ZOBIA JAMAL Versus BOARD OF INTERMEDIATE AND SECONDARY EDUCATION
ORDER
1. Applicant Jehangir Irmangan, who is detained in Crime No.DEC .44/92/I, dated 13-8-1992 under section 156(1)(8) of the Customs Act, 1969, has approached this Court for bail. First bail application moved on his behalf was rejected by the learned Special Judge (Customs and Taxation), Karachi on 5-12-1992 and Special Criminal Bail Application No.68 of 1992 moved before this Court was also rejected on 20-12-1992. After 5 witnesses out of 12 named in the challan were examined, applicant repeated bail application which too is rejected.
2. Allegations in brief against the applicant are that on 13-8-1992, on the basis of a credible information that applicant who was reaching from Peshawar by P.IA. Flight PK-327, and was bound for Zurich on 14-8-1992, would be carrying narcotics, he was intercepted at Domestic Arrival Lounge Terminal-I, Quaid-.e-Azam International Airport. On being questioned if he was carrying any narcotics, applicant answered in negative, whereafter his baggage was searched and 1.7 Kgs. of heroin of brown colour was recovered, which was cleverly concealed in suit-cases. He was arrested in presence of Mashirs (names not given in the F.I.R.) and thereafter applicant's personal search was taken but nothing incriminating except baggage tags were recovered. The applicant was then arrested and a notice under section 171 of Customs Act was served upon him. The Swiss Air-ticket recovered from the applicant confirmed that he was bound for Zurich.
3. It has been contended by Mr. Nawaz Khan Marwat, learned counsel for the applicant, that on 13-8-1992 the applicant came from Peshawar and had to stay for the night at Karachi and then leave for Zurich on the next day. Merely because heroin was recovered from his bags, it cannot be presumed that the same was intended to be smuggled to Zurich but it can also be presumed that the same was meant for disposal in Karachi. Unless there is anything substantial to show that applicant intended to smuggle narcotics out of Pakistan, mere recovery from his baggage will not come within the preview of section 2(s) of the Customs Act. It is also argued that applicant may have committed an offence under any other law, for instance under the Prohibition Order, 1979, but not under the Customs Act. It is then argued that such contention was rejected but when the second bail application was filed before the trial Court, Mashirs Waris and Tufail had been examined, both of whom did not support the prosecution case and were declared hostile. This according to the learned Advocate was a new circumstance which was made basis for second application. The learned Advocate further contended that in the interim challan, names of Najam Hameed and Jack Godds said to have been present when the baggage of applicant was searched were not mentioned, nor they were shown to be present according to the F.I.R. These two witnesses have been subsequently named in the final challan and probably, after it was realised that the two Mashirs procured by the complainant would not support. It is then argued that there may have been an intention on the part of applicant to smuggle out heroin but there was no attempt, as on the day of his arrest, there was nothing which might have led to an inference that the narcotics were to be taken out of Pakistan. In support of these contentions, and also that circumstances make applicant's case of further enquiry, learned Advocate referred to the following case-law: --
(a) Central Board of Revenue and another v. Khan Muhammad P L D 1986 SC 192,
(b) Abdul Ghaffar Khan v. The State 1991 M L D 1823,
(c) Hyder Khan and another v. The State 1991 P Cr. L J 1841,
(d) Nabo Jan v. The State 1981 P Cr. L J 951.
4. Mr. Farrukh Zia Shaikh, Advocate appearing for the State and assisted by the Investigating Officer Allah Wasayo has opposed the grant of bail and has argued that applicant is a known smuggler of narcotics and had links with one Miskeen Jan, another smuggler, who at the relevant time was in Pakistan and had, in fact, used the applicant as a carrier. It is further argued by him that attempt to smuggle narcotics was complete as the heroin recovered from applicant was transported by him from Peshawar up to Karachi and from this, his intention to further smuggle it out of Pakistan the next day is obviously established. He has referred to the cases of Abdul Ghaffar Khan v. The State 1991 M L D 1823 and Abdul Majid v. The State 1973SCMR108.
5. I have heard the argument of learned counsel and perused the entire record. The fact as brought on record that applicant was arrested at the arrival lounge while coming from Peshawar is not disputed. All that has been challenged is, if recovery of heroin from his suit-cases would lead to an inference that it was intended to be smuggled out of Pakistan the next day. It is also not disputed that applicant was to stay in Karachi for one night and thereafter to leave for Zurich the next day. It cannot be said with certainty that the narcotics so recovered would have been carried by applicant the next day also when he was booked for Zurich. Any inference which is beneficial to the accused can be drawn in favour of the accused and not in favour of the prosecution and benefit of any such inference has to be stretched in favour of the accused. The two witnesses Waris and Tufail called to act as Mashirs have been declared hostile and prosecution could not get any advantage out of their cross-examination. In the case of Central Board of Revenue and another v. Khan Muhammad P L D 1986 SC 192 the Honourable Supreme Court at page 199 held as under: --
6. ... As already discussed even if there is undoubted evidence of intention to commit the offence on the part of the offender and of preparation to carry out that intention the law does not make the person entertaining such intention or doing such acts of preparation culpable, so far as the offence of smuggling is concerned. Because there is always in such cases a possibility of change of mind or locus poenitentiae to give up the prosecution of the criminal intent beyond the stage of preparation. We, therefore, agree with the learned Judges of the High Court, that the mere act of boarding internal flight from Peshawar to Karachi was not an act of such an approximate nature as would amount to an attempt to smuggle, although it might constitute preparation to commit that offence. The act of boarding a flight at Peshawar which could constitute actual commission of the crime of smuggling if it were not interrupted. If any further acts had been done by the respondent to board a plane which would have taken him out of the country alongwith the contraband goods, there might have been a case of an attempt. But before he could embark upon any such act, he was intercepted at Peshawar, so that the act attempted by him does not satisfy the test that the doing of the same cannot reasonably be regarded as having any other purpose than the commission of the specific crime.
7. In the case of Abdul Ghaffar Khan v. The State 1991 M L D 1823 a learned Judge of this Court while discussing the connotation "preparation" and "attempt" held at page 1827 as under:--
8. "As a mater of law preparation for committing an offence is different from a attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order to prove that a person may be shown, first, to have had an intention to commit the offence, and secondly, to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which has led to difficulties because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted arson, however, clearly it may be proved that he intended to set fire to haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it."
9. In the case of Hyder Khan and another v. The State 1991 P Cr. L J 1841 a learned Judge of this Court while dealing with the appeal of the convict held that a finding has to be based on evidence and not merely on speculation and in discussing the evidence and arriving at a final conclusion, it should be borne in mind that in criminal cases as a rule, it is for the prosecution to prove its case beyond any reasonable doubt. It was further held that the finding of fact could not be recorded only because there was no specific challenge from the other side.
10. In the case of Nabo Jan v. The State 1981 P Cr. L J 951 a learned Judge of this Court while dealing with the case of an accused charged for offence under section 156(1)(8) of the Customs Act granted bail on facts that the petitioner was not leaving in Pakistan on account of closure of counter of airline and his briefing was refused. It was held that the effect of circumstances that petitioner was refused boarding on flight, required further enquiry of trial.
11. I would now like to deal with the case-law referred by learned counsel for the State. He has referred to the case of Abdul Ghaffar Khan v. The State 1991 M L D 18,23, which is also referred by applicant's learned Advocate and is reflected in the earlier part of this order.
12. In the case of Abdul Majid v. The State 1973 S C M R 108 the Honourable Supreme Court observed at page 111 as under: --+
13. "More specifically, an attempt to commit a crime consists of the following elements:--
(i) The intent to commit the crime.
(ii) Performance of some act towards the commission of the crime, and
(iii) Failure to consummate its commission on account of the circumstances beyond the control of the offender.
14. The test whether there has been an attempt to commit a crime, is a factual one by reference to the three ingredients set out above. In the present case, if we accept the evidence of Ramzan, whatever else may have been the intention of the appellant and his companion in displaying their weapons and asking the inmates to stand up, it could not have been that of committing robbery."
15. In view of the case-law referred to above and; the fact that the two Mashirs have turned hostile and there is nothing on record to conclusively show that recovered heroin was intended to be smuggled out of Pakistan on a day other than the one on which it was recovered from the baggage of the applicant, I am of the considered opinion that case of applicant may fall under any other law but not under the Customs Act. These observations are tentative in nature and are made for the purpose of deciding this bail application. The case of applicant, in my view, requires further enquiry and he is entitled to bail. Applicant shall be so released if he furnishes one surety in the sum of Rs.2,00,000 (Rupees two lacs) with P.R. bond in the like amount to the satisfaction of the learned trial Court.
16. N.H.Q./J-169/K Bail allowed.