THE STATE vs ZAHID RASOOL
This matter concerns an application by the State seeking the cancellation of bail granted to the respondent by the Special Judge (Customs and Taxation), Karachi, in a case registered under the Customs Act, 1969. The respondent had initially been refused bail but subsequently secured release on humanitarian grounds upon a second application. The core legal question was whether the State could bypass the trial court and approach the High Court directly for bail cancellation, and whether humanitarian grounds constitute a valid basis for granting bail in such matters. The Court held that while the High Court and the Special Judge possess concurrent jurisdiction regarding bail cancellation, it is a desirable practice to first approach the court that granted the bail unless compelling circumstances exist to bypass it. Citing established precedents, the Court emphasized that the trial court should be the primary forum for such applications. Consequently, the High Court dismissed the State's application for cancellation of bail, directing the applicant to approach the trial court first if so advised.
- Is it procedurally required to approach the trial court for bail cancellation before moving the High Court when jurisdiction is concurrent?
- Does the existence of concurrent jurisdiction allow an applicant to bypass the lower court for bail cancellation without showing compelling circumstances?
- Can bail be granted solely on humanitarian grounds in a customs-related criminal case?
- Section 156(1)(8), Customs Act 1969
- Section 185-F, Customs Act 1969
- Section 497(5), Code of Criminal Procedure 1898
ORDER
Tolas were recovered. A case under clause (8) of subsection (1) of section 156 of the Customs Act, 1969, was accordingly registered against him. The respondent who was detained in the above crime applied for bail before learned Special Judge (Customs and Taxation), Karachi, but his prayer was refused vide order, dated 9-10-1988. After a few days the respondent repeated bail application before the trial Court and this time he was successful in securing his release on bail mainly on humanitarian grounds. The State has now approached this Court seeking cancellation of bail granted to respondent on 22-10-1988.
2. I have heard Mr. Abdul Sattar, learned counsel for applicant and Mr. Sohail Muzaffar, learned counsel for respondent.
3. The jurisdiction of the Special Judge (Customs and Taxation), and the Special Appellate Court in matter of cancellation of bail being concurrent, the objection taken by learned counsel for respondent about the expiry of period of limitation as provided under section 185-F of the Customs Act, 1969, for filing the present application for cancellation of bail, is wholly misconceived.
4. It is contended on behalf of applicant that no bail on ground of sympathy could be granted to an accused person as sentiment is a dangerous will-o'-the-wisp to take as a guide in the search for legal principles.
5. The learned counsel for respondent has on the other hand contended that the jurisdiction of the Special Judge (Customs and Taxation) and the Special Appellate Court, in matter of cancellation for bail being concurrent, recourse should have been taken to the Court of Special Judge (Customs and Taxation) Karachi, before approaching this Court for cancellation of bail. Although there is no hard and fast rule in this behalf, it is desirable that the lower Court should be first moved, unless there are compelling circumstances to bypass it. The cases B reported as Nazir v. Amir Din and another 1971 SCMR 637, Mirza Khan v. Lal Khan and another 1976 P Cr. L J 324 and Barkaat Ahmad v. Said Akbar and 2 others 1981 P Cr. L J 1208 are relevant on this point. In Mirza Khan v. Lal Khan and another, referred to above Aslam Riaz Hussain, J. (as he then was) observed as follows:-- "However, I feel that, as submitted by the learned counsel for the respondent, the petitioner should have first approached the learned Court which granted the bail, in view of the wording of section 497(5), Cr.P.C. And the observations made in Nazir v. Amir Din and another 1971 SCM R 637."
6. No reasons are assigned by the applicant to approach directly to this Court. In such a situation the application for cancellation of bail is dismissed. The applicant may approach the Court concerned, if so advised.
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