case was attracted by the first proviso to section 497(1), Cr.P.C. For grant of bail in the light of circumstances while the present accused was refused bail because "he" was not "she" to get benefit of the said provision of law.
6. Come to the case of present applicant. The prosecution had ample opportunity to bring any evidence agaisnt the applicant at the time of filing final charge-sheet. But nothing more was brought to light except that which was already on record. The said interim charge-sheet was treated by the prosecution as final charge-sheet. The pieces of evidence against the applicant as reflected by the record are as under:
(i) He accompanied with Miss Nighat Gul by journeying in PIA Flight No,PK-308 from Karachi to Islamabad on 2-11-1994.
(ii) He travelled back with other co-accused persons in PK-363 from Islamabad to Karachi.
(iii) He entered one of the toilet but did not get the gold on account of his fear or arrest, as alleged by the prosecution.
' These pieces of evidence were not sufficient to refuse bail to him. The only pieces of evidence which connected the applicant with the main smugglers were their passports which revealed that co-accused Arshad travelled 19 times, Muhammad Siddique 8 times and the present applicant 19 times from Gulf to Pakistan. He may have been smuggling on account of his travelling from Gulf to Pakistan for so many times but no one can be punished on the basis of these presumptions that he had been smuggling every time. In the case in hand the applicant was not the member of that set of accused persons who travelled from Gulf to Pakistan with the snuggled gold. Hence the question before this Court was as to whether the applicant was guilty of any offence attracted by any provision of the Customs Act, 1969? The learned counsel for the State stressed that the applicant was liable to be punished under section 178 of the Customs Act which reads as under:-- "If any two or more persons in company are found together and they or any of them, have goods liable to confiscation under this Act, every such person having knowledge of this fact is guilty of an offence and punishable in accordance with the provisions of this Act as if goods were found on such person."
7. I have no doubt in mind that the three co-accused who had travelled together from Gulf to Pakistan in an International flight with smuggled gold were fully attracted by section 178 of the Customs Act because they knew what they were bringing with them. But the question arises as to whether the present applicant who had travelled from Karachi to Islamabad and then from Islamabad to Karachi with other co-accused was attracted by the said section of the Customs Act or by section 202, P.P.C. Particularly when the gold had not been put in the toilet by the present applicant while travelling from Islamabad to Karachi as it was already in the toilets before the aircraft started its journey as domestic flight from Islamabad to Karachi? If the customs officer had waited till landing of the aircraft to start his action against these smugglers, it would have been possible to arrest the present applicant with some quantity of gold. In absence of any recovery of smuggled gold from the applicant and without any specific role played by him in this trip, it may not be possible for this Court to reach any definite conclusion regarding the offence committed by the applicant with reference to section 178 of the Customs Act or section 202, P.P.C. It is only the trial Court which can decide this point with certainty, and that too, after recording the evidence in this case about the exact nature of offence committed by the accused. These realities have made out a case of further enquiry within the meaning of section 497(2), Cr.P.C. And in such an exigency applicant Nazrul Islam was also found entitled to the grant of bail. Accordingly bail was allowed to the applicant in the sum of Rs,5,00,000 (rupees five lacs) and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.
8. By a short order dated 29-6-1995 I had granted bail to the applicant and these are the reasons for passing the said order.