SARMAD FAROOQUE DURRANI Versus THE STATE
ORDER
1. This order will dispose of Special Criminal Bail Application Nos. 71/86 and 72/86, as they arise out of the same case. The two applicants are involved with co‑accused in a case under clause (8) of section 156(1) of the Customs Act, 1969. Apart from the two applicants, the names of the other co‑accused are Rana Nazir Ahmad and Muhammad Ali. According to Mr. A . Rasheed Nizamani, learned counsel for the State, Rana Nazir Ahmad has recently been arrested but the fourth accused namely Muhammad Ali is still absconding. The date of offence is given in the F.I.R. as 10‑5‑1986, whereas F .I . R . is dated 26‑8‑1986. Interim challan was presented before the Special Court on 8‑9‑1986. The two applicants were arrested on 25‑8‑1986. Although the date of F . I . R . is given as 25‑8‑1986 but the certified copy of the F.I.R. shows that the complainant had signed the F.I.R. a day late i.e. on 26‑8‑1986. A bail application was moved by the two accused before the learned Special Judge but by order, dated 20‑9‑1986, the bail application has been rejected. Hence the present two bail applications. I have heard the learned counsel for the two accused and also the learned counsel appearing for State in these two bail applications.
2. It is submitted by the learned counsel for applicants that neither in the F.I.R. nor in the interim challan there is any allegation, specific or general, against the applicants except that the two applicants are involved in smuggling of 244.15 Kgs. of Charas. The prosecution case is that 20 wooden boxes were exported from Karachi to Jeddah but somehow they were not off loaded at Jeddah being excess and the wooden boxes came back to Karachi Port and on credible information that these boxes contained Charas, the boxes were opened which were supposed to contain sponge Chappals but on physical examination the Customs Authorities found 244.15 Kgs. of Charas hidden in the cavities of the wooden boxes.
3. The contention of the learned counsel for applicants is correct that there is no specific allegation against the two applicants in the F.I.R. or even in the interim challan, dated 8‑9‑1985 except to the effect that these two applicants are involved in smuggling of Charas. It is not mentioned anywhere in the F.I.R. or in the interim challan as to whether they were exporters, owners, carriers or were involved in any way with the packing of the Charas in the wooden boxes. From the order, dated 20‑9‑1986 of the learned Special Judge, it appears that the prosecution relied upon a statement under section 161, Cr.P.C. of one S. Abdul Waheed Baba, a Peer in some are (the area is not mentioned) that the packing of the Charas had taken place and that he had given full history about the 'Participation' of the two applicants in the commission of the offence. It is pertinent to point out here that in the interim challan the name of this Peer is not mentioned. The interim challan also does not show whether any notice under section 171 of the Customs Act, 1969, had been served upon the applicants.
4. As at this stage there is only a very vague and genera allegation against the two applicants in the F.I.R. and in the interim challan and the name of the aforesaid Peer does not even appear in the interim challan as one of the prosecution witnesses and that prima facie uptil now no notice under section 171 of the Customs Act, 1969, has been served upon the two applicants. In my view a case for bail has been made out by the two applicants.
5. Special Criminal Bail Applications Nos. 71/86 and 72/86 are granted and it is directed that the two applicants Sarmad Farooqui Durrani son of Amjad Ali Khan and Syed Nasir Hussain Zaidi son of late Saeedul Hussain Zaidi be released on bail on each of them furnishing one surety in the sum of Rs.50,000 each with P.R. bond) in the like amount to the satisfaction of the learned Special Judge.
6. M.Y.H./S‑140/K Bail granted.