1. ' Applicant seeks bail in Crime No,P-028/97/JTC/(Dep). The brief facts of the matter are that a credible information was received by the senior officers of the Customs Department that applicant would attempt to smuggle Pakistani currency to Abu Dhabi by Gulf Airlines Flight No,GF-733. In pursuant to the above information watchful vigil was mounted on all the outgoing passengers of the above flight and eventually the applicant passenger was spotted and identified. Before subjecting his baggage to examination he was afforded an opportunity to declare whether or not he was carrying any contraband goods either in his baggage or on his person. The applicant did not declare anything since there was a specific information, his entire baggage comprising one briefcase and two suit-cases was to be examined in presence of Musheers namely Allah Bux and Hamid Hussain. In the first instance the examination of the briefcase was carried out in presence of Musheers and as a result of which huge amount of Pakistani currency was recovered therefrom.
2. The passenger (applicant) was asked as to what was the quantum of Pakistani currency, he was carrying with him. He disclosed that he had in his possession Rs,20 lacs only. Since there existed cogent reasons for a thorough examination, the brief-case as well as two suit-cases were subjected to examination in presence of the above Musheers as a result of which Pakistani currency Rs,1,70,00,000 and U.A.E. Dirhams 45,100 were aggregately recovered from the brief-case as well as from the suit-cases. The Pakistani and foreign currency recovered were seized along with containers, travelling documents and some other miscellaneous documents including mobile phone which was held by the passenger at the time of departure under a Musheernama prepared on the spot. The applicant was accordingly arrested and notice under section 171 of the Customs Act, 1969 was served upon him. After lodging of the F.I.R. The case was referred to I&P Branch of Customs House, Karachi.
3. ' Interim charge-sheet was submitted in the Court of learned Special Judge (Customs and Taxation), Karachi on 22-3-1997. Bail application on behalf of the accused/applicant was moved before the trial Court which was rejected on 21-3-1997. Hence this application.
4. ' Mr. Syed Sharifuddin Pirzada learned counsel for the applicant contended that applicant is one of the Directors of Messrs Khalid Rauf and Company (Pvt.) Ltd. Based at Lahore. They are engaged in the construction of Plazas, bridges, roads, dams, spillways, highways, reservoirs, Airports, Seaports and act as Civil, Mechanical and Electrical Engineers for Government of Pakistan, Provincial Government, Foreign Governments/Agencies and local authorities.
5. ' Learned counsel further contended that a grand International Auction for sale of heavy machinery/equipment which is used by the applicant's firm for carrying out various projects was held at Mussafah Abu Dhabi from February 23 to 26-2-1997 and applicant's firm bought various lots therefrom and made part payment of US Dollars 2,18,400 and the last date of balance amount for payment was 9-3-1997, therefore, applicant had to rush to Abu Dhabi with the remaining amount.
6. The applicants' firm received two cheques bearing No,0072416 and C072417 amounting to Rs,17,377,936 (Seventeen million three hundred seventy-seven thousand nine hundred thirty-six rupees) drawn on ABN AMR() Bank, Lahore on 6-3-1997. The cheques were deposited on the same day in the account of firm in National Bank of Pakistan, Lahore. The banker (National Bank of Pakistan) of the applicant released the cash to him on 8-3-1997 at 1 p.m. After collecting the said amount from the bank, the applicant did not have enough time at Lahore to get the Foreign Exchange required by him and his flight for Karachi was to leave Lahore at 2-30 p.m. The applicant reached Karachi for his onward flight to Abu Dhabi, the time left in between was to be utilized by the applicant to convert Pakistani currency into foreign exchange for payment to Nomad International Auctioneers Abu Dhabi, U.A.E., to whom the payment had to be made on the next day i,e, 9-3-1997. The applicant arrived at Karachi on 8-3-1997 by P.I.A. Flight which left Lahore at 2-30 p.m. And arrived at Karachi at 5-15 p.m. At the very day since applicant had to convert Pakistani currency and get foreign exchange in lieu t1r, .r.Eof, he immediately proceed to International Departure Lounge much in ad f9ance of check-in-time so that he could get the foreign exchange required by him from the counters located inside the International Departure Lounge. The Gulf Air Flight GF-733 was to leave Karachi for Abu Dhabi at 8 p.m. That the baggage of the applicant was screened and checked at Lahore Airport for his domestic flight. That the A.S.F. Officials reported the matter to the Customs Authorities at Lahore Airport who in turn passed the information to Customs Authorities at Karachi Airport misapprehending that the applicant might attempt to smuggle Pakistani currency to Abu Dhabi. That after entering the International Departure Lounge at Karachi Airport applicant (accused) immediately proceeded towards the money changers counters located inside the lounge, when he was suddenly intercepted by the Customs Staff and asked to show his passport and ticket. After seeing the passport of the .Applicant, he was stopped from proceeding towards the money changers counters and he was arrested and Pakistani currency which he was carrying towards the money changers counters was seized alongwith U.A.E. Dirhams.
7. No other question was asked from the applicant and no opportunity whatsoever was given to him to declare Pakistani currency which he wanted to change into U.A.E. Dirhams/US Dollars. That applicant's firm has been executing large projects of Government as well as Foreign Agencies.
8. During the year 1995-96, Rs,82,54,091 was paid as income-tax by the applicant's firm. In addition the applicant and his family members paid Rs,39,90,000 as Wealth Tax and Rs,3,12,082 as income- tax during the same year. Applicant additionally paid Rs,4,20,000 as wealth tax. That the applicant is a Director of a very reputed construction company. He has been frequently visiting foreign countries in connection with his business. The applicant wanted Pakistani currency to be converted into foreign exchange and it was precisely for that purpose that he was proceeding towards money changers counters. That applicant could not resume his onward journey to Abu Dhabi due to his arrest, a request was made to Messrs Nomad International Auctioneer for extension of time to make the payment of balance amount. The above request was accepted and the payment of the balance amount was made to the auctioneers on 26-3-1997. That the applicant hails from a respectable business family and has contributed considerably towards the national exchequer by way of payment of income-tax, wealth tax and other levies and is a law abiding citizen of Pakistan.
9. That the applicant is innocent, has been made a victim by overzealous officials who in order to get reward for seizure and also to prove their efficiency, registered this false and concocted case against the applicant. That there are no reasonable grounds to believe that the applicant is guilty of the offence with which he is charge-sheeted.
10. ' In support of the contentions, learned counsel for the applicant has filed memorandum and Articles of Association of Khalid Rauf and Company (Private) Limited as Annexure "D" at page 41. Of the bail application, certificate of incorporation issued by Registrar of Companies in favour of Khalid Rauf and Company (Pvt.) Ltd. Which is at page 61, Government of the Punjab Communication and Works Department letter, dated 4-11-1996 Annexure "E" at page 63 of the bail application showing approval to the renewal of the firm of Khalid Rauf and Company in category "A" for the year 1996-97, License of Constructor/Operator issued by the Pakistan Engineering Council Annexure "F" at page 65, brochure issued by Nomad International Auctioneers showing large international auction to be held on 23-2-1997 to 26-2-1997 Mussafah, Abu Dhabi, U.A.E. As Annexure "G", photo copies of two cheques issued by ABN AMR() Bank in favour of Messrs Khalid Rauf & Co. For an amount of Rs,13,256,937.15 and Rs,4,120,998.88, Annexure "H" at page 81, Certificate issued by the National Bank of Pakistan as Annexure "J" at page 83, dated 20-3-1997 showing cash payment of an amount of Rs,17,200,000 through cheque No,934003 at 1-00 p.m. On 8-3-1997, Buyer No,176 Annexure "K" at page 85, copy of fax message from Nomad International Auctioneers to Messrs Khalid Rauf & Co. (Pvt.) Ltd. Showing request of the applicant for addition of time to have been accepted by the Nomad International Auctioneers, letter, dated 10-3-1997 issued by the Khalid Rauf & Co. (Pvt.) Ltd. To Nomad International Auctioneers requesting for extention of time for balance payment upto 26-3-1997 from the last date of payment viz. 9-3-1997 and photo copy of brochure to very large International Auction by the Nomad International Auctioneers showing that machinery purchased by the applicant's firm must be removed from the Yard by 10-3-1997.
11. ' Learned counsel for the applicant has referred the following case-law:-- (1) Tariq Bashir and others v. The State PLD 1995 ' SC 34; ' (2) Sikandar A. Karim v. The State 1995 SCM R 387;
(3) Unreported case of their Lordships of the Supreme Court of Pakistan in Ayaz Mahmood v. The State Criminal Petition No,12 of 1997;
(4) Muhammad Fareed Qureshi and another v. The State Special Criminal Bail Application No,2 of 1995 and Noor Ahmad v. The State Special Criminal Bail Application No,4 of 1995.
12. ' Mr. Syed Tariq Ali, Standing Counsel has contended that a huge amount of Pakistani currency of Rs,1,70,00,000 has been recovered from the applicant who did not declare the same before the Customs Authorities. That according to section 187 of the Customs Act burden of proof shall lie on the applicant accused. That interim charge-sheet has been submitted by the prosecution against the accused, no plausible explanation has come forward from the applicant as to how he was carrying on the above Pakistani currency to Abu Dhabi which he could have exchanged easily in US Dollars or U.A.E. Dirhams from the National Bank of Pakistan, Lahore instead of taking cash with him.
13. ' The learned counsel for the applicant referred Act XII of 1992 of Protection of Economic Reforms Act, 1992, Article 4 of the same provides as under:-- "(4) Freedom to bring, hold, sell and take out foreign currency.--- All citizens of Pakistan resident in Pakistan or outside Pakistan and all other persons shall be entitled and free to bring, hold, sell, transfer and take out foreign exchange within or out of Pakistan in any form and shall not be required to make a foreign currency declaration at any stage nor shall anyone be questioned in regard to the same."
14. ' That according to Notification, dated 28-7-1992 issued by the Government of Pakistan provides that Pakistani Currency of Rs,3,000 is allowed to be carried by the passenger which is very discriminatory to the provisions of Act XII of 1992 which requires that there is no restriction/bar in taking out foreign exchange within or out of Pakistan in any form and shall not be enquired at any stage with regard to the same.
15. ' I would like to discuss the case-law referred by the learned counsel for the applicant.
(1) Tariq Bashir and others v. The State PLD 1995 SC 34. The brief facts of the case are that on 7-4- 1993 at 1-00 p.m. Five unknown persons, duly armed, committed dacoit in the house of Mst. Robina Amjad and took away ornaments, jeweler, cash and prize bonds and F.I.R. Under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was registered at police station on the same day. The petitioners Tariq Bashir, Shahzad Bashir, Kamran Bashir, Suhail Zafar, Muhammad Moiz and Zafar Iqbal were granted bail by a learned Judge of this Court which was subsequently cancelled by my Lord Mr. Justice Mamoon Kazi (as his Lordship then was). Against this order the petitioners approached the Supreme Court and their Lordships were pleased to observe that one learned 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 petitioners are guilty of the offences alleged against them, whereas on the same material on record, another learned Judge of the same High Court has come to a totally different conclusion that there are reasonable grounds to believe that the petitioners have committed the alleged crime. We feel that the contrary conclusions arrived at by the two learned Judges of the High Court have made the existence of reasonable grounds to connect the accused with the crime doubtful, entitling the petitioners to benefit of doubt at this stage. In any case, the contrary views/opinions of the two learned Judges of the High Court about the guilt of the petitioners have made out a case of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C.
16. ' In my humble opinion with all humility at my command I am of the opinion that the facts of this case has no relevance to the facts of the case in hand.
(2) Sikandar A. Karim v. The State 1995 SCM R 387 ' The brief facts of this case are that Federal Investigation Agency while conducting Enquiry No,16 of 1993 came to know that Messrs Mehran Motor Car Company in connivance with the officials of Karachi Port Trust deprived the Government exchequer to the tune of Rs,10,95,552 by evading payment of demurrage on three consignments of cars imported during the period between 14-5- 1993 to 30-5-1993. The F.I.A. Registered F.I.R. No,7 of 1993 on 3-12-1993 against Sikandar Karim and others under section 409, P.P.C. Read with section 5(2) of the Act of 1947. Sikandar Karim surrendered for his arrest and was taken into custody by the F.I.A. Bail application of the applicant in the above case was allowed by a learned Judge of this Court by order, dated 25-1-194. However, no sooner the appellant was released in the above case, he was re-arrested in F.I.R. No,23 of 1994 registered against him along with several others on 21-9-1994 under section 409/420/468/471/34, P.P.C. Read with section 5(2) of the Act of 1947 and section 156(1), (14) and (77) of the Act. F.I.R. No,23 of 1994 was the outcome of enquiry No,812 of 1993 conducted by the F.I.A. The allegations against the appellant in F.I.R. No,23 of 1994 were that he over invoiced the value of Daewoo Racer Taxi Cars, imported by him under Prime Minister's Public Transport Scheme with the help of foreign suppliers and later, on arrival of these vehicles in Pakistan he also managed to get the local sale price of these vehicles fixed at a price higher than its actual value through the connivance of concerned Government officials. It was further alleged that as a result of over invoicing of the value of imported cars, the appellant evaded taxes relating to Iqra Surcharge Flood Relief Fund, import licenses fee and income-tax. It would be pertinent to reproduce the observations of their Lordships as follows:-- "Before proceeding further, we may state here that unlike an ordinary criminal case where burden of proof is always on the prosecution to prove its case against the accused person beyond reasonable doubt, section 156(2) of the Act provide that where goods specified in clause (s) of section 2 of the Act or in a notification issued thereunder, are seized under the Act in the reasonable belief that an act to defraud the Government of any duty payable thereon or to evade any prohibition or restriction for the time being enforced in respect of such goods has been committed, the burden of proving that no such act has been committed is on the person from whose possession the goods are seized. It is, therefore, quite clear that a 'person accused of an offence under section 156(1)(8) of the Act has to discharge the initial burden of showing that the goods recovered from his possession were neither smuggled nor their possession was unlawful.
17. This burden has also to be discharged tentatively at the stage when the person accused of the offence under section 156(1)(8) of the Act applies to the Court for grant of bail. The appellant who was accused of the offence of smuggling auto parts in the case and was charged under section 156(1)(8) of the Act, was therefore, fully entitled to show to the Court while applying for grant of bail that the goods recovered from his office were not smuggled but lawfully imported. The learned Judge in Chambers, therefore, should not have felt surprised when the appellant offered to show that the auto parts seized by the F.I.A. From his show room were lawfully imported by them. The learned Judge should have tentatively examined the import documents produced by the appellant before him to prima facie determine whether the auto parts seized from the show room of the appellant could be those lawfully imported in the country in order to examine the plausibility of the plea of appellant. In view of the provision of section 156(2) of the Act, the learned Judge in Chambers could not decline to examine the plea of appellant at the stage of bail on the ground that these documents could be considered by the trial Court when the trial commenced. Mr. M.
18. Nawaz Abbasi, the learned A.S.C. Appearing for D.A.-G. Contended before us that as these documents were not considered by the learned Judge.In Chambers the same cannot be considered now by this Court while considering the bail plea of the appellant. The contention of Mr. Abbasi does not appear to be correct. As pointed out by us earlier, the appellant, was entitled to show before the learned Judge in Chambers that the goods seized from his office were not smuggled goods in accordance with the provisions of section 156(2) of the Act. The learned Judge having declined to consider these documents, this Court can take them into consideration to determine the plausibility of the plea of appellant. In the present case, the allegation of the prosecution against the appellant is that he smuggled unspecified number of auto parts of unspecified description in the trunks of 200 Daewoo Racer Taxis imported by the appellant in the year 1992. The appellant is admittedly a car dealer engaged in the import of huge quantity of motor cars as well as automobile parts. The allegations in the F.I.R. Show that from 1992 up to this date the appellant has imported huge quantity of auto parts and these imports also covered the items allegedly recovered from his show room by the F.I.A. As smuggled items. We have tentatively examined the invoices which were produced by the appellant before the High Court to show. That the auto parts seized from his show room were lawfully imported by them. These invoices relate to import of huge quantity of auto spare parts by the appellant. These invoices bear stamp of Muslim Commercial Bank and reference of the letters of credit established by the appellants' Company for import of these parts. The imports of auto parts under these invoices include all those auto parts in substantial quantities which were seized from the show room of the appellant. The imports covered by these invoices were made during the year 1993 while the allegation of prosecution in the case against the appellant is that he smuggled auto parts of unspecified description in good numbers in 1992 in the trunks of 200 Daewoo Racer Cars. Therefore, the possibility that the parts seized from the show room of appellant were those which were covered by subsequent import in 1993 could not be ruled out at all at this stage. It was also contended before the learned Judge on behalf of the appellant that the items which were recovered from his show room and were alleged to be smuggled items are freely available in the open market but this contention was brushed aside by the learned Judge in Chamber by saying that such a contention can never be considered as convincing in the field of criminology. The learned Judge in Chambers while making above observations failed to take into consideration that he was dealing with a case arising under the Customs Act and the appellant was accused of the offence of smuggling goods which he claimed were freely available in the open market."
19. ' The declaration forms as required were filled in by Sikandar A. Karim, invoices bearing stamp of Muslim Commercial Bank and reference of the letters of credit established by the Messrs Mehran Motor Car Company for import of these cars were produced. The items were recovered from the show room of the applicant's Motor Car Company. The contention of the learned counsel for the applicant is that the documents referred hereinabove submitted by the applicant showing having purchased the machinery in auction held in U.A.E. Payment of which was to be made by the applicant by 9-3-1997 and that on 8-3-1997 be received cash of Rs,1,70,00,000 and was intending to exchange the same with the money changers located at the International Departure Hall Jinnah TerminaL - Complex, Quaid-e-Azam International Airport. Applicant neither orally nor in writing has declared the currency before the Customs Officers, therefore, the documents submitted by the applicant during the time of hearing the bail application in the absence of declaration which applicant was bound under the provisions of section 139 of the Customs Act are hardly to be considered. Under the circumstances with due respect to the authority of their Lordships in my humble opinion this authority is not relevant to the facts of the present case.
(3) Ayaz Mahmood son of Muhammad Siddique v. The State Criminal Petition No,12 of 1997. The brief facts of the case are that Senior Preventive Officer, Customs House Karachi, received a credible information that an attempt would be made to smuggle gold into the country by concealing it in the toilets of P.I.A. Aircraft flight No, PK-282. The flight originated from Doha and was on its way to Peshawar via Karachi. After flight had landed at Karachi Airport and the Karachi bound passengers had disembarked, the toilets of the aircraft were rummaged with the assistance of P.I.A.
20. Engineering and Line Maintenance Staff, in the presence of P.I.A. Security Supervisor, Muhammad Hanif and Senior Flight Steward, Shabbir Bin Zia. The rummaging resulted in the recovery of thirteen packets containing gold bearing foreign marks and numbers concealed behind the mirror of A.F.T.
21. Toilets of the aircraft. Whereafter spot investigation was conducted on board, Ayaz Mahmood, accused petitioner was sitting on the seat adjacent to the toilet, appeared to be nervous and jittery on investigation. A hand bag belonging to him was searched and a cotton vest with front and back pockets, allegedly designed to carry gold and one broad stretchable belt was found in it. Besides, two money changing receipts of U.S. $ 400,000 and U.S. $ 806,000 for money changed at Dubai were also recovered from the accused Ayaz Mahmood. On opening the packets, in presence of the witnesses, 260 bars of gold weighing 10 Tolas each totalling 2600 Tolas bearing foreign marks and numbers viz. "Johnson Matthey 999.0 London 10 Tolas" were found from those packets. The facts of this case are not applicable to the facts of the present case inasmuch as the alleged gold was recovered from the toilets of the P.I.A. Aircraft, whereas in this case Pakistani currency of 1,70,00,000 has been secured by the prosecution from the brief-case and suit cases of the applicant, the presence of which is not denied by the applicant himself whereas on the contrary applicant's plea is that after taking the cash from the National Bank Lahore, he proceeded to Karachi through domestic flight and after arrival at Karachi he was proceeding towards money changers counter so as to get the foreign exchange in lieu of the Pak. Currency and was subsequently arrested and implicated in this case. I am of the firm view that this authority is not applicable and favorable to the case of present applicant.
(4) Muhammad Fareed Qureshi and another v. The State Special Criminal Bail Application No,2 of 1995 and Noor Ahmed v. The State Special Criminal Bail Application No,4 of 1995.
22. ' The brief facts of the case as narrated in F.I.R. Are that Pervez Iqbal, Preventive Officer was on duty at International Departure, Jinnah Terminal Complex, Q.I.A.P., Karachi and was informed by the A.S.F.
23. Staff on duty that they had intercepted a passenger namely Muhammad Farid Qureshi on suspicions that he was carrying contraband currency in a Asali Brand large briefcase. Complainant informed his seniors and rushed towards the A.S.F. Hold baggage machine. He was associated in the deliberations, therefore, he asked the passenger whether he had any contraband currency in his baggage to which hey denied. The brief-case was examined in the presence of Sub-Inspector Muhammad Shafi and Inspector Ghulam Mujtaba Zaidi which resulted in the recovery of huge amount of Pakistani currency found to be in the denomination of Rs,1,000 and Rs,500 notes. The passenger along with the intercepted Pak. Currency were removed to the A.S.F. Control Room accompanied by another passenger namely Abdul Rasheed. The currency notes were then counted jointly by Customs and A.S.F. Staff and the total amount of Pak. Currency so recovered was found to be Rs,74,99,500. The Pakistani currency was accordingly seized alongwith the container and travelling documents of the passengers under a Musheernama. Passenger Abdul Rasheed claimed that the Pak. Currency jointly belonged to him and Farid Qureshi. Since he claimed seized currency he was also taken into custody and his travelling documents were also seized. Upon scrutiny of the travelling documents both the above accused persons were leaving for Dubai by Emirates Flight No,EK-603. The Airline Tickets of both the accused persons were purchased from the same Travel Agency on the same date and both the tickets bore the serial number in sequence i,e, 961 and 962. The passengers were accordingly arrested and served with notices under section 171 of the Customs Act, 1969. Preliminary investigations revealed that two officials of Civil Aviation Authority namely Noor Ahmed Memon and Muhammad Tariq Hameed were instrumental to get the said passengers cleared through the Customs and A.S.F. Channels misusing their official capacity. This arrangement was made by co-accused Abdul Rasheed. They were also arrested for conniving and abetting in the commission of offence. After usual investigation interim charge- sheet was submitted in the Court of Special Judge (Customs and Taxation), Karachi where bail application was rejected and the accused persons approached this Court where my learned brother Shafi Muhammadi, J. (as he then was) allowed interim bail to the applicant and on 14-12- 1995 passed the following order:- "Mr. Sohail Muzaffar, Advocate for Muhammad Fareed Qureshi and Abdul Rasheed Qureshi.
24. ' Mr. A.Q. Halepota, Advocate for Noor Muhammad and Tariq Hameed. Mr. Roshan Ali Issani, D.A.-G.
25. ' The applicants were granted interim bail by this Court on 28-2-1995 and I was expecting that the Investigating Officer of this case would submit the final challan in Crime No,1 of 1995. Admittedly the challan has not been submitted till date. A period of about ten months is more than sufficient for submitting challan before the trial Court. In these circumstances I confirm the bail of these applicants. However, the prosecution is at liberty to move an application for cancellation of this bail, if something new is brought on record at the time of filing the final challan."
26. ' The facts of these two bail applications in my humble opinion are quite different and distinguishable from the facts of the present case. The bail was confirmed on the ground that after the lapse of more than 10 months final charge-sheet was not submitted by the prosecution in the Court. Moreover, Civil Aviation officials were also found to be involved in the crime whereas none from Civil Aviation Authority is involved in this matter. Moreover, the plea of the applicant himself is that he was taking the currency for exchanging the same with the money changers, therefore, this authority has no applicability to the case of the present applicant.
27. ' I have gone through the material placed with the case. Admittedly accused applicant is Director of a firm which is carrying on construction work in the country as well as out of the country and applicant's firm is registered with the Government of Punjab as "A" class contractor, no doubt applicant's firm and his family has paid income-tax wealth tax towards the exchequer. The case of the applicant himself is that he received the cash of Rs,1,70,00,000 from the National Bank of Pakistan, Corporate Branch Rehman Plaza, Lahore, on 8-3-1997 at 1-00 p.m. And proceeded towards Karachi through domestic flight and the presence of currency in his baggage was noticed by A.S.F. Force and same was conveyed to the Customs Authorities at Karachi while going towards money changers counter he was intercepted and arrested. The applicant and his firm has been dealing internationlly and have taken huge machinery in auction held at Mussafah, Abu Dhabi U.A.E. For which applicant has to make payment by 9-3-1997. Pak. Currency in any case was not to be accepted by the Nomad International Auctioneers, the easy way of payment to the same auctioneers should have been through U.S. Dollars or U.A.E. Dirhams which could have been easily prepared by the National Bank at Lahore from where cash currency was received by the applicant.
28. ' Contention of the learned counsel for the applicant that applicant intended to get the Pakistani currency exchanged at the money changers counter before his departure to Abu Dhabi is hardly to be considered. The money changers stationed at the airport are not supposed to exchange such huge quantity of currency, when this question was put to the learned counsel for the applicant as to whether money changers are authorised and permitted to keep and exchange the currency of Rs,1,70,00,000 at a time, whereas money changers working at the airport are supposed only to meet the emergency requirements of the passengers. The learned counsel replied that if the amount of Pakistani currency valued at Rs,1,70,00,000 would not have been available with the money changers at the moment the same would have been deposited by the applicant and money changers would have been requested to get the same exchanged from the City Centre or from the concerned bank, by that time the onward flight scheduled for Abu Dhabi might have left, then how payment to Nomad International, could have been made in time. The applicant admittedly has taken journey many time abroad with his business trips and he could have been in the knowledge as to how much currency can be changed easily with the money changers booth at the Airport.
29. The explanation so furnished by the applicant according to my humble opinion is not genuine, convincing and acceptable. The provisions of section 187 provides as follows:-- ' Section 187. Burden of proof as to lawful authority, etc.--- When any person is alleged to have committed an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force the burden of proving that he had such authority, permit licence or other document shall lie on him."
30. The applicant has not declared the currency orally or in writing before the Customs Authorities on his arrival at Karachi Airport which is mandatory as required under section 139 of the Customs Act which reads as under:-- ' Section 139. Declaration by passenger or crew baggage.- The owner of any baggage whether a passenger or member of the crew shall, for the purpose of clearing it, make a verbal or written- declaration of its contents in such manner as may be prescribed by rules, to the appropriate officer and shall answer such questions as the said officer may put to him with respect to his baggage and any article contained therein or carried with him and shall produce such baggage and any such article for examination."
31. 'Apparently animosity/enmity has not been alleged against the Customs IB officials to show that the case is the result of the same. The contention of the learned counsel for the applicant that he has been made a victim by over-zealous officials who in order to get reward for seizure and also to prove their efficiency registered this false and concocted case is hardly to be considered and acted upon inasmuch as the interim charge-sheet has been submitted by the prosecution, investigation is yet to be finalized by the agency concerned and evidence is yet to be recorded by the trial Court.
32. ' The accused applicant is a businessman dealing in construction work in the country as well as abroad. He has already travelled abroad which is manifest from the documents seized by the prosecution, and the possibility that the offence being repeated, moreover possibility of tampering with the prosecution evidence at the hands of the accused, if released on bail cannot be ruled out.
33. ' In my humble opinion no plausible explanation has been given by the applicant for taking such huge amount in cash from Lahore towards Karachi. If applicant has any intention to take foreign currency he could have changed it at Lahore in U.S. Dollars or U.A.E. Dirhams at the National Bank Lahore at the time of receipt of cash from the Bank or he could have changed the same at Lahore.
34. ' From the facts, circumstances and case-law discussed here in the earlier part of this order, prima facie there are reasonable grounds tobelieve that the accused applicant is the guilty of the offences for which he has been charge-sheeted.
35. ' Resultantly the bail application must fail which accordingly is hereby dismissed.
36. ' Observations made hereinabove tentatively are for the decision of the bail application only and learned trial Court in any case is not to be prejudiced during the trial where evidence is to be adduced by the parties, which is to be analyzed by the trial Court.
37. ' After hearing the parties by short order on 14-4-1997 I have rejected the bail application and these are the reasons for the same.