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Special Criminal Bail No. 9 of 1982, decided on 13th April, 1982.

‑‑--Ss. 156 (1) (8) & 2‑Smuggling of watches‑Tags recovered from applicant without preparation of seizure memo‑Recovery witnesses not stating such fact in their statements‑Opportunity not given to applicant to declare goods‑Case against applicant could be only that of a carrier and not smuggler; applicant never involved before and in custody since six months‑Wrist watches not banned items but can be imported on payment of duty and value of goods not colossal‑Bail granted in circumstances.

Kh. Adeel Ahmed for Applicant.

Mrs. Salima Nasiruddin for the State.

Date of hearing : 13th April, 1982

Investigating Officer is present with the relevant record. Prosecution case against the applicant is that on the night between 314th March, 1982 he came to Karachi Airport as a passenger from Bangkok travelling by Japan Airlines. In the arrival lounge his movements were suspected as such he was concerned by Senior Preventive Officer Abdul Rashid, who interrogated him and in the result his ticket and tags were taken posses sion of. Three packages purporting to be belonging to the applicant were opened and examined in presence of mashirs. The contents were 795 wrist watches valued at Rs. 78,820 apart from other items which are not subject matter of allegations in the case. Applicant is being tried for offences under section 156 (1) (8) of the Customs Act which envisages smuggling into Pakistan of articles as defined in section 2 (s) .of the said Act.

Mr. Khwaja Adeel counsel for the applicant has raised a number of contentions. Firstly it is submitted by him that the tags were recovered from the applicant without preparation of seiznre memo. as such there is no evidence that the tags were really recovered from applicant excepting the statement of the Investigating Officer. Both mashirs Muhammad, Siddiq and Mashkoor who have witnessed the recovery of watches have not stated any thing in their statements with regard to the recovery of tags from the possession of the applicant by the Investigating Officer Secondly it is submitted that no opportunity was given to the applicat ion make declaration and had such opportunity been given probably the applicant would have declared the goods brought in by him the import of which if banned, would have been declared as confiscated and penalty would have been imposed there upon as provided under law.

Mrs. Salima Nasiruddin has pointed out that there is statement of the applicant recorded by the Investigation Officer in which he has admitted that out of the three bags, two were given to him by Kazi and Muhammad at Bangkok to be carried by him and the applicant obliged. It is submit ted by Mr. Khwaja Adeel that this statement attributed to the applicant is confessional in nature and since it is made to the Investigating Officer it is not admissible in evidence under section 162, Cr. P. C. and cannot be used against the applicant. It is further submitted by the learned counsel for the applicant that assuming without conceding that it is so, then at the most the case of the prosecution against the applicant would be that of a carrier and the case of a carrier stands on a different footing from that of a smuggler and he is entitled to bail as he is not likely to get maximum punishment as contemplated under the law. Reliance is placed by the learned counsel on the case of Lai Bux and others. v. State (1979 P. Cr. L J 915). It is further submitted by the learned counsel for the applicant has already remained in custody for six months and the investigation is over and challan has been presented in the Court. It is submitted that applicant has never been involved in any such case before and this is the first unfortunate incident. It is also submitted that wrist watches are no e banned items but can be imported subject to payment of duty and in any case value of watches brought in is not colossal. In these: circumstance as stated above I admit the applicant to bail in the sum of Rs. 50,000 with two sureties and P R in the like amount to the satisfaction of the trial Court.

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