1. ' This order will dispose of Special Criminal Bail Applications No, 4 of 1978 and No, 6 of 1978 as the applicants are accused persons in the same case pending in the trial Court.
2. The brief facts of the case as set out, in the First Information Report are that authentic information was received that Swiss Airline Cargo Van No, KCM-2894 would smuggle imitation jewellery, etc., from the Freight Gate of the Customs at the Karachi Airport. In pursuance of this information complainant M. Taher All of the Customs Special Checking Squad arranged a clandestine surveillance at the Freight Gate, which succeeded in intercepting the aforesaid van at 2-0 a. In. On 28-12-77. On search in presence of the mashirs the Customs Officers recovered eight mail bags which were examined and it was found that two bags bearing no marks of number contained a suit-case each bearing Baggage Tag No, SR307/238052A and SR238053L. On examination of the contents of the suit-cases a huge quantity of imitation jewellery was found, which being contraband were seized. The said suit-cases were weighed and found to be 511 Lbs. The occupants of the van, namely, S. H. El-Edroos and M. S. A. Nazkani (applicants in Special Criminal Bail Application No, 4 of 1978) were arrested. The F. I. R. Was then lodged and further investigation was taken in hand. Subsequently the investigation revealed that passanger Ayaz son of All Mohammad (applicant in Special Criminal Bail Application No, 6 of 1978) had brought the seized imitation jewellery from Hong Kong. Accordingly the last-mentioned accused was arrested on 30-12-77. It was further disclosed that the payment in respect of excess baggage had been made on the ticket of the passenger and a Tanzanian Passport was secured.
3. ' All the three applicants have been sent up to stand their trial under section 156(1)(8) of the Customs Act.
4. ' The applicants' prayer for bail was rejected by the learned Special Judge (Customs & Taxation), Karachi by his order dated 23-1-78. The applicants have therefore, approached this Court for bail.
5. ' Mr. Kaikobad, Advocate for applicant M. S. A. Nazkani, in support of the bail application contended that at this stage the applicant need only show that from the evidence collected by the prosecution there appears no reasonable ground for believing that the accused has been guilty of the offence alleged. In this behalf counsel placed reliance on Abdul Malik v. State (1) wherein Sajjad Ahmad Jan, J. (as he then was) enunciated the basic principles for determination the question whether in a non-bailable offence, the accused is entitled to bail or not. It was observed that bail should never be withheld as a punishment and that orders on bail applications should not be considered as routine orders. Elucidating the expression "reasonable grounds". As it occurs in section 497, Cr. P. C., the learned Judge observed that it is an expression which connotes that the grounds must be such as would appeal to a reasonable man for connecting the accused with the crime with which he is charged. If such grounds exist tending to connect the accused with the crime, bail should be refused, without the need to go into a deeper appreciation of merits of those grounds and the evidence on which they are rested, which functions are to be assumed at the trial stage. Next follows the important observation in the following words : "However, if it is found that the charge is groundless, i. e., to say unsupported by any evidence or instead of the grounds being reasonable, their absurdity stands exposed on a plain view, or the charge on its face value is reduced to a minor one which is not punishable with death or transportation for life, as for example where it is a case of accidental and unintended death caused by simple hurt, the limitation on the Court's discretion is removed which must then be freely exercised in favour of the grant of bail."
6. ' Learned counsel contended that mere recovery of the contraband goods from the vehicle occupied by his client who is an employee of the Swissair Company alongwith another employee is by itself not sufficient to connect {{FOOT NOTE}}
(1) PLD 1968 SC 349 {{FOOT NOTE}} (Zoffar Hussain Mirza, J) the two accused with the crime. He urged that the fact that the two occupants were on duty in connection with Swissair Flight from which the bags were off-loaded is a circumstance tending to show that their presence in the vehicle could be consistent with their innocence and without their knowledge that the bags loaded on the vehicle contained the offending goods. In these circumstances it was vehemently contended that the explanation of the two accused and the evidence of the prosecution has yet to be sifted to bring home the offence to the accused. At any rate, counsel further went on to argue, there exist reasonable grounds for further enquiry to ascertain the guilt of the accused. Mr. Ata-ur-Rehman, learned counsel for applicant S. H. El-Edroos adopted the arguments of Mr. Kaikobad and submitted that his client was driving the vehicle. It was urged that the goods are off-loaded by the loaders from the aircraft and therefore, the prosecution must show that the two accused had come into contact with the offending goods to fix responsibility upon them.
7. ' Mr. A. M. Lakho, learned State Counsel resisted the application and contended that the recovery of the offending goods not being disputed, the question whether the possession of the goods was not conscious or accidental is a matter of appraisal of evidence, which is the function of the trial Court.
8. Counsel emphatically contended that the two accused had managed and. Contrived to substitute two of the genuine mail bags with the bags containing the smuggled goods which is indicative of preconcert and mens rea for the commission of the offence. In this connection counsel submitted that there is evidence to show that there were eight mail bags destined for Karachi, but only six of the genuine mail bags were off-loaded and in place of the remaining two, bags similar to mail bags were kept concealed under the genuine mail bags in the vehicle. He further submitted that the two officials of the Air Company were on duty and had the knowledge that the baggage unloaded from the aircraft has to pass through the Customs and cannot be passed through the Freight Gate from which only the mail bags could pass without Customs checking. He pointed out that these facts are established from the Flight Cargo Manifest which shows that the two mail bags were short landed and according to the counsel baggage and cargo was to be off-loaded from the aircraft only after checking with the manifest by the airline officials. It would, therefore, seem that baggage is sorted out and separated from the mail bags at the tarmac for transport to different destinations.
9. ' I have carefully considered the arguments of the counsel. Clearly as laid down by the Supreme Court the question of bail is to be considered in a narrow compass in order to determine whether reasonable grounds exist tending to connect the accused with the crime without going into a deeper appreciation of the merits of such grounds or of the evidence on which they rest. In a later case reported as Nisar Ahmad v. State (1) Sajjad Ahmad, J. Observed at the stage of bail it is not possible to undertake full appraisal of evidence and the Courts should not be invited to do that, as it would lead to prejudging the material issues in the case, while deciding the bail application. The Courts have only to look at the material placed before them by the prosecution, to see whether some tengible evidence is available against the accused, which if left unrebutted may lead to the inference of guilt. {{FOOT NOTE}}
(1) PLD 1971 SC 174 {{FOOT NOTE}} In the light of the aforesaid principles it would be appreciated that the prosecution has in its possession the evidence that the smuggled goods were recovered from the vehicle driven by applicant S. H. EI-Edroos while the other applicant M. S. A. Nazkani was alongwith him. Both officials were on duty in connection with the off-loading of baggage and mail from the flight in question.
10. The other evidence mentioned by the learned State Counsel also indicates that for the present there are reasonable grounds for believing that the aforesaid accused have committed the offence. Mr. Kaikobad placed on record a certificate issued by the Station Manage of the Swissair certifying that Mr. M. S. A. Nazkani, Senior Agent was detailed to off-load cargo from Compartment No, 1 only and that the baggage an mail which was off-loaded from Compartment No, 4 was handled b Mr. S. M. El-Edroos. This certificate seems to have been produced in an attempt to show that one of the two officers only was concerned with the off-loading of the mail bags. But this is a matter of appreciation o evidence which as laid down, is the function of the trial Court. For the present the prosecution has evidence that the two suit-cases were wrapped up in bags disguised as mail bags but were bearing passenger tags and were intercepted while being passed through the Freight Gate. These bags wer opened in presence of the Station Manager who has himself certified in writing that they looked like mail bags with passenger tags and were stopped at the Freight Gate because it was not intended for passanger bags. The two accused are therefore, clearly not entitled to bail.
11. As regards the third accused Ayaz the only evidence pointed out against him is that excess baggage was booked on his ticket at Hong Kong for Karachi. Learned State Counsel however, conceded that the counterfoils of the two tags attached to offending two bags were not secured from the possession of this accused who was arrested on the third day of the offence. Mr. M. H.
12. Shah contended that since the Airline Officials have been implicated in this offence the possibility of a fraudulent use of the ticket number of this accused cannot be ruled out. He also strongly urged that the prosecution has no evidence at all to connect this accused with the crime. Thus in the case of applicant Ayaz there appear to be reasonable grounds for further enquiry into his guilt.
13. ' In the result, the request for bail for the two applicants, namely, S. H. EI-Edroos and M. S. A. Nazkani is hereby refused and their applications dismissed. Applicant Ayaz shall be released on bail in the sum of Rs, 20,000 with one surety and P. R.. In the like amount to the satisfaction of the trial Court.
14. Before parting with the case, however, I would order that steps be taken to complete the trial at an early date.