YOUCHAN ZHANG vs SPECIAL JUDGE CUSTOMS and 3 others
This revision petition challenges the order of the Special Judge Customs, Rawalpindi/ICT, which dismissed the petitioner's application for the superdari of her passport and other personal belongings seized during her personal search in connection with a criminal case under the Customs Act, 1969. The core legal question was whether a passport seized during a personal search, which is not instrumental to the commission of the alleged offense, can be withheld from the accused on supardari during an ongoing trial. The Islamabad High Court held that a passport is neither instrumental to the commission of the offense nor included in the recovery memo for the contraband, and holding it indefinitely restricts freedom of movement and risks rendering the foreign national an illegal immigrant. The Court ruled that personal documents not directly involved in the crime should be released on superdari against reliable surety. The key principle laid down is that articles not principally or essentially involved in the commission or proof of an alleged offense, particularly identity or travel documents like passports, ought not to be withheld from custody of the accused under sections 516-A and 523 of the Code of Criminal Procedure, 1898, provided adequate surety is furnished.
- Whether a passport seized during a personal search can be withheld as case property when it has no nexus with the commission of the alleged offense?
- Can the custody of a passport be granted on superdari to a foreign national facing trial under the Customs Act, 1969?
- What are the governing provisions under the Code of Criminal Procedure, 1898 for the custody and delivery of property seized by police or custom authorities during investigation?
- Section 8, Customs Act 1969
- Section 70, Customs Act 1969
- Section 178, Customs Act 1969
- Section 156(1), Customs Act 1969
- Section 51, Code of Criminal Procedure 1898
- Section 173, Code of Criminal Procedure 1898
- Section 516-A, Code of Criminal Procedure 1898
- Section 523, Code of Criminal Procedure 1898
ORDER
' MUHAMMAD ANWAR KHAN KASI, C J.--This revision petition is directed against the Order dated 01.4.2015 passed by learned Special Judge (Customs), Rawalpindi/ICT, whereby application of the petitioner for superdari of Passport No.G-32383625 and other belongings, taken into possession in connection with case FIR No.05, dated 04.2.2015, under Sections 8, 70, 178, 156(1) Customs Act, 1969, PS l&P Model Custom Collectorate Islamabad, was dismissed.
2. Learned counsel contends that while rejecting the application, learned Special Judge did not appreciate that passport is a title document, which needs to be returned and if same remains in custody of custom authorities, visa of the petitioner would expire and she will become an illegal immigrant.
3. It is further averred that passport was taken into custody under Section 51, Cr.P.C. During personal search and has no nexus with the case property, therefore, observations to this effect are contrary to material available on record. It is added that there is no rival claimant, as such she is entitled for getting the passport on supardari.
4. Learned Law Officer Customs, repelled the above submissions and stood behind the Order impugned. According to him, petitioner is a Chinese national from whose possession Passport No. G-32383625 was taken into custody by the custom authorities, having entries about her exits and entrances along with visa and same being case property as material evidence, cannot be given on supardari. He adds that petitioner is a foreign national and would flee out of the country without facing trial, if passport is released.
5. Heard and record perused.
6. Precisely, relevant facts are that on 04.02.2015 petitioner arrived at BBS International Airport, Islamabad through international Flight PK-1856. Custom authorities became suspicious in the wake of spy information due to which she was stopped and during her personal search, she was found in possession of 1375 KG of pork meat and 335 bottles of liquor, resultantly FIR in question was registered against her. It reflects from report under Section 173, Cr.P.C. That during interrogation she acknowledged ownership of banned meat and liquor and further disclosed that in connivance with her Pakistani husband i.e. Muhammad Saeed she often visits China to import contraband for selling them on profit to foreigners in Pakistan,
7. Contents of C.M. No. 412-M-15 reflect that learned trial Court is expeditiously proceeding with the trial and no apprehension with regard to delay in conclusion of trial exists.
8. Petitioner though is a foreign national, yet apprehension about her absconding without facing trial does not inspire confidence because it reveals from report under Section 173 Cr.P.C. That she is married to a Pakistani national. Moreover, the passport is prima facie neither instrumental to commission of alleged offense nor any offense has been committed concerning the same as it has not been included in Memo of Recovery (Fard Baraamdgee) along with liquor and Pork Meat rather added in Memo of Frisk (Fard Jama Talashi) lisiting her personal belongings like Mobile Phone purse etc. The Passport cannot be allowed to be retained on superficial basis of travel history record which can be seen through copy of passport. The procedure of law contained under Sections 516-A and 523 Cr.P.C. Applicable on either case does not allow rejection of the request for custody concerning an article which is not principally and essentially involved in commission, or proof of alleged offence, particularly where the same would limit the freedom of movement.
9. Even if it is admitted that passport and other belongings are case properties, they are not being returned to her without conditions. On the other hand they would be released on superdari against reliable surety and law is very clear on the point that superdar, after getting case property, is under legal obligation to produce it as and when required before a court of law.
10. In view of above the petition is accepted impugned order dated 01.04.2015 is set aside and the passport bearing No.G-32383625 is directed to be- delivered to her against solvent surety according to the satisfaction of learned Trial Court.
11. There are no details about other belongings, therefore, to the extent of remaining articles, she may file a fresh application with proper details which would be decided by learned Trial Court on its own merits. Crl. Misc No. 412-M-2015 ' Learned Counsel does not press this application for want of relevant record.
' Disposed of.