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Special Criminal Bail Application No. 5 of 1981, decided on 26th February, 1981.

--- S. 497 read with Customs Act (IV of 1969), S. 156 (1), (8)- Bail, grant of --- Petitioner, accused of attempting to smuggle Pakistani currency out of Pakistan-Petitioner not leaving Pakistan on account of closure of counter of airline and his briefing refused- Effect of circumstances that petitioner was refused boarding on night, held, requires further enquiry at trial so far as offence under S. 156 (1), (8) of Customs Act, is concerned-Petitioner allowed bail, in circumstance.

Gul Zaman Khan for Applicant.

Abul Khair Ansari for the State.

The applicant is facing trial for offence of smuggling under section 156(1), clause (8) of the Customs Act. 1969. The allegation of the prosecution is that the appellant was bound for Riyadh, Saudi Arabia by Saudi flight No. SV-065 on 25th January, 1981 when he was intercepted at 600 p. m. by Mr. Ghulam Hussain, S. P. O., Karachi Customs. The applicant is alleged to be carrying with him a small travelling bag and an attache case. He was questioned whether he had in his possession any currency or contraband articles and he replied in the negative. Thereupon his baggage and personal search was taken from which it is alleged that Pakistani currency of the value of Rs. 1,84,000 and 825 Saudi Rials were secured in presence of mashirs Mr. Farooq A. Khan and Mr. Shamuddin. The applicant was taken into custody and after the usual investigation has been sent up for trial before the Special Judge. The request of the applicant for release on bail has been rejected by the learned Special Judge, Customs, Karachi by order dated 22nd February, 1981.

The applicant denied the allegations of the prosecution and alleged "It the currency in question was recovered by the Customs from one Haji Shah Mohammad, an Afghan national who was present outside Karachi Airport, but that person was allowed to go and instead the applicant was implicated in this case. An affidavit of Shah Mohammad was filed in support of the bail application moved before the trial Court;

On behalf of the applicant my attention was drawn to the statement of one Mr. D. M. Chinoy, Lead Agent, Saudi Arabian Airline, Karachi Airport, who was examined by the Investigating Officer in the course of the investigation of this case. The said witness has stated that the applicant had approached the Saudi Arabian Airline counter at 6-00 p. m. on 25th January, 1981 for boarding the aforementioned flight, but as the counter had been closed, the briefing was refused and such endorsement was made on his ticket. The original ticket secured from the applicant has been produced by the learned counsel for the respondent before me which bears the endorsement of refusal on the first coupon. In view of this statement it is contended on behalf of the applicant that the case of attempt to smuggle the alleged contraband currency has not been made out against the applicant as he could not leave Pakistan on account of the closure of the flight and, therefore, he had not done the final act for the consummation of the offence. Counsel also argued that there is no evidence connecting the illicit goods with the applicant as the applicant disclaims the ownership thereof. Learned counsel for the respondent, on the other hand, sumbits that the case of the prosecution is supported by two independent witnesses in whose presence the currency was secured from the possession of the applicant.

I, however, find that the question as to the effect of the circumstances that the applicant was refused boarding on the flight would seem to require further enquiry at the trial so far as the offence under section 156(1) clause (8), Customs Act is concerned. The applicant, therefore, seems clearly to be entitled to bail.

In the result, I order that the applicant shall be released on his furnishing a bond in the sum of Rs. 20,000 with one surety and P. R. in the like amount to the satisfaction of the trial Court.

Bail allowed.

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