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Bail Application No. 26 of 1985, decided on 20th May, 1985.

‑‑‑S. 497‑‑Customs Act (IV of 1969), S. 156(1) (8) (89)‑‑Bail, grant of‑‑Petitioner merely a carrier whereas main accused in actual possession of alleged smuggled gold, already granted bail‑‑Petitioner also allowed bail in circumstances.

Munir Muhammad and 3 others v. The State 1976 S C M R 145; Noorul and others v. The State 1976 S C M R 190.; Lal Bux and 2 others v. The State 1979 P Cr. L J 963 and Ghazi Shah etc. v. The State 1983 S C M R 727 ref.

Sami Ahmad for Applicant.

Mrs. Salima Nasiruddin for the State.

Applicant Syed Noor Hussain and his co‑accused Shamim Akhtar are facing trial for offence under section 2 read with clause 8 of section 156(1) of the Customs Act. According to the prosecution case applicant while driving Suzuki Van of Shaheen Services was intercepted at the Karachi Airport, Opposite Civil Aviation Dispensary on 4‑4‑1985 at 4‑30 p.m. There was one other person sitting in the Van, who succeeded in running away on seeing the Customs party. One black leather gents hand purse was recovered from the Van containing 150 slabs of gold of foreign make weighing in all 1500 tolas. Applicant Noor Hussain who was driving the Van was apprehended at the spot. During the investigation it was found that the name of other person who was in the Van was Shamim Akhtar who worked in P.I.A. as a Technician. Present applicant also worked in P.I.A. as Ramp Supervisor. It is further the case of the prosecution according to interim charge‑sheet that a passenger by name Owais Adil Khan had arrived from Dubai by Flight No. G.F. 2784 of Gulf Air Line at 3‑30 p.m. and the gold was brought by him and handed over to the applicant and co‑accused Shamim Akhtar for delivery in the city. Recovery was witnessed by Mashirs Muhammad Raees and Muhammad Fariq. After completion of other steps of investigation interim challan has been presented.

Bail plea is urged on the grounds that main co‑accused Shamim Akhtar, who ran away from the spot has been granted bail before arrest by the learned trial Court which was subsequently confirmed vide order dated 28‑4‑1985. It is submitted that the present applicant was just a Driver and he gave lift to Shamim Akhtar who was in possession of that bag from which the gold was recovered and on seeing the Customs party he decamped leaving bag in the Van. It is further submitted that the case of the present applicant would be at the most as a carrier and would not be at par with the case of co‑accused Shamim Akhtar or with that of Owais Adil Khan, who can be termed as beneficiaries. It is further submitted that the offence will fall under item 89 and not under item 8 of section 156(1) of the Customs Act because applicant was not a passenger and had not brought the gold, from abroad and he cannot be said to have smuggled into Pakistan the said gold. On the other hand item 89 provides for a situation in which the person is found to be in possession of smuggled articles without lawful excuse. Customs party apprehended applicant outside the airport and the applicant has given explanation that he had given lift to co‑accused Shamim Akhtar and had absolutely no knowledge as to what was carried by Shamim Akhtar in the bag which was left behind in the Van when the Van was stopped by the Customs party. It is further submitted that offence under item 89 is punishable with R.I. for six years as such it is outside the scope of prohibition contained in section 497, Cr.P.C.

In support of the bail plea reliance is placed on the case of Munir Muhammad and 3 others v. The State 1976 S C M R 145 in which it is held that if it was possible to take the view on the basis of record that offence alleged against the petitioner might fall under item (89)(1) of the Customs Act then bail should be granted. Another case cited in the same book is Noorul and others v. The State reported at page 190 in which bail was granted to the petitioners who were not real beneficiaries and were paid servants and as such their case was not at par with the main accused. The same view was adopted in the case of Lai Bux and 2 others v. The State reported in 1979 P Cr. L J 963. Another case cited is Ghazi Shah etc. v. The State reported in 1983 S C M R 727 in which bail has been granted to the petitioners) who were merely carriers particularly when Haji Muhammad Afzal who was the main accused was already granted bail by the High Court.

For the facts and reasons mentioned above, I admit applicant to bail in the sum of Rs. 1,00,000 with two sureties each and P.R. in the) like amount to the satisfaction of the Nazir of the High Court.

S. G. D.

Bail allowed.

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