1. ' The brief facts of the case are that on 10-1-1998 Muhammad Ashfaq Tahir, Preventive Officer, Customs, Karachi, lodged F.I.R. Which reads as under:-- "On 10th January, 1998, while performing my Evening Shift duty at International Departure Hall, Jinnah Terminal Complex, Quaid-e-Azam International Airport, Karachi, I was directed by the I.P.S. DEC Mr. M. Salimullah to contact the A.S.F. Authorities who had reportedly recovered contraband gold from an outgoing passenger. Accordingly, I reported at the office of the A.S.F., 'C' Company, JTC/QIAP, where I was given a covering letter by the Security Officer Mr. Muhammad Tariq, Company Commander 'C' Company alongwith the custody of a Pakistani passenger namely Mullah Qaid Johar and assorted gold slabs weighing 100 Tolas and 20 grams. According to the contents of the covering letter, Sub-Inspector, Muhammad Ashiq (US-2562) had recovered the aforesaid gold slabs which were concealed in a pair of shoes worn by the passenger at the A.S.F.'s Security Search Counter at International Departure Satellite during the course of body search of the passenger Mullah Qaid Johar, holding Passport No,A660904, when he reported there at the time of boarding a P.I.A. Flight PIK276 for Bombay. The contraband gold slabs (10 slabs of 10 Tolas each and 1 slab of 20 grams all bearing foreign marks and Nos.), so recovered by the A.S.F., were accordingly taken into custody/possession alongwith containers and passenger's travelling documents in presence of two witnesses Messrs Muhammad Sarwar and Sardar Muhammad and were seized under the cover of a Mashirnama. Accused passenger namely Mullah Qaid Johar was arrested and served with a notice under section 171 of the Customs Act, 1969. Seized gold slabs are being referred to the Gold and Gem Expert for test and valuation. A report in this regard will be submitted before this Honourable Court in due course of time."
2. ' After lodging of the F.I.R. And finalisation of the investigation charge-sheet against the accused/applicant was filed before the learned Special Judge (Customs and Taxation), Karachi.
3. The bail application in Case No,10 of' 1998 (Mullah Qaid Johar v. The State) was moved before the trial Court, same was rejected by the learned Special Judge (Customs and Taxation), Karachi, vide order, dated 4-2-1998. Hence the applicant/accused approached this Court to be released on bail.
4. ' I have heard Mr. Rana M. Shamim, learned counsel for the applicant/accused, who has contended that the personal search of the applicant was taken in violation of section 159 of the Customs Act which makes obligatory upon the Officer of Customs to inform the person to be searched about his right to be taken to Gazetted Officer of Customs or Magistrate before conducting the search. That the learned trial Court has not considered/appreciated the fact that soon after the personal search of applicant. When, where and at what time the first Mashirnama of recovery was made which requires further inquiry. That the A.S.F. Officials have not been entrusted with the powers of the Customs Officer either under "The Airport Security Force Act, 1975" or under "The Customs Act, 1969. 'That there are no reasonable grounds to believe that the applicant has committed a non- bailable offence but there exist sufficient grounds for further inquiries into his guilt entitling him to be released on bail. Mr. Rana M. Shamim has referred the following case-law:--
(1) Manzoor and 4 others v. The State PLD 1972 SC 81,
(2) Abdul Qudoos v. The State 1987 PCr.0 1140,
(3) Syed Niaz Ahmad Naqvi v. The State 1989 PCr.LJ 1357,
(4) Farid Khan v. The State 1993 PCr.LJ 500,
(5) Tariq Bashir and 5 others v. The State PLD 1995 SC 34,
(6) Abdul Hameed alias Bagga and 2 others v. The State 1997 M LD 1478.
5. ' Mr. Musheer Alam, Standing Counsel, has contended that the Airport Security Force Act is a Special Act creating a force to deal with the special problems arising at the airport. The powers conferred upon it by the Act are not governed or overriden by the provisions of the Customs Act. That an Assistant Sub-Inspector is an officer of the Airport Security Force and under section 6(e) of the Airport Security Force Act, 1975 he is inter alia competent to take effective measures for prevention of smuggling. That recovery of 100 Tolas and 20 grams is effected from the pair of shoes worn by the applicant/accused alongwith his Pakistani Passport, P.I.A. Ticket, 'Indian Visa and the assessed value of the gold so secured is about Rs,5,20,260. That after finalisation of the investigation, charge-sheet has been submitted before the . Trial Court on 10-1-1998 and the case is very recent one. That the punishment provided for the offence is 14 years' R.I. And probability and possibility of tempering of the prosecution evidence at the hands of the applicant/accused cannot be ruled out, if he is released on bail. Learned Standing Counsel has cited 1983 PCr.LJ 2299.
6. ' I would like to discuss the contention of the learned counsel for the parties and the case-law cited by them:-- According to section 6(1)(e) of the Airport Security Act, 1975:-- "An officer or member shall--
(c) take effective measures for preventing hijacking. Sabotage, placement of car bombs, letter bombs and dangerous articles, smuggling of precious metals, stones. Arms, ammunition, narcotics and any other goods the bringing into or taking out of Pakistan of which is prohibited by or under any law for the time being in force."
7. ' The prosecution story as unfolded in the F.I.R., referred hereinabove, is that the Customs Officer received a covering letter of the Security Officer Mr. Muhammad Tariq, Company Commander "C"
8. Company alongwith the custody of the accused/applica,nt and gold slabs weighing 100 Tolas and 20 grams, S.-I. Muhammad Ashiq had recovered the gold slabs which were concealed in a pair of shoes worn by the applicant/accused at the A.S.F's. Security Search Counter at International Departure Satellite during the course of body search of the accused/Applicant. The gold slabs were bearing foreign marks and numbers and the applicant/accused alongwith the recovered slats was handed over to the Customs Officer for proper action to be taken by them under the provisions of the Customs Act.
(I) PLD 1972 SC 81: ' In this case their Lordships of the Supreme Court were pleased to release the petitioner on the ground that the police on investigation found the accused to be guilty whereas the complainant party consistently maintained that the police report was not correct and that the real culprits were placed in Column No,2 of the challan by the police and the persons charged as accused were innocent.
9. ' With due respect to the authority, I am of the firm opinion that this authority on the face of it has no bearing to the case of the present applicant..
(2) 1987 PCr.LJ 1140: ' In this case Sajjad Ali Shah, J. (as his Lordship then was) considered the inherent discrepancies occurring in prosecution case as to at what particular place samples were drawn, whether during search conducted by police official at time when accused and heroin were produced before Customs Officer. In the present case the A.S.F. Inspector Muhammad Ashiq recovered the gold slabs from the applicant/accused which were concealed by him in a pair of shoes worn by him at the A.S.F. Search Counter at International Departure Satellite during the course of his body search.
10. On the face of it, in my humble opinion, this authority is not relevant to the facts of the present case.
(3) 1989 PCr.LJ 1357: ' In this case the accused was apprehended at the International Departure Hall, Karachi Airport, while leaving for Bankok and from his possession currency of different countries valued at Rs,49,600 was recovered. A case under clause (8) of section 156(1) of the Customs Act, 1969 was registered againk and after usual investigation he was sent up for trial before Special Judge (Customs and Taxation). Karachi on 9-5-1981. The applications under sections 265-K and 435/439, Cr.P.C. Seeking his acquittal on the ground of delay was filed and the points for consideration before late Qaiser Ahmed Hamidi, J. Were that the delay of 8 years in the conclusion of trial tantamounts to denial of justice, and thus, an abuse of process of law. That there was no probability of the applicant being convicted of any offence, as the search of the applicant was conducted in violation of section 159 of the Customs Act, 1969 and that the currency alleged to have been seized from the possession of applicant was not produced in Court, giving rise to an inference that the same did not exist.
11. ' I am afraid this authority on the face of it is quite different and distinguishable from the facts of the case in hand inasmuch as the F.I.R. Was lodged on 10-1-1998 and after completion of the investigation charge-sheet has been submitted before the trial Court on 22-1-1998 where the evidence is yet to be adduced by the parties, in this case the alleged gold was secured by the A.S.F.
12. Officer while conducting the body search, of the applicant/accused's shoes which he was wearing and according to section 6(1)(e) of the Airport Security Force Act, 1975 the officer concerned is competent to take search and take necessary steps. Under the circumstances, with due respect to the authority in my humble opinion the same is not applicable and favourable to the case of the applicant/accused.
(4) 1993 PCr.11 500: ' In this case the learned Single Judge of this Court was pleased to allow the bail application with the following observation:-- "On further perusal of the Mashirnama it is completely silent regarding recovery of the travelling documents from the applicant. Passport, ticket, boarding pass etc. Are not to have been secured in this Mashirnama. Only a general term has been used that the travelling documents were seized.
13. Furthermore, I find that all the F.I.Rs, are virtually carbon copies, excepting for the names of the accused, passport number and quantity of gold are different and the rest of the material in the same context. I further find that four of the co-accused were let off by the Seizing Officer and in this regard the learned counsel for the applicant has asked if some of the accused persons are found innocent and let off by the Customs Authorities, then that by itself creates doubt about the co- accused and the benefit of this should also be given to the co-accused. No doubt it is true and is also an admitted position that four of the accused persons have been let off by the Seizing Officer.
14. Subsequently on 21-6-1992 F.I.Rs, have been registered against those four persons and, therefore, it cannot be said that the four accused, thus, let off are not accused."
15. ' The above order of the learned Judge of this Court shows that the four persons were suspected by the Customs Officer and they were not charge-sheeted and travelling documents, Passport, Ticket etc. Were not recovered, whereas in the present case the accused/applicant was apprehended by the A.S.F. Officer and apart from gold a brown pair of shoes worn by the applicant/accused alongwith Pak. Passport No,A660904. P.I.A. Ticket No,214-4405-024-599-3, Indian Visa No,P7/8959/97, dated 21-11-1997 in duplicate were secured and handed over to the Customs Officer alongwith the A.S.F. Covering letter dated 10-1-1998. No other person was apprehended by the A.S.F.
16. Or Customs Officer except, the applicant/accused, who has been charge-sheeted before the Court of law. In my humble opinion this authority under the circumstances is not applicable and helpful to the case of the applicant/accused.
(5) 1997 M LD 1478: In this case Sh. Ijaz Nisar, J. (as his Lordship then was) was pleased to grant the bail with the following observation:-- "They are behind the bars since about eleven months without any progress in the trial. Accordingly, I grant the application and admit them to bail in the sum of Rs,1,00,000 (one lac) each with two sureties each in the like amount to the satisfaction of the trial Court/Sessions fudge, Lahore."
17. ' Whereas in this case the applicant was apprehended on 10-1-1998 and the charge-sheet against him was submitted before the trial Court on 22-1-1998, the case is recent one whereas the prosecution has yet to adduce the evidence. In any case the applicant is in custody since about last one month whereas in the case referred hereinabove the applicants were released on bail because they were in custody since about 11 months and there was no progress in the trial as such this authority in any case is not helpful and applicable to the present case.
18. ' Learned Standing Counsel has referred Ahmad Kabir v. The State 1983 PCr.LJ 2299 of Special Appellate Court (Customs) Lahore High Court, Lahbre. In this case A.S.-I. Saeed Iqbal of the Airport Security Force was at the relevant time deployed for duty at the personal search cabin at the airport. The appellant was wearing jeans and showing signs of nervousness. A.S.-I. Saeed Iqbal felt suspicious and searched the appellant. He recovered two plastic bags from under the jeans 'tied to the testicles. These bags contained 345 grams of heroin worth Rs,1,00,000 (about). The appellant was arrested and a case under section 156(1)(8) of the Customs Act was registered against him.
19. After completion of the investigation charge-sheet was submitted before the learned Special Judge, Lahore for offences under section 156(1)(8) of the Customs Act, 1969. After conclusion of the trial, the appellant Kabir Ahmad was sentenced to suffer R.I. For a period of three years and to pay a fine of Rs,5,000 in default of payment of the fine he was ordered to receive simple imprisonment for a further period of six months. Against this judgment the appellant preferred the appeal which was considered by Saad Saood Jan, J. (as his Lordship then was). The learned Judge considered the provisions of Airport Security Force Act, 1975 specially section 6(e) referred hereinabove in the earlier part of this order and was pleased to maintain the judgment.
20. I have gone through the material placed with the case. The applicant/accused was apprehended by the Inspector Muhammad Ashfaq of A.S.F. At the A.S.F. Security Counter, International Departure Satellite during the course of body search, his passport P.I.A. Ticket alongwith visa was secured.
21. Applicant/accused alongwith gold (10 slabs of 10 Tolas each and 1 slab of 20 grams) all bearing foreign marks and numbers so recovered, were handed over to the Customs Officeralongwith forwarding letter and after finalisation of the investigation on 22-1-1998 the charge-sheet was submitted before the Trial Court where evidence is yet to be adduced by the parties. The case-law relied upon by Mr. Rana M. Shamim, Advocate for the applicant/accused, in all fairness is not, helpful and applicable to the present case of the applicant/accused, whereas the case-law referred by Mr. Musheer Alam, learned Standing Counsel, is applicable to the present case, which I most respectfully follow.
22. ' Menace of smuggling of precious metals such as gold and silver is creating problems for the society and for the country at large and the same has nowadays taken very ugly shape of trade which is to be curbed with some strong measures.
23. The present case is very recent one, apparently there appears no reason of false implication of the applicant/accused at the hands of A.S.F. Officer/Customs AUthorities.
24. ' The contention of Mr. Musheer Alam that possibility of tempering of the prosecution evidence at the hands of the applicant/accused cannot be ruled out, if he is released on bail is not without force.
25. ' It is clearly mentioned in the F.I.R. That the gold slabs so secured bearing foreign marks and number alongwith travelling documents Passport, P.I.A. Ticket and visa were handed over to the Customs Officer.
26. ' Moreover, the charge-sheet has also been submitted within time by the prosecution before the Special Judge (Customs and Taxation), Karachi.
27. ' The upshot of the above discussion is that, prima facie, there are reasonable grounds to believe that the applicant/accused is guilty of the offence for which he has been charge-sheeted.
28. ' Consequently the bail application is rejected.
29. ' The applicant/accused may repeat the bail 'application before the Trial Court after some material evidence is recorded.
30. ' After hearing the parties on 11-2-1998 the bail application was rejected by short order. The above are the reasons for the same.