THERESIA AVILAGATEEN- Versus THE STATE

ORDER

1. Applicant Theresia alongwith five other co‑accused is being tried for offence under section 156(1)(8) read with section 178 of the Customs Act as per challan. It is the case of the Prosecution that on 9‑4‑1985 five persons were apprehended from the Car at Karachi Airport and on search 4 Kgs of Heroin powder was recovered. It is stated that Malik Muhammad Intezar was driving while Qamar Alvi was in the bucket seat and three other co‑accused namely, Moenne Moebarak, Theresia and Irfan Ahmad were on the back seat. One other co‑accused namely, Issac Mail was already in custody and at his pointation other co‑accused were arrested from the Criminal Trial Court has already granted bail to Qamar Alvi, Irfan Ahmed and Isaac Mall.

2. Bail plea of applicant Theresia is urged on the grounds, firstly, that she is a woman as such her case would be covered by exception contemplated under section 497(1), Cr.P.C. Second ground urged is that even as per Prosecution Case as the facts are, accused persons arrested from the Car had come to the Airport in order to Board the Plane for Lahore. There is no material or documents available with Prosecution to show that persons arrested were flying out of Pakistan. It is pointed out by Mr. Rasheed Nizami that so far applicant Theresia is concerned, she is a foreigner and is a Dutch national and further her ticket shows that she was to travel from Karachi to Amsterdam. Mr. Khawaja Naveed Ahmad has submitted that only ticket from Karachi to Lahore was confirmed and there was no confirmation in respect of other tickets. It is further submitted by Mr., Khawaja Naveed Ahmad, Advocate that the alleged facts of the prosecution case clearly indicate that offence would not fall under section 156(1)(89) of the Customs Act which relates to smuggling in or out of Pakistan but under section 156(1)(89) which relates to the possession of contraband goods for which punishment prescribed is imprisonment to the extent up to six years. On this premise it is argued that when the maximum punishment is up to six years then the offence would come out from prohibitory clause of section 497, Cr.P.C. which provides that the bail is not to be granted in cases which are punishable with death or imprisonment for life or imprisonment up to 10 years. It is further submitted that in such circumstances the case requires further enquiry as to which section will apply.

3. It is urged on behalf of applicant that even otherwise applicant has remained in custody for more than eight months and so far not much Progress is made in the conduct of trial and only examination‑in- chief of one witness has been recorded. For the facts and reasons stated above I admit applicant Theresia to bail in the sum of Rs.1,00,000 with two sureties and P.R. in the like amount to the satisfaction of the trial Court.

4. S.A. Bail granted.