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Criminal Miscellaneous No.1872/B of 1982, decided on 31st July, 1982.

-- S.497/498-- Customs Act (IV of 1969), S.156(1) cis. 8 & 9--Bail- Smuggling--No evidence available to show that accused had smuggled liquor and prima facie cis. (8) and (9) of S. 156 attracted--Offence not falling within prohibitory clause--Bail granted.

Maqbool Elahi Malik for Petitioner. Abdul Fateh for the State.

This is an application for bail on behalf of Muhammad Arif petitioner in a case under section 156(1) (8/9) of the Customs Act and section 3/4 of the Prohibition (Enforcement of Hudood) Order, 1979 registered at Police Station Mochi Gate, Lahore vide F.I.R. No. 64, dated 27th June, 1982.

2. The prosecution case is that the petitioner was found in possession of 12 smuggled bottles of Indian liquor and he was arrested. Thereafter, he led to a store on the upper storey of the Pan Market wherein hi brother namely Asif alias Achhi was present, who on seeing the police ran away. The police recovered from that store 293 more bottles o' liquor which was taken into possession.

3. Learned counsel for the petitioner submits that no offence punishable under section 156(8/9) of the Customs Act has been made out and the offence under section 3/4 of the Prohibition (Enforcement of Hudood Order, 1979 , being not punishable with 10 years or more does not fall within the prohibitory clause. The learned State counsel has, however opposed this application on the ground that the petitioner was apprehended while taking away 12 bottles of liquor and thereafter on his information 293 more bottles were recovered from the store.

4. After hearing the learned counsel for the parties I find that there is no evidence that the petitioner had smuggled the bottles and as such prima facie clauses 8 and 9 of section 156 of the Custom Act is not applicable. As far the recovery of 293 bottles, I find that the store from where the bottles were recovered was not the exclusive possession of the petitioner because it is the case of the prosecution that these bottle were also in the possession of Asif co-accused who, in fact, was present in the store before the recovery. As far the recovery of 12 bottles the liquor, I am told by the learned State counsel that there is r evidence that these bottles were smuggled by him and that during the investigation it was found that he had purchased these bottles from la Khan Pathan and as such the offence if any, committed by the petitioner does not fall within the prohibitory clause.

5. Without making any expression lest it may prejudice the merits of case I admit the petitioner to bail in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the Assistant Commissioner, Lahore.

M.Y.H. Bail granted

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