Applicant Fateh A.I and one Abdur Rehman are named accused in F.I.R. NQ.15 of 1992 of P.S. Khipro, District Sanghar registered under sections 156(1), 157 and 178 of the Customs Act on 18-3-1992. Bail application on behalf of the accused was moved before the Special Judge (Customs and Taxation), Karachi which was rejected on 6-12-1992. Application for bail was moved before this Court and my learned brother Mukhtar Ahmed Junejo, J. Granted bail to accused Abdur Rehman holding that he was not the owner of the recovered gold, that he was at the most a carrier and his case was not covered by the prohibition contained in section 497, Cr.P.C. Bail application of applicant Fateh A.I was rejected. Said order was passed by my learned brother on 15-2-1993. M.A.
No.318 of 1992 which is under disposal was filed on 23-2-1993 under section 561-A, , Cr.P.C. For recalling the order, dated 15-2-1993 passed by my learned brother and for deciding bail application of applicant Fateh A.I after fresh hearing. The main grounds urged in this application are that the Advocate who had earlier appeared before this Court had not argued the grounds specifically taken in clauses (a), (b), (c) and (j) in the application which escaped the notice of the then Advocate appearing for applicant as applicant would be entitled to bail if such grounds are taken into consideration.
2. Ground No. (c) in the application was with regard to the jurisdiction of the Rangers to seize the gold beyond five miles of the belt, ground (b) pertained to the falsehood of prosecution case which is established on reinvestigation of the case, ground (c) pertained to the relevant provision of law under which the offence would fall and ground (j) pertained to the contention that the prosecution case has not been put in juxtaposition with the case put up by the defence.
3. The facts of the case in nutshell are that on 18-3-1992, on the basis of information received by Captain Muhammad Arif of Indus Rangers. That Fateh A.I (applicant therein) is a notorious smuggler and was going to smuggle a huge quantity of gold to India. A party to hold Naka Bandi was constituted under the command of Inspector Muhammad Ilyas of Indus Rangers. At 2-30 a.m.
Between Piller Nos.781 and 781/1 within a distance of one mile of Indo-Pakistan Border the said party held Naka Bandi. At 4-00 a.m. a Toyota Hilux bearing Registration No. 1122 was spotted. The said vehicle was stopped by the Rangers and on search of the said vehicle, 20 sealed packets each containing 50 slabs of gold, total weight 10,000 tolas valued at Rs.3,70,00,000 was seized and recovered under a Mashirnama. Such incident report was submitted by Inspector Muhammad Ilyas the S.H.O., P.S. Khipro who registered the case against applicant and co-accused Abdur Rehman under sections 156(1)(8), 157 and 178 of Customs Act.
4. At the very outset the learned counsel for the applicant was asked to specify if order earlier passed by this Court rejecting bail application of applicant could be recalled or reviewed and whether on facts and grounds bail could be granted to the applicant. This legal objection was raised after learned counsel for the State pointed out that the prayer contained in this application cannot be granted and that applicant has to approach the trial Court and move fresh bail application and if same is rejected he could approach this Court. Mr. Muhammad Awais Shahid, learned counsel for the applicant, referred to the case of Gulzar Hassan Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 355, Ejaz Qadeer v. The State and another 1975 PCr.LJ 471 and Alim Khan and 3 others v. The State 1993 M LD 536 and in all these judgments it was held that the High Court could in its inherent jurisdiction recall or reverse an order made by it. The said judgments have been perused and the contention of learned counsel raised during arguments is supported by the view taken in all these judgments.
5. It is then argued that since the contents of F.I.R. Showing that the vehicle in which applicant and co-accused were found travelling was estopped at a distance of one mile from the border belt was incorrect and based on falsehood, the brother of the applicant. A.I Muhammad Raja requested through an application dated 15-8-1992 for holding fresh enquiry into the matter as his brother Fateh A.I was falsely implicated. On such application Major Shahid Haroon was deputed to go on the spot and verify the real facts. Said Officer reached the spot and examined Captain Muhammad Arif, Naek Mazhar Hussain, Sepoy Fayyaz Hussain and some others and the enquiry revealed that the raiding party had held Naka Bandi at Ding Chowk at which place the vehicle was stopped and applicant and co-accused were riding the said vehicle and 10,000 tolas gold was recovered. Said place Ding Chowk is 33 k.m. From Khipro Town and 90 miles inside the border. The enquiry further revealed that Inspector Muhammad Ilyas under instructions of his officers had changed the actual place of incident. The report further revealed that the applicant had successfully proved through documentary evidence that gold was purchased by him from Chaudhry Muhammad Mushtaq and Haji Usman.
6. This enquiry report is produced verbatim in the final challan Annexure 'E' to this application which according to the learned Advocate was not referred by the learned Advocate then appearing for the applicant. On the basis of details given in the challan, learned Advocate contends that the version given in the F.I.R. Is proved to be false as Captain Muhammad Arif, in order to oblige his superiors and to strengthen false report, had changed the place of incident so as to bring the case within the provisions of Customs Act and that applicant or co---accused would be liable for offence of attempt to smuggle huge quantity of gold out of Pakistan. On the basis of such circumstances the learned Advocate contends that it becomes a case of further enquiry and the applicant was concerned with the smuggling into Pakistan of a large quantity of gold valued at rupees one crore and such an offence was punishable with imprisonment for six years. The Supreme Court of Pakistan granted bail to Haji Wali Muhammad after observing that the evidence against him was still to be evaluated and as a general rule on a charge of smuggling into Pakistan of a large quantity of gold valued at about one crore of rupees, not involving a sentence of death or transportation for life, bail should ordinarily be allowed disregarding the grounds of the seriousness of anti-social nature of the offence, unless there be strong grounds in the shape of evidence for the belief that he is guilty. In the case of Ahmed A.I Khan (1988 PCr.LJ 370), the allegation against the accused was of attempting to smuggle Rs.10 lacs in Pakistani currency and from the allegations in the F.I.R., and interim challan, the case appeared to be of further enquiry and the prosecution case appeared to be that the accused acted as a mere carrier and bail was granted. In the case of Nabo Jan (1981 PCr.LJ 951) the accused leaving Pakistan on 25-1-1981 for Riyadh, Saudi Arabia was intercepted at Karachi Airport 6-00 p.m. And his baggage and personal search was taken and 825 Saudi Rials and 1,84,000 Pakistani rupees were recovered from his possession but he was granted bail on the ground that effect of the circumstances in which the accused was refused contents of challan are not disputed by him and that the actual version about the incident other than the one given in the F.I.R has been disclosed.
9. I have heard learned counsel at length and perused the record as well as the case-law referred. I am clear in my mind that the application seeking to recall the order dated 15-2-1993 is maintainable and some of the grounds taken in the main application for bail were not urged by the then Advocate appearing on behalf of the applicant. The perusal of the challan Annexure 'B' in fact falsifies the contents of F.I.R. These contents are based on the report of Major Shahid Haroon Agha who was deputed by the Director-General of Indus Rangers to hold a spot enquiry. Thus, there are two versions of the case, one that gold was seized and secured from a vehicle within one mile of the border belt and other that it was seized within 90 miles of the belt. Another fact which cannot go unnoticed is that Major Shahid Haroon Agha who conducted fresh enquiry came to the conclusion that applicant had satisfactorily proved that gold was lawfully purchased by him from various importers. Whether or not such documents produced by applicant were genuine or otherwise, would be considered by the trial Court. The above two facts make the case of applicant of further enquiry and I am, therefore, inclined to grant him bail. He shall be released on bail if he' furnishes one surety in the sum of Rs.10 lacs and P.R. Bond in the like amount to the satisfaction of the trial Court.