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Petition for Special Leave to Appeal No. 247 of 1967, decided on 2nd October 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 18th August 1967, in Criminal Bail Application No. 226 of 1967).

S. 497‑Bail‑Argument that general grounds of seriousness of the menace of smuggling, etc. should not be allowed to prevail against general rule that a person charged with offence not involving sentence of death or transportation for life should, unless there are strong grounds for belief in his guilt, be allowed bail ‑ Held, not without force --Leave to appeal granted and bail allowed ‑ Constitution of Pakistan (1962), Art. 58(3).

Tufail Ali A. Rehman, Senior Advocate Supreme Court (Abdul Khaliq, Advocate Supreme Court with him) instructed by Hyder Bakhsh, Attorney for Petitioner.

Nemo for the State.

Date of hearing : 2nd October 1967.

‑The petitioner Wali Muhammad is one of a number of persons against whom a final challan has been filed on charges connected with the smuggling into Pakistan of a large quantity of gold valued at about one crore of rupees. The offence is punishable with six years' rigorous imprisonment, at a maximum. The High Court order considers the allegations, and accepting the proposition that ordinarily bail should be granted in cases of offences not punishable with death or transportation for life, holds that there are "exceptional circumstances for not releasing the applicant on bail" and accordingly refuses bail, but leaves the question open for re‑consideration "after a final challan has been presented and same evidence has been recorded".

Leave to appeal against this order is sought, and Mr. Tufail Ali points out that (a) a final challan has been presented and (b) several of the other accused persons have been granted bail.

It appears from the interim challan‑

(1) That the first mention of Wali Muhammad was made in some secret information that was brought to the Custom Authorities; .

(2) that from a jeep which was pursued at night (2 a.m.) by a Customs car, in the direction of a seaside village, Wali Muhammad and one Bachayo jumped out and disappeared in the darkness;

(3) that the jeep is said to belong to Wali Muhammad:

(4) that enquiries made from fishermen and others led to the recovery of large quantities of gold from the sea‑bed at different places, about 3 miles from the shore;

(5) that a further quantity of gold was found concealed in some bushes in "the area"; and

(6) that a certain number of persons from among those arrested have made confessions implicating Wali Muhammad.

On the strength of these circumstances, the allegation is made that Wali Muhammad "is the main person who had made all the arrangements through his men" to smuggle in the gold "through his launch kastoori", and had also "made all the arrangements of receiving the gold from the launch" and concealing it in the country.

The final challan refers to further circumstances, viz.:

(1) certain comings and goings at Wali Muhammad's houses in Karachi about the 24th‑26th May 1967

(2) that there was transfer of gold from a launch to a fishing boat in a creek, on the 26th May, which was followed by a fight with a group in another boat leading to the murder of one Khamiso, and on this account, the gold was dumped in the sea; the fisherman involved had helped in locating the gold;

(3) that the dumped gold was interfered with on the 27th May and part of it was removed to other hiding places, which were also indicated; and

(4) that Wali Muhammad's visit to the jetty on the night of the 27th‑28th May was for the purpose of "making arrangements for divers to recover the gold from the sea‑bed".

It appears that five of the arrested accused persons have made confessional statements, but these do not include one Gulloo, who was arrested from the jeep that was stopped on the night of the 27th‑28th May. The evidentiary value of these confessions remains to be evaluated. Some 35 witnesses are cited for the prosecution, and it is evident that the proceedings are likely to be protracted. Wali Muhammad surrendered before the Sessions Court on the 28th June 1967, and was refused bail on tae 18th July by a Magistrate, on general grounds, e.g., "the anti- State and anti‑social activities alleged", and "the fact that smuggling was a heinous offence which was gaining acceleration and which needed to be checked with vigilance and firmness".

The argument is that the evidence to connect Wali Muhammad with the activities of the fishermen is not of a direct nature, excepting the allegation that he was identified while escaping from a jeep, at 2 a.m., presumably in the light from the headlamps of the pursuing car which was so far behind that the men could not be caught. The confessions of men who are themselves implicated much more directly remain to be evaluated, as evidence against Wali Muhammad. In these circumstances, the general grounds of the seriousness of the menace of smuggling, etc. should not be allowed to prevail against the general rule that a person on a charge of this kind, not involving a sentence of death or transportation for life, should be allowed bail, unless there be strong grounds, in the shape of evidence, for the belief that he is guilty.

The argument is not without force. We accordingly grant leave to appeal as prayed, and allow bail to the petitioner in the sum of rupees two lacs, with two sureties, each in the like sum, to the satisfaction of the District Magistrate.

It will be open to the prosecution authorities to move for re‑consideration of the order for ad interim bail, presenting before the Court all material in their possession, including the confes sional statements mentioned above.

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