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Criminal Miscellaneous Application No. 19 of 1983, decided on 25th March, 1984.

---S.497(5)--Customs Act (IV of 1969), Ss. 156(8) 8 156(89)--Bail, cancel lation of--Offence of smuggling--Trial Court while granting bail failing to note proviso to section 156(8), Customs Act,1969 according to which even an abettor also was equally responsible for smuggling--Grant of bail by trial Curt on ground that accused could not be convicted under section 156(8), Customs Act 1969 held, misconceived and order granting bail not sustainable.

---S.497/498--Customs Act (IV of 1969), S.156(8)--Bait, grant of--Accused persons remaining in jail for considerable time--Co-accused, real benefi ciaries of goods smuggled by them, already granted bail--Accused persons neither importers of goods nor beneficiaries thereof and only allegation against them abetement of offence committed by real beneficiaries Bail granted.

Ibrahim Memon, A.A.-G. for the State.

Raja Qureshi for Respondent No. 1.

Mir Nawaz Khan for Respondent No.2.

Dates of hearing: 16th February; 18th and 22nd March, 1984.

The State has filed the above application for cancellation of the bail granted to respondents Nos. 1 and 2 by the learned trial Court, vide its order dated 2nd July, 1983, on the facts and grounds mentioned in the above, petition.

The learned Additional Advocate-General appearing for the State at the outset submitted, that the learned trial Court failed to note, that even abetement of the offence of smuggling comes under section 156(8) of the Customs Act, 1969 and as such whether they are actually smugglers or not, have nothing to do with this legal position and therefore under this mistake learned trial Court granted bail to the respondents, on the assumptions that the offence committed by them would fall under section 156(89) of the Customs Act; 1969,. which is punishable with 6 years and on this ground alone the learned Additional Advocate-General submitted on merits the learned Additional Advocate-General submitted, that but for the abetement of these two respondents, the beneficiaries could not have been able to carry on smuggling in question and as such he opposes their bail application even on merits.

The learned Advocates appearing for respondents Nos. 1 and 2 on the other hand submitted, that no doubt the learned trial Court misread the provisions of section 156(8) of the Customs Act,1969 and therefore came to a conclusion, that the offence if any committed by the respondents would fall under section 156(8) of the Customs Act, 1969 and would be punishable with only 6 years and consequently granted bail on that basis but on merits the respondents who were not the beneficiaries of the goods in question are entitled to grant of bail, as III other co-accused persons, who were really beneficiaries of the goods in question have been granted bail, either by the learned trial Court or by this Court in Cr. Bail Application No. 24 of 1983 and on this ground alone the respondents are entitled to bail. The learned counsels further submitted, that the statement of the prosecution witnesses are such, that the case of the prosecution against the present respondents would require further inquiry, at the stage of trial.

I have carefully considered the above submissions made by the learned Advocates before me and have gone through the impugned order as well as F.I.R. and the order passed by my brother Ali Nawaz Budhani, J. in Cr. Bail Application No.24 of 1983 on 31st July, 1983 in respect of co-accused.

The grant of bail by the learned trial court on the ground that respondents could not be convicted under section 156 (8) is misconceived as the learned trial Court has failed to note the proviso to the said section, according to which even the abettor would be equally responsible for smuggling, if it could be proved that he abetted such smuggling. In view of this impugned order dated 2nd July, 1983 by which respondents were granted bail by the learned trial Court could be sustained. However, since learned counsels for the respondents requested for consideration of grant of bail to the present respondents on merits, in view of the fact, that the respondents have remained on bail for considerable time and on account of the fact, that other co-accused persons, who were really beneficiaries of the goods in question have already been granted bail by the learned trial Court and/or this Court, I have considered their sub missions on this account. It is admitted position, that the goods in question were neither imported by the respondents Nos. 1 and 2 nor they are the beneficiaries of the said goods and the only allegation against them is of alleged abetment of the offences committed by the real beneficiaries, I have carefully gone through the statements of the prosecution witnesses recorded under section 161, Cr.P.C. and have taken into consideration g also the fact, that the real beneficiaries of the goods in question have already been granted bail. In view of statements of the P.Ws so far produced before me, in my opinion case against respondents would require produced further inquiry at the stage of trial. Since other co-accused have also been granted bail, although they are the real beneficiaries of the' goods in question, it would be unfair to refuse bail to the present respondents on merits as the learned trial Court did not consider this aspect and furthermore as the respondents have remained on bail right from 2nd July, 1983.

Therefore while allowing the above application for cancellation of bail, vide order dated 2nd July, 1983, and cancelling the bail granted to respondents, by impugned order, I allow oral application of respondents for grant of bail on merits and direct that both the respondents be C released on bail on their furnishing sureties, in the sum of Rs.50,000 each, with P.R. Bonds in the like amount to the satisfaction of the learned trial Court, as beneficiaries of the goods in question, the other co-accused persons, have been already granted bail, on merits. any observations made by me on merits of the case are tentative and as such shall not be binding on the learned trial Court, while disposing of the above case on merits.

M.Y.H. Bail granted.

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