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Criminal Appeal No. 59 in Petition for Special Leave to Appeal No. K‑55 of 1975, decided on 4th November 1975.
(On appeal from an order of the High Court of Sind 8t Baluchistan made on the 26th of September 1975, in Criminal Bail Application No. 822 1975).
Criminal Procedure Code (V of 1898)‑.‑
‑‑ Ss. 497 & 498 read with Customs Act (IV of 1969), S. 156, items (8) & (89)‑‑Bail‑Customs authorities, as appearing from notice issued by them, not invoking heat; (8).Involving sentence of 10 years' R I.‑‑View, on present record, possible of offence falling under item (89) punish able with only 6 years' R. I.‑Appellants in custody for some months without any prosecution evidence having been recorded‑Appellants released on bail.‑‑',Bail).
Musafar Hassan, Advocate‑on‑Record for Appellants.
Usman Ghani Rashid. Asstt. Advocate‑General, Sind. assisted by Abul Khair Ansari, Advocate, and instructed by Noor Ahmed Noori, Advocate‑on -Record for the State.
Date of hearing : 4th November 1975.
.‑After hearing the learned counsel for the petitioners and the learned Assistant Advocate‑General, Sind, .for the State, we have divided to convert this petition into an appeal.
On 27‑8‑75, the appellants were intercepted while carrying betel nuts and textile goods in a truck on the Super Highway between Hyderabad and Karachi. An F. I. R: was registered against them the next day under items (8) and (89) in the Schedule to 'section 156 of the Customs Act, 1969. Their application for bail was rejected by the learned Special Judge (Customs and Taxation), Karachi, by his order dated 13‑9‑75. 7 hey went up to the High Court but their prayer for bail was again rejected by a learned Judge by his order dated 26‑9‑1975.
It is contended on behalf of the appellants that the learned Judge in the High Court was influenced by the fact that the case was fixed for the recording of prosecution evidence on the 22nd of October 1975, and an assurance was given by the State that on that date all the prosecution witnesses would be examined, but unfortunately no evidence was recorded on that date and the case was adjourned to 5‑11‑75. It is next submitted that in any case the offence alleged against the appellants does not fall under item (8) of section 156 but only under item (89), and in support of this submission the learned counsel has drawn our attention to a notice issued by the Customs authorities to the appellants to show cause against the levying of a penalty under the said item.
We do not think it necessary or appropriate to express any considered opinion at this stage as to the nature of the offence disclosed by the facts alleged in the F. I. R., but it does appear from the notice issued by the Customs authorities that they are not invoking item (8) of section 156 of the Customs Act which involves a penalty of ten years rigorous imprison ment. On the present record, it in possible to take the view that the offence alleged against the petitioners might fall under item (89) of the said section, which offence is punishable with only six years' rigorous imprisonment.
We also find that the appellants have been in custody since the 27th of August 1975, without any prosecution evidence having been recorded so far.
In the circumstances, we would accept this appeal and show bail to the appellants in the sum of Rs. 10,000 with two sureties in each case to the satisfaction of the trial Court.
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