* there must be some proof and not mere opinion in the shape of a statement. * ---Names of accused were not mentioned in F.I.R. nor description of their features or their stature was given---Accused had not been identified and their identification test took place two- months after incident---Alleged identification of accused was based on flashing of torch light which was a weak form of identification. * When material on record was not showing as to which accused caused fatal injury leaving room for consideration regarding common intention of other accused, such case called for further enquiry- * ---Assessment of evidence ---Principle---Deeper appreciation of record cannot be gone into at bail stage, but only its tentative Assessment is to be made just to find out as to whether the accused is, prima facie, connected with the commission of crime or not. * ---No final findings could be given regarding plea of alibi at bail stage, as same would require recording of evidence ---Tentative Assessment of such plea, could be made, if it was found that accused had succeeded in establishing an opposite version then the case of accused would become one of further inquiry and on that score, accused would become entitled to the concession of bail. * one of accused was shown as armed with dagger, while other with Kalashinikov---Injuries sustained by the complainant were blunt which could be the result of danda attributed to absconding accused---No role seemed of accused persons in causing blunt injuries---Had accused persons participated, there should have been a bullet injury or a lacerated wound. * it was still to be ascertained that as to whose shot hit the injured persons. * Bail could only be refused to an accused person, if sufficient material had been brought on record, showing reasonable ground to believe him guilty of an of fence punishable with death or imprisonment for life or imprisonment for ten years, while subsection (2) of S.497, Cr.P.C. created an exception to the prohibition contained in the said subsection, which provided that if no reasonable grounds existed for believing that accused had committed a non-bailable of fence, but there were sufficient grounds for further inquiry into his guilt, accused would be released on bail. * ---Allegation against accused was regarding theft of Rs.500,000, which did not appeal to one's mind for the reason that accused stayed at the same house with stolen amount which was implausible; because he could have easily sneaked out from the house after stealing the said amount---No reason being available for accused to stay in the said house after stealing huge amount. * ---At the first instance, Investigating of ficer was not competent to register a criminal case against accused persons under Ss. 295-A & 296, P.P.C. for the reason that it was clearly enumerated in S.196, Cr. P. C. that the cases which fell in the category of Ss. 295-A & 296, P.P.C. were to be registered on the complaint, either by Federal Government or Provincial Government and not by private individuals. * ---Assessment of evidence ---Principle---Principle that Court should refrain itself from deeper appreciation of evidence at bail stage is applicable to the cases in which direct evidence is available against the accused; but in the cases of circumstantial evidence only it is the duty of the Court to see whether sufficient' evidence is available with the prosecution to connect the accused with the commission of the of fence or not---Court for such conclusion may evaluate entire prosecution evidence even at bail stage and Court has to see whether the accused is entitled to bail or not. * ---Except statement of co-accused, no other evidence was available against accused-. * Deeper appreciation of evidence and law was not advisable at bail stage, however, the matter could not be decided in vacuum. * ---In case of cross-version it is to be seen at the time of trial as to which party was the aggressor and only tentative Assessment of evidence is to be made at bail stage.. * ---In the absence of any injury caused to the member of the police party, it could not be conclusively held that accused was involved in the encounter, otherwise the issue could be determined after the evidence was recorded---Accused was admitted to bail, in circumstances.. * Charas in question was found in the shape of five separate slabs/patties, but only one slab/patti was sent for the chemical analysis report---No expert opinion could be available regarding remaining four slabs/patties, as to whether those contained any narcotic substance or not---Since only one slab/patti of charas was separately sent for the chemical analysis report, which weighed one kilogram, the chemical report would be conclusive only to the extent of one kilogram of charas. * Provisions under S.426(1), Cr.P.C. are analogous to the one contained in S.497, Cr.P.C.; in both the cases the sentence or detention is to be suspended pending hearing of appeal/trial and the convict or the detenuc is be released on bail with only difference that in the former case the person is a convict who has been already found guilty while in the latte case he has been charged only to face trial and is still to be proved guilty---In absence of any guideline, it would be appropriate to follow the one provided under S.497, Cr.P.C. on the principle that where a statute lays down certain principles for doing some acts they may be taken as a guideline for doing something of the same nature which is in the discretion of the court. * ---Opinion of the Investigating of ficer, though was not binding on the court, but, if same was based on tangible material, as in the present case, it could not be lightly brushed aside and had to be considered---Record had revealed that opinion of Investigating of ficer, was that accused and his co-accused were not present at the place of occurrence and that there was possibility that complainant received injuries on account of fall-. * ---Accused was not named in F.I.R. and he was involved in the case on statement of co-accused which was not admissible in evidence. * Persons arrested from the spot were exonerated during investigation---Accused was arrested on the pointation of exonerated accused person who was neither cited as prosecution witness, nor accused was put to identification test---Contention of prosecution was that under S.51 of Control of Narcotic Substances Act, 1997, bail could not be granted to accused, as huge quantity of narcotic was recovered---Validity---Such contention of prosecution was without any weight---Quantity could be given importance only when the same was linked with accused by cogent evidence. * ---Mere fact that there could be another opinion of the matter than the one formed by the Court on the basis of tentative Assessment of the evidence , would not be a sufficient ground to cancel the bail,. * Only that bail could be cancelled by the High Court which had been granted by it applying wrong principles or in departure from settled law---As regards question of bail in the cases of persons facilitating the execution of shot or fatal injury, no hard and fast rule had been laid down---Each case of such accused had to be dealt with individually on its own merits in' the light of facts and circumstances. * it was clearly a case of further inquiry as Doctor had described injury on the person of injured to have been caused with a sharp-edged weapon and not with a firearm. * --Statement of the deceased recorded under S.161, Cr.P.C. would call for its determination as dying declaration at the time of trial and to go into it further and to explore the reason for such observation would amount to deeper Assessment of evidence , at bail stage, which might prejudice the case of either party-. * ---Gravity of of fence looked from the point of view of the quantum of amount embezzled, was not the sole determining factor for deciding bail plea. * Cross version---Both F.I.Rs. of rival parties were investigated together---Both versions stood challaned and had been sent up for trial before Trial Court was yet to be determined as to who had initiated the attack and which party was the aggressor which could be done only through Assessment of evidence by the Trial Court---Reasonable grounds existed for further enquiry in rival cases, accused was granted bail.. * ---Deep scrutiny or minute study of the evidence on record is neither permissible nor desirable at bail stage--Courts at the same time are not expected to make an order in vacuum,. * Contention that grant of bail application when almost all prosecution witnesses examined amounts to Assessment of evidence which may prejudice trial -Repelled. * Concession of Bail ought not to be withheld by way of premature punishment-. * s ome of the offences allegedly committed by the petitioners were Bailable and the remaining offences invoked in the F.I.R. did not attract the prohibitory claus e contained in s ubs ection (1) of s .497, Cr.P.C.---Inves tigation of the cas e had already been finalized and, thus , phys ical cus tody of the petitioners was not required at this s tage for the purpos e of inves tigation---Continued cus tody of the petitioners in jail in circums tances was not likely to s erve any beneficial purpos e at this juncture. * ---s ole injury attributed to accus ed in terms of F.I.R. was not only s hajah-i-Khafifah making the offence Bailable but even if Inves tigating officer found accus ed empty handed and s uch finding had not been varied, the ques tion of application of s . 452, P.P.C. would remain a moot point between two officers i.e. Inves tigating officer and Deputy s uperintendent of Police---Findings of Inves tigating officer and the fact that s ole injury attributed, attracted only Bailable offence, the pos s ibility of fals e involvement of accus ed could not be ruled out---Prearres t bail was allowed. * ---No allegation of forgery and nothing was to be recovered from accus ed---Offences under s s . 420 and 471, P.P.C. were Bailable whereas s s . 467 and 468, P.P.C. pertained to forgery, which is s ue required further inquiry s o far as guilt of accus ed was concerned---Bail was allowed. * ---Intention of accused to kill the complainant was not available in the case, particularly when after sustaining a bullet injury, complainant fell down and was entirety at the mercy of accused, but accused, despite having deadly weapons i.e. Kalashnikovs, ceased to repeat their act---Receipt of solitary firearm injury on the leg by the complainant, had indicated that accused had no intention to kill hint; otherwise they would have not shot on his leg---Firing had been attributed to three accused persons, while the complainant had sustained only one bullet injury on his leg---Prima facie, the applicability of S.324, P.P.C. was yet to be determined during course of the trial; and at best the case of accused seemed to be covered by provisions of Ss. 337-A, 337-D & 337-F of P.P.C. which otherwise, either did not fall within the prohibitory clause of S.497, Cr.P. C., or bailable in nature and some of the acts/of fences, even punishable with fine only. * doubt could be taken into consideration, even at bail stage-. * ---Benefit of doubt had to be given to accused even at bail stage and the same could not be refused to him as advance punishment. * Benefit of every doubt even at bail stage has to be given to accused.. * ---Accused was not nominated in the F.I.R., which was lodged after about 9 hours of the occurrence---Accused was the next door neighbour of the complainant/victim, who was student of 11th class; his omission to mention the name of accused in the F.I.R., had given rise to many questions; and the allegation against accused clearly needed further probe and inquiry. * ---Mashirnama of place of wardat, did not indicate any blood stained earth and no empties had been shown to have been recovered---Time of occurrence as recorded in medical report was different to one as stated in F.I.R.---Benefit of doubt could be extended to accused, even at bail stage---Accused being entitled, he was admitted, in circumstances. * Enmity neither would support nor dislodge, at least at the bail stage, case of any of the parties-. * Most important ingredient of the of fence of conspiracy was the agreement between two or more persons to do an illegal act---Conspiracy consisted not merely in the intention of two or more but in an agreement of two or more to do an unlawful act or to do a lawful act by unlawful means---Question of accused's involvement in of fence would be decided after trial while determination of his role was a matter of further inquiry---Complainant did not take any preventive measure after he came to know of the alleged conspiracy---Reasonable doubt as to participation of accused in /the crime and veracity of the prosecution case entitled accused to b it---Conspirator or abettor not present on the spot stood at a lower footing than the one present and instigating his companion to commit the crime---Accusation of conspiracy could lastly be set up where parties were inimically depressed, as false implication could not be ruled out in such cases. * Growing tendency of issuing cheques without arranging sufficient funds to honour the instrument with the intent to make some quick money by defrauding others, had destroyed the fibre of the society and created mistrust, not only in the business community, but in the entire society---Such was to be viewed seriously; it would thus be safe to conclude that in absence of initial presumption of innocence in favour of accused and availability of sufficient material in the form of dishonoured instrument to connect accused with the commission of of fence, grant of bail "as of rule" could, by no stretch of imagination, be termed to be in consonance with the principles laid down in case PLD 1995 SC 34 relied upon by the Trial Court while granting bail to accused-. * If reasonable case against an accused was made out under Suppression of Terrorist Activities (Special Courts) Act, 1975, Burden of proof would shift upon accused to disprove prosecution case---If accused was not able to discharge the onus of proof shifted upon him, he would not be entitled to bail, but if he discharged the shifted onus of proof , he would be entitled to bail. * ---Earlier bail application filed by accused was dismissed by the High Court with direction to the trial Court to conclude the trial of the case within shortest possible time, but not later than two months---Despite said direction of High Court, trial against accused had not commenced---Said delay could not be attributed to accused, because he had availed his legal right by submitting application for determination of his age; it was the duty of prosecution to get determined age of accused at investigation stage, but prima facie it appeared that prosecution had intentionally avoided getting the age of accused determined. * ---Four accused were male members of the same family, wherein one was stated to be present in the Military Unit on the date of occurrence; and he had been placed in column No.2 of the challan---Deceased sustained a single entry wound from a very close distance of 12 feet, which could be inflicted by a single accused---Presence of the complainant and son of deceased, who posed to be the eye-witness of the occurrence, was yet to be established at the trial ---Out of four accused, no body had been named for the effective firing---Complainant and son of deceased, in their statements before the Police did, not disclose the calibre of the weapon carried by accused party at the time of commission of of fence. * ---Accused was female and statutory period of six months mentioned in fourth proviso of S.497, Cr.P.C. had expired---Effort was made, even during the pendency of bail application for Conclusion of trial on the undertaking of counsel for the complainant, but the trial was pending---. * ---Accused had been declared a Juvenile, below 18 years of age---Act or omission of the accused mentioned in subsection (7)(a) of S.10 of Juvenile Justice System Ordinance, 2000 though spoke of an act or omission simpliciter, but every fair act or forced omission like making of an application for being declared juvenile, could not be termed a factor that caused delay in Conclusion of the trial ; and would render such person disentitle to bail---Such act or omission must be pregnant with mala fide on the part of accused/Juvenile of fender which was not present in the case of accused---Every of fence of commission of murder, could not automatically be attached heinousness, gruesome and brutality---Had it been the case, only the of fence should have been mentioned, but in the present case, the nature of of fence and the style of commission was made a condition to refuse the grant of bail which could not be said, at bail stage with certainty to be present in the of fence. * ---If the articles of such a huge amount had been stolen, a man of prudent mind could not wait for three months for lodging of F.I.R.-That aspect itself required further inquiry---It was no where mentioned in the F.I.R. that as to when and after how much time of occurrence, alleged confession was made by accused-. * ---No action had been taken against tax of ficials who abated and connived in the alleged tax fraud--First Information Report or interim challan 'did not mention about preparation of the mashirnamas at the spot, and associating two independent private witnesses as required under S.103, Cr.P.C.---Alleged of fence did not fall within the prohibitory clause of S.497, Cr.P.C. whereas punishment under S.33 of Sales Tax Act, 1990 was five years or fine or both, which could be determined after taking evidence and on Conclusion of the proceedings-. * ---Fair and expeditious trial was a recognized constitutional right of each accused---Delay of 3-1/2 years in Conclusion of the trial entitled accused to the concession of bail-. * ---Confession before police---Challan, filing of---At the time of murder, accused was abroad and only evidence against the accused was his Confession before police during custody--Validity---Confession made by accused person before police in its custody was inadmissible in evidence---Nothing was available on record to connect recovered cash with alleged offences---Investigation had already been finalized and challan was submitted in Court, thus physical custody of accused was not required for the purposes of investigation. * ---Alleged extra judicial Confession was a joint Confession and even alleged recoveries were joint recoveries, thus their evidentiary worth was next to nothing. * Accused having remained in Police custody for about 13 days, his Confession in Police custody was not voluntary---On the basis of defects in the Confession al statement; case of accused had become of further enquiry--Was still to be settled that whether the case would fall under S.382, P.P.C. or 381-A, P.P.C.---. * .---Joint extra-judicial Confession of accused and his co-accused had been made after two months of the occurrence during investigation in the presence of Police---Evidentiary value of such extra-judicial Confession was yet to be determined by Trial Court---Sister of the deceased in her private complaint regarding the alleged incident had given a different version than the one contained in the F.I.R.---Guilt of accused, thus, required further inquiry---. * ---Confession made by accused before the complainant police officer was inadmissible in evidence according to Article 38 of the Qanun-e-Shahadat, 1984---. * | * ---Accused, at the first instance refused to record the Confession al statement on application submitted by the Police to the court, Magistrate sent him to jail, but on the same day, accused was again produced before the Trial Court, which referred the case to the Magistrate for recording his Confession , who then recorded his Confession al statement. * Confession al statements of accused if believed to be true and correctly recorded, even then the same could not be made a basis for their conviction in the absence of any direct evidence against them on record---Concession of bail could not be withheld merely on the plea of heinousness of the offence, if the accused were otherwise entitled to grant of bail-. * Statement of one co-accused could not be used against other co-accused-Extra-judicial Confession was also considered a weak type of evidence---Dead body of deceased was not recovered---Prosecution witness before whom accused allegedly made extra judicial Confession , did not figure in the F.I.R.---Remotest chances of conviction of accused on the basis of extra judicial Confession. * ---Supplementary statement of complainant could not be considered as an integral part of the F.I.R. which contained the first hand information and no such qualification was attached with a subsequent or secondary statement of the complainant---Complainant had not explained or disclosed the source of his knowledge or belief qua the alleged involvement of the accused in the case. * Special Prosecutor had conceded that except for the Confession al statements of co-accused before the Investigating Officer, no evidence was available against accused---Article 38 of Qanun-e-Shahadat, 1984 provided that Confession al statement of an accused before an Investigating Officer, was inadmissible in evidence and same could not be used even against its maker not to talk of any other person. * ---Co-accused having run away, but accused remained sitting in the car, co-accused could be presumed to have the conscious knowledge of the contraband lying in the car---Conscious possession of accused had to be thrashed out at the time of trial, whether it had made out a case of further inquiry---Prosecution had yet to prove that accused was in any way linked with absconding co-accused---Direct conscious possession had to be shown at the time of trial by the prosecution---Direct link of accused with said crime as well as with co-accused, had also to be established by the prosecution at the time of trial. * Intrinsic value of the extra-judicial Confession and, last seen evidence recorded at a belated stage would also be considered at the trial---Guilt of accused at present was open to further inquiry and he was admitted to bail accordingly.. * ---No corroborative evidence was available except alleged Confession al statements of accused---Was yet to be determined at trial as to whether the retracted Confession s made by accused, were voluntary or not and it was further to be determined whether Confession was inculpatory or exculpatory--. * ---Earlier bail application filed by accused was dismissed by the High Court with direction to the Trial Court to conclude the trial of the case within shortest possible time, but not later than two months---Despite said direction of High Court, trial against accused had not commenced---Said delay could not be attributed to accused, because he had availed his legal right by submitting application for determination of his age; it was the duty of prosecution to get determined age of accused at investigation stage, but prima facie it appeared that prosecution had intentionally avoided getting the age of accused determined-. * --Accused could not justify their presence in the car carrying the contraband and failed to establish that they were not in conscious possession of the contraband---Presence of the accused in said car was sufficient to link theist with the recovery--. * ---Accused and co-accused belonged to different areas and were not related to each other---Possibility was that accused might have taken co-accused to their destination because his car was hired---Accused was not supposed to search the luggage of the passengers. * Record had shown that charas was not recovered from the direct custody of accused persons---Whether accused persons had knowledge of the presence of contrabands on the roof top of the bus; and for that purpose they had shared their knowledge, was a question which would be determined after recording of evidence---Mere presence of accused persons, as driver and cleaner of said bus, was not sufficient for holding accused persons responsible for trafficking the recovered contrabands. * ---Arrest of accused had been effected by Assistant Sub-Inspector of concerned Police Station, whereas it was specifically mentioned in S.21 of Control of Narcotic Substances Act , 1997 , that arrest without warrant would not be effected by a Police of ficer below the rank of Sub-Inspector----Narcotic s, as per contents of F.I.R. were concealed in the secret cavity i.e. Petrol tank; and the material collected by the prosecution, did not ipso fAct o show that accused had conscious knowledge, about the said concealment of Narcotic s---Accused was merely travelling in the car in question, without having the conscious knowledge of the Narcotic s; and without having any connection with the ownership of said car. * ---Investigating of ficer raided the store belonging to accused without obtaining search warrant under S.21 of Control of Narcotic Substances Act , 1997 ---Alleged recovery was neither made from the possession of accused nor on his pointation and was not effected in the presence of two respectable persons belonging to the same locality as required under S.103, Cr.P.C.---. * Case of accused was that of further inquiry while considering the quantum of recovery, as the punishment provided for the of fence was always in commensurate with the quantum of recovery of contraband---Question as to whether accused would be liable to the maximum punishment provided for the of fence, was a question requiring further probe. * ---Accused was not present on the spot and he was not arrested when the alleged shopper in question containing charas was recovered by the Police from a public road; fAct that it belonged to accused establishing his involvement, was a case of further inquiry which would be determined at the trial. * 700 grams of charas was allegedly recovered from the possession of accused and he was liable to be tried under S.9(b) of Control of Narcotic Substances Act , 1997 , which did not fall within the prohibition contained in S.51 of Control of Norcotic Substances Act , 1997 ---Accused was behind the bars for the last four months and was not required by the Police for further investigation. * Section 497, Cr.P.C. not applicable to of fences under the Control of Narcotic Substances Act , 1997 -. * ---Section 497, Cr.P.C. not applicable to of fences under the Control of Narcotic Substances Act , 1997 ---Section 51 of the Control of Narcotic Substances Act , 1997 , has ousted the implication of S.497, Cr.P.C. from the cases relating to Narcotic s punishable with death--. * ---Witnesses were not taken from the public, though available, with no legal excuse-Mashirs were Police of ficials taken out of the same Police party---Seizing of ficer was the complainant, whereas the Mashirs were his subordinates---No expert report was available, either in the record or with the State Counsel, it could not be said, in circumstances that the sample (charas), if dispatched to the expert for test, had been found as Narcotic substance-. * ---When Chemical Examiner's report in affirmative, was not available in the case, the case would carry a status of further inquiry;. * Accused had been arrested from a thickly populated area, but no private person had been associated with the arrest and recovery proceedings---F.I.R. did not show that Police after recovery of "charas" from the accused had weighed the same---Recovered material had been sent to Chemical Examiner for examination after an unexplained delay of eleven days---"Charas" weighing 1050 grams had allegedly been recovered from the accused, which had marginally exceeded 1000 grams. * ---No private person was associated as witness while preparing first memo of arrest at the spot---Second memo had been prepared after four days after recovery of capsules containing heroin from the stomach of accused and that too without joining a private witness---No plausible explanation had been furnished by the prosecution in this regard---Perusal of F.I.R. and Chemical Examiner's report had shown a discrepancy in the weight of the recovered heroin. * Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused---Allegations against the accused needed further inquiry. * ---Where despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused, the allegations against him would need further inquiry---Quantity of 1150 grams of "charas" allegedly recovered front the accused had marginally exceeded the limit of 1000 grams, which was a border line in between clause (b) and clause (c) of S.9 of the Control of Narcotic Substances Act , 1997 , and this aspect also needed further probe to determine his guilt. * ---Complainant party despite receiving the alleged spy information, had failed to associate any private witness to attest the alleged recovery of charas; and no purchaser of the charas in question had been cited in the F.I.R., though accused was allegedly selling the charas---Case of accused, in circumstances, needed further inquiry---F.I.R. did not show as to how much pieces, out of recovered charas, were sent for chemical examination---Total quantity of alleged charas being 1100 grams, marginally exceeded to the borderline, falling between the of fence under S.9(b) & 9(c) of Control of Narcotic Substances Act , 1997. * Recovery of considerable sum of money from accused did not imply that the money was sale proceeds of charas--. * Chars weighing 1300 grams was recovered from accused, out of which 300 grams were referred for chemical examination---Report of Chemical Examiner showed that instead of 300 grams, laboratory received 270 grams of Chars---According to F.I.R., encounter had been shown between police and accused party but no inquiry was sustained by either party---Effect---Where recovery of substance did not exceed the limit between 900 grams to 1500 grams, the case being borderline between clauses (b) and of S. 9 of Control of Narcotic Substances Act , 1997 , accused should be admitted to bail. * Ouster of S.103, Cr.P.C.---Effect---Though private persons are not required to witness the recovery of Narcotic Substances as provided under the Control of Narcotic Substances Act , 1997 , yet the place of recovery and the time of recovery have to be kept in view to prevent false implication of innocent people, looking to the general conduct of police. * Sample of only one kilogram was sent for chemical examination out of four kilograms contraband, stated to have been recovered from accused---Accused, in circumstances, had been able to pass test of "fit case" as contemplated under S.51(2) of Control of Narcotic Substances Act , 1997 ; as well as test of subsection (2) of S.497, Cr.P.C. i.e. further inquiry. * ---Six separate pieces were recovered---Two pieces weighing about 50 grams were forwarded for Chemical Examination, which prima facie did not appear either to be random or representative sample---Question of imposition of maximum sentence, under circumstances, was to be determined during trial---Accused had already remained under custody for over 9 months. * Only evidence available on record regarding involvement of said co-accused was that principal accused had mentioned him as owner of heroin in his judicial confession, but it had been retrAct ed in his bail application---Case of accused, in circumstances had become arguable for the purpose of bail. * ---According to the Police 1030 grams Charas was recovered from accused---As quantity of the alleged recovered Charas marginally exceeded from 1000 grams, it was a border line case between clauses (b) & (c) of S.9 of Control of Narcotic Substances Act , 1997 where maximum punishment could not be awarded---. * Narcotic was recovered from the house of accused by raiding party when accused was not present in the house nor the raiding party had obtained permission from the Magistrate. * ---Accused was not apprehended at the spot despite the fAct that a number of Police of ficials along with vehicle were present and the only evidence against accused was statement of his co-accused, who was inimical to the accused--. * Charas" weighing 1100 grams in the shape of different pieces was allegedly recovered from the possession of accused, out of which 200 grams were separated for chemical analysis---F.I.R. did not disclose whether the sample was taken from each piece of Narcotic substance or not---Even the shape, size and number of pieces of the alleged contraband were not disclosed in the F.I.R.---Under the law even at bail stage amount of Narcotic taken as sample and not the entire recovered lot, would be taken into consideration. * ---1200 grams of charas was allegedly recovered from accused in the shape of pieces, while only 200 grams were taken out of the entire recovered material for the purpose of chemical analysis, but was not mentioned that as to whether the sample was taken from each piece or only from one of the pieces---No conclusive finding, in circumstances, could be recorded that all the pieces were of contraband Narcotic s. * Contrabands were not recovered directly from the possession of accused, rather the same were recovered from the cabin made on the root of the Bus---Question whether said cabin was in the exclusive use of the driver or for the passengers being a fAct ual controversy, could not be resolved in a bail petition. * ---Under the provisions of Control of Narcotic Substances (Government Analysis) Rules, 2001 sample had to be sent to the Laboratory within 72 hours---In the present case it was not discernible from the record that during 22 days of the recovery in whose possession the sample remained, which had made the case of accused one of further inquiry-. * ---Accused who was driving the vehicle from which incriminating substance was allegedly recovered, after seeing the Police made no effort to decamp from the scene of occurrence; while one of co-accused:-not only tried but succeeded in making his escape good from the spot---Question, whether accused could be . saddled with conscious possession of the incriminating substance recovered from the vehicle in cartons, was one calling for further inquiry-. * Accused was neither the owner of the car which was used to carry Narcotic s nor he was the driver thereof and he was merely travelling in the car without having the conscious knowledge or physical possession of the Narcotic s---Person being the driver of a private vehicle, was supposed to be aware of the material recovered from the secret cavities of such vehicle---Driver of a public transport vehicle was not supposed to be responsible for any material in possession of the casual passenger---Person travelling with the driver could not be automatically considered to be privy of the of fence of transportation of the Narcotic s, unless any link or nexus with the vehicle in question or driver or the recovered Narcotic s was established. * Accused was not present when his co-accused led to the recovery of charas from secret cavities of the truck in question---Accused was also not present when the disputed truck had been seized by the Police---Truck in question remained in the custody of Police for about five months---Only 156 kilograms charas had allegedly been recovered from that truck by the Police---Accused was wrongly described as owner of the truck in question, but it belonged to other person---No direct or circumstantial evidence was available in Support of self-assertion of Sub-Inspector of police that accused purchased the recovered charas from his co-accused---Self-assertion could not be the substitute of evidence. * ---No Act ion against beneficiaries i.e. exporters had been taken by Investigating Agency. * Alleged smuggled cloth had been seized by the authorities concerned---Was yet to be determined during the trial whether the stuff recovered from accused persons and other smuggled things fell within the definition of smuggled items; and that whether the provision of S.156(1)(89) of the Customs Act , 1969 , were attrAct ed---Even otherwise it also needed to be thrashed out as to whether accused were merely driver and cleaner respectively or had any proprietary interest in cloth in question-. * Charge against the accused was that he approved and sanctioned the payment of fake claims of rebate and in view of the fAct s of the cases, the question whether accused being privy to the crime had knowingly sanctioned the rebate claims in the fake transAct ions of export or he, while depending on his subordinate, approved the claims in good faith in accordance with the rules, required determination in the light of the documentary and oral evidence yet to he brought on record. * Allegation against accused was that he removed certain goods from the bonded warehouse without payment of duty and taxes---Accused had expressed his willingness to deposit 25% of the amount of duty and taxes, which according to him could be adjusted against his final liability, which he deposited vide challan-. * Principal accused in the case who was the importer of the consignment in question had been allowed bail by the Trial Court---Customs Authorities had not denied that the accused were not registered clearing agents, but their stance was that the accused had used permits of another Agent, who had neither been arrayed as an accused nor had been questioned during investigation. * ---Role of accused throughout was that of a Clearing Agent and at no stage he had been shown as main beneficiary---Accused was arrested on the statement of co-accused---Entire case rested upon documentary evidence, which had already been collected by the prosecution---Present was a financial crime based on documentary evidence---Importers and other government officials who connived with accused had not been arrested; on the contrary, efforts were being made to exonerate them from the charge. * ---Entire case being based on documentary evidence which had already been collected by the prosecution, there was no likelihood of tampering with the prosecution evidence at all---Trial court was yet to examine as to whether the accused had mis-declared the consignment or any violation had been made of the Rules. * ---Contraband foreign origin liquor was seized from the launch and owner of the launch was arrested---Considering the question of bail, general policy of law was to allow bail rather than to refuse it---Status of applicant/accused was conceded to be that of loader---. * ---No Act ion admittedly had been taken against any officers sanctioning the refund or the rebate, nor any Act ion for recovery of the amount had been initiated, because the bills of lading on the basis of which Act ion was taken were yet to be verified. * ---Accused contended; that he was ready to pay alleged evasion of Customs duty; that allegation as to claiming rebate after export was imaginary; that under S.32(A)(B) of Customs Act , 1969 , offence allegedly committed by accused was to be compounded if he paid amount of duty or tax evaded along with penalty; that under S.195-C of Customs Act , 1969 , accused was to apply to Central Board of Revenue for appointment of Alternative Dispute Resolution (ADR) Committee for resolution of dispute as to matter pertaining to Customs duty, liability, rebate, waiver, penalty or fine; that case of accused being of civil nature in view of Ss.32-(A)(B) & 195-C of Customs Act , 1969 ,. * "---In order to be "smuggled goods" the goods had to fall in one of the categories listed in sub-clauses (i) & (ii) of S.2(s) of Customs Act , 1969 ---To contend that imported cargo of "Black Tea" was a smuggled item, same had to be found notified item in a notification issued by Federal Government for purpose of later part of cl.(ii) of S.2(s) of Customs Act , 1969 to attrAct penal consequences of S.156(1)(8) of Customs Act , 1969 ---In absence of said notification, Act of accused was short of'smuggling'and penal consequences of S.156(8) of Customs Act , 1969 would not be attrAct ed and offence of accused at the most would fall under cls.(9), (14), (77) of S.156 of Customs Act ,. * Container involved in the case was admittedly intercepted at the National Highway near a Check Post and the goods were cleared by the Customs 4uthorities from the Customs Area of the port but none from the Customs Officials had been joined as co-accused in the case---Interim charge-sheet having been filed in the Court, accused was no more required for investigation. * ---Recovery of the alleged smuggled diamonds had already been effected and no further recovery was to be made from the accused---Passports of accused having already been seized and being in the custody of Trial Court, their abscondence had been adequately checked --. * Requirements of law as embodied in S.159 of the Customs Act , 1969 relating to search proceedings being mandatory, could not be treated as legal formalities as stated in the F.I.R. and the charge-sheet which was required to be specifically mentioned therein. * Genuineness or otherwise of the documents produced in defence was to be decided by Trial Court after having analysed the whole evidence and considering the defence plea in juxtaposition with prosecution case, till then the case against accused was of further inquiry as contemplated ,by S. 497(2), Cr.P.C:. * ---Carriers mostly the hired drivers, labourers, loaders etc., who usually fall as victims of circumstances, cannot be equated with professional carriers or agents of main smugglers because such carriers are neither less nor more than the Act ual smugglers.. 1995 PLD 328 KARACHI-HIGH-COURT-SINDH | Side Appellant : SHAHABUDDIN | Side Opponent : THE STATE | | | | | S. 497(2)---Customs Act (IV of 1969 ), S.156(1)(8)---Bail, grant of---One hundred tolas of gold was allegedly recovered from the rectum of accused after its detection when his body was X-rayed ---Challan had been submitted to the Court showing six prosecution witnesses, but none of them was a Doctor or X-ray technician which was a sufficient ground for further inquiry into the guilt of accused---Accused was admitted to bail in circumstances. | | | * ---Launch of the accused had been intercepted at 235 miles West of Karachi in the coastal area by the Custom and Maritime Security Agency staff---Territorial jurisdiction of the Court was yet to be determined and, therefore, the case against accused fell within the scope of further inquiry. * --Amount of certain taxes or duties allegedly not paid by the accused could be recovered from him under S.32(2) of the Customs Act , 1969 ---Entire record of the case being with the prosecution no tampering of the same by the accused was possible. * ---No baggage tags. similar to the one on the baggage were recovered from the accused---Accused was shown as a carrier in the challan and he was to be treated lightly as compared to the Act ual beneficiary. * ---Accused who had been shown to be merely an employee of the exporters (co-accused) and not the beneficiary was in jail for more than 17 months and was ailing--. * Accused. did not seem to have derived any advantage out of the amount of duty drawback and sales tax paid to the exporter. * Genuineness of the. documentary evidence on which the claim of accused being the lawful owner of the gold was based could be determined only at the trial. * ---No plausible explanation had been of fered by the prosecution regardin g 3 hours' Delay in lodgin g of F.I.R. ---Deliberations and consultations could not be ruled out, in circumstances---Clear allegation of an attempt to commit forcible Zin a had been made in the F.I.R. , but complain ant/ victim had not stated that her clothes were stripped, removed, torn, so without goin g deep in to the contents of F.I.R. , in gredients of Ss.376 & 354, P.P.C., were missin g, in the case. * F.I.R. havin g been lodged with in ordin ate and considerable Delay , possibility of lodgin g of F.I.R. after consultation and deliberation, could not be ruled out---Mere nomin ation of accused, in the F.I.R. in such circumstances, would not disentitle him to the relief of bail, if otherwise he was found entitled for concession of bail-. * Accused havin g remain ed in Police custody for about 13 days, his confession in Police custody was not voluntary---On the basis of defects in the confessional statement; case of accused had become of further enquiry--Was still to be settled that whether the case would fall under S.382, P.P.C. or 381-A, P.P.C. * ---F.I.R. was not in lin e with the statements of witnesses under S.161, Cr. P. C.. * Delay of two and half hours in lodgin g F.I.R. ; consultation and deliberation could not be ruled out--. * ---Unexplain ed Delay in lodgin g F.I.R. ---No recoveries, whatsoever, had been effected from accused---Complain ant party though approached the Police Station and got referral letter from the Police for medical treatment, but F.I.R. was not lodged. * ---Unexplain ed Delay in lodgin g F.I.R. ---No recoveries, whatsoever, had been effected from accused---Complain ant party though approached the Police Station and got referral letter from the Police for medical treatment, but F.I.R. was not lodged * ---Unexplain ed Delay in lodgin g F.I.R. ---No recoveries, whatsoever, had been effected from accused---Complain ant party though approached the Police Station and got referral letter from the Police for medical treatment, but F.I.R. was not lodged * ---State Counsel had contended that since accused had murdered two persons, they were hardened , Desperate and dangerous criminal s---Court could not lose sight of the fact that guilt or innocent of accused persons was yet to be proved at trial---No material had been pointed out by State Counsel establishing or at least pointing out allegations of similar or any other dastardly acts on the part of accused persons. * Though as may as 22 cases of similar nature had been registered against accused, but in none of said cases accused had been convicted---Accused, in circumstances, could not be treated as Desperate and hardened criminal ---All such facts had made the case of accused one of further inquiry---. * ---Mere involvement of accused in some other criminal cases without any conviction, could not render him as a Desperate or hardened criminal. * Delay in trial particularly when amounting to abuse of process of law or of Court, has always been recognized as a ground for grant of bail, before its incorporation in statute in the shape of third and fourth provisos to subsection (1) of section 497, Cr.P.C. as well as after their repeal, which had the effect of simply regulating discretion of the Court-. * ---In absence of any evidence against accused persons showing that accused were either previous convict, or habitual or hardened Desperate or dangerous criminal s or that offence had been committed by them in the name or on the pretext of honour, accused were granted post-arrest bail---Interim pre-arrest bail earlier granted to other accused, was confirmed.. * --Mere allegation that the accused were involved in attack on a police party, ipso facto, would not prove their guilt or brand them as hardened and Desperate criminal s without putting them to trial-. * Accused in the opinion of Trial Court, thus, had acted as a dangerous and hardened criminal , which amounted to deciding the guilt of accused without affording him the benefit of the trial---Every individual was innocent till he was proved guilty. * ---Trial Court refused the bail holding that accused had committed Harabah in furtherance of common intention and three other accomplices and accused could be easily labelled as hardened , Desperate and dangerous criminal --Validity---Held, to hold that an accused was hardened , Desperate and dangerous criminal , there had to be a past record or some record to show that the accused could be termed hardened , Desperate and dangerous criminal ---Only the observation that such type of incidents were increasing day by day could not by itself term any accused as hardened , Desperate and dangerous criminal. * ---Contention that the manner in which the accused was alleged to have killed two persons had shown, the accused as hardened , Desperate or dangerous criminal , was repelled as the phrase "hardened , Desperate or dangerous criminal " appearing in fourth proviso to S.497(l), Cr.P.C. had used the word "criminal " and not "person "---Trial being still in progress, the accused would be presumed to be innocent until he was convicted by the Court-. * ---In back drop of such pending and un-concluded cases, it was difficult to brand and dub accused as a hardened , Desperate or dangerous criminal so as to disallow him benefit of . * third proviso to S.497, Cr.P.C.--Accused, in circumstances, was allowed bail.. * Planning and methodology applied by accused did not warrant an inference of accused being a hardened , Desperate or dangerous criminal. * ---Mere fact of having been found in possession of 25 Kg. heroin powder while transporting same, should not by itself make accused to be affected by definition of hardened , Desperate or dangerous criminal s especially when accused were not previous convicts---Bail was granted to accused.. * ---Involvement of accused in other cases in the absence of independent material to hold them Desperate , dangerous and hardened , criminal s, could not deprive them of their right of bail earned by them on the ground of statutory delay in disposal of the case. * ---Role attributed to accused in the case being of Lalkara was not such as to dub him as a hardened , Desperate or dangerous criminal. * Only ground on which Trial Court came to the said conclusion was that first information report in case against accused showed that he had murdered his wife suspecting her to be a bad character--Murder on said ground being not uncommon, accused could not, on such ground, be considered to be Desperate , hardened and dangerous criminal so as to deprive him of right of bail under third proviso to S.497(1),. * to be taken into consideration, being his previous conduct; his reputation in society his dealing with fellow human beings and manner and methodology in which he had planned and executed episode on fateful day--On basis of such material, Court would be able to decide whether accused was "hardened , Desperate or dangerous criminal .. * Mala fide intention and deliberation on the part of the complainant party could not be ruled out due to Different versions. * ---Both the sides had received injuries at the hands of-each other and they had come forward with Different versions -. * Complainant had lodged F.I.R. and had filed two complaints, but had given, Different versions in the F.I.R. and complaints. * Grant or refusal of bail being matter of Discretion of the court, once the Discretion was exercised rightly, within the parameters prescribed by law and approved by superior courts, courts were reluctant to interfere with such Discretion ary order. * ---Under provisions of S.23(1) (a) of Drugs Act , 1976 export, import, manufAct ure for sale or selling any spurious Drugs were restricted---Mere possession of a spurious drug, had not been made punishable under S.27 Drugs Act , 1976 ---Sentence for offence under S.27 of Drugs Act , 1976 , was 3 years R.I., which fell outside the prohibitory clause of S.497, Cr. P. C. * Drug Inspector without referring the matter to the Provincial Quality Control Board was not competent under the law to lodge the complaint with the police since before registration of the case against accused such reference was necessary. * ---Prosecution had not been able to give a clue as to how the accused came in possession of allegedly stolen and unregistered Government medicines---Case against accused, thus, was made out of further inquiry-. * Accused who was not named in F.I.R. was alleged to have sold spurious drug unauthorisedly through receipt to co-accused who was not among dealers of disputed drug---Accused admittedly had been supplying other medicines to co-accused, thus it could not be said that receipt definite, related to disputed spurious drug. * --Some of bottles labelled as `Tincture Aurantii' while others unlabelled--Government Analyst reporting samples, not to be Tincture Aurentii and devoid of Drugs and were thus spurious--Accused having licence to manufAct ure Tincture Aurentii--No allegation against accused offering bottles for sale shown--Question whether bottles were ready for sale or still under manufAct uring process, required further inquiry. * ---Receiving money on the pretext of providing foreign employment---Conditional bail, grant of---Counsel for accused had submitted that son of accused had undertaken to make the payment of the arrears of the total amount to the affectees. * ---Challan had been submitted in the Court---Transaction between the parties seemed to be in respect of dispute of money, which statedly accused and his son had received from the complainant for sending him abroad along with work permit, but he failed to fulfil his commitment---No useful purpose would be served by keeping the accused in custody for an indefinite period. * Essential ingredients for application of S.3 of Prevention and Control of Human Trafficking Ordinance , 2002, .were coercion, kidnapping, abduction etc.---F.I.R. did not indicate any coercion or use of force---Mere promise or taking a person outside Pakistan to provide him employment abroad, would not constitute `human trafficking' within the meaning of S.3 of Prevention and Control of Human Trafficking Ordinance , 2002. * ---Record did not show as to how accused was aware of the fact that his sons were to be used as Jockeys in camel race when they were sent abroad---Nothing was on record that payment was made to accused prior to sending the minors abroad---Mother of minors was confined in Jail abroad. * ---Law officer had not been able to provide any plausible explanation as to why the Passports bearing disputed visa stickers were sent to the British High .Commission for verification after more than three months of the recovery---Passports in question remained in the custody of the FIA during the said period---No evidence was on record to even remotely suggest that accused had played any part or role in the theft of the visa stickers stolen en route from U.K. to the British Embassy in Moscow---No evidence was on record to suggest that accused had forged or fabricated said visa stickers---No instrument or article which could be used for the purpose of forgery was recovered from accused---Merely being in possession of documents purportedly forged, was no offence, unless it could be shown that same had been used as genuine. * No date or even the month of occurrence had been provided by the complainant while getting the case registered against accused---Complainant had failed to produce any receipt showing the payment of alleged amount to accused---Co-accused who was old and blind person was declared innocent---Background of animosity between complainant and accused existed---. * .---Section 6 of Passports Act, 1974, prescribed maximum sentence of three years, whereas S.17 of Emigration Ordinance , 1979, entailed maximum punishment of seven years-. * Allegation against the accused was, that he had acted as a sub-agent of the company which had sent the complainant abroad---Admittedly, no direct evidence was available on record to show that the accused was a sub-agent of the said company. * Accused had fulfilled his commitment of sending the complainant abroad to the best of his ability and competence completing all the legal formalities and, prima facie, he was not at fault regarding anything that had gone wrong with him there---. * showed allegation against accused was that he, along with other co-accused, had received money from complainant on the pretext of sending him abroad for employment, but data available on record was absolutely silent with regard to receiving of money by accused himself---Entire case was that said amount was received by co-accused and that amount was paid upon asking of accused. * Case of prosecution rested upon statements of three deportees, but all of them had been involved in the case as accused as they were fugitives from law; and their whereabouts were not known---During trial, the deportees never appeared before the Trial Court and though Trial Court had convicted and sentenced co-accused, but their sentences were suspended by High Court keeping in view non-appearance of deportees and Supreme Court had also upheld order of the High Court---. * ---Accused made offer that he was willing to deposit amount in question with the Trial Court and said amount would be payable to complainant only subject to the decision of the case--Police Officer concerned had confirmed that amount in question had been deposited , by accused in the Trial Court---. * Trial Court had declined bail to accused on the ground that he would attempt to proceed abroad by personating for some one else---Passport of accused was already lying with the Authorities---No circumstances were shown from which such intention of accused could be gathered---Trial Court, in circumstances was in error in declining bail to accused. * Accused, according to F.I.R., had only arranged for a ticket in the capacity of being the owner of the Travelling Agency of the Airline. * ---Entire case of prosecution against accused was that he had been instructing on telephone to the complainant party from abroad to make payment of disputed amount to his co-accused and in compliance thereof the amount was paid---No direct evidence was available against accused to show that he had received amount from complainant party. * Entire case of prosecution against accused was in the form of oral evidence and nothing was recovered from accused during investigation---One of prosecution witnesses was real maternal aunt of accused who had some family dispute with father of accused and allegedly at the behest of her husband false case had been concocted against the accused. * ---Allegation against .accused was that about 3/4 years ago he received amount from complainant on the pretext of sending his brother to London for employment; that accused allegedly took brother of complainant to South Africa and while leaving him there came back to Pakistan and in that way complainant had been defrauded by accused---Brother of complainant had not returned to Pakistan from South Africa where he travelled along with accused-. * ---No independent evidence had been collected by Investigating Agency in case apart from mere oral statements of complainant and his witnesses---Nothing had been recovered from possession of accused during investigation of the case---Background of a business dispute existed between parties arising out of dissolution of a partnership and in that backdrop, false implication of accused could not be ruled out of consideration---investigation of case had already been completed qua accused and an incomplete challan had already been submitted before Trial Court---Physical custody of accused was no longer required for purpose of investigation--. * ---Mere fact that the accused had procured affidavits of a couple of affected person out of about 35 persons, did not advance his case for bail. * that he had received amount along with Passport etc., from complainant on pretext of sending him abroad for employment, but that commitment was never honoured nor amount had been returned by accused to complainant---Record of case had revealed that a dispute of settlement of. account existed between the parties and a cheque issued by accused in favour of complainant was not honoured---In view of facts/data available on record possibility that dispute was of settlement of account between parties and that case had been got registered by twisting the facts, could not be ruled out-. * ---F.I.R. showed that complainant's brother had been taken by, accused with him to Iran where accused had disappeared leaving brother of complainant in lurch where after brother of complainant had returned to Pakistan on his own--Investigating Officer had stated that no documentary proof whatsoever was produced by complainant party before him regarding going of brother of complainant and accused to Iran or their returning to Pakistan---Investigating Officer, during investigation had stated that neither Identity Card nor Passport of brother of complainant had been produced by complainant party nor same were recovered from possession of accused---Case against accused in circumstances, was one of oral allegation by complainant party and a written denial by accused before Inquiry Officer. * ---According to F.I.R: accused had undertaken to send three persons abroad for purpose of employment---Said three persons had in fact gone abroad and then returned to Pakistan after some time---Nothing was on record of investigation to independently establish that it was the accused who had sent said three persons abroad or that said persons had been deported ---Iqrarnama relied upon by prosecution had mentioned seven other persons and not said three persons who according to F.I.R. were to be sent abroad by accused---Even promissory note relied upon by prosecution did not mention said three persons referred to in F.I.R.---Iqrarnama as well as promissory note appeared to be relevant to some other allegation against accused, but not to allegation contained in F.I.R. in the present case. * Only allegation against accused in the F.I.R. was that he alongwith co-accused had demanded alleged amount from complainant for getting her employment abroad---No allegation against accused that he actually had received any part of amount directly from the complainant--Complainant in her statement under S.161, Cr. P. C. had stated that accused had simply introduced her with co-accused---Was yet to be seen whether accused could be held liable for alleged offence or not. * Offence alleged against accused attracted Ss. 17 & 22 of Emigration Ordinance , 1979 and punishment prescribed under S.17 of the Ordinance was five years and under S.22 for a term which could extend to fourteen years---Alternative sentence of fine was provided in the said two provisions of Emigration Ordinance , 1979---Case against accused, in circumstances, would be out of prohibitory clause in S.497(1), Cr.P.C.---Accused, who was behind the bars for the last about nine months, was previous non-convict--Accused was entitled to grant of bail. * ---Evidence of prosecution witnesses though had revealed that accused had received disputed amount on different occasions on pretext of sending son of complainant abroad, but statements of said witnesses were absolutely silent with regard to time, date and year when amount in dispute was allegedly .paid to accused by complainant---Nothing was recovered from accused who was behind the bars for the last more than three months. * ---Case against the accused was a counterblast to the civil suit filed by them against the complainant---Nothing incriminating was recovered from the accused either in shape of cash amount or any other document--. * penalty under provisions of S.22 of Emigration Ordinance , 1979 was fourteen years imprisonment or fine---Falling of the offence out of embargo put by S. 497(1), Cr, p. C because of fine---Effect---Fine was no consideration under the proviso to S.497, Cr. P. C. even if the offence could be punished for fine alone, still the quantum of imprisonment would remain intact-. * -=-Accused being a job-seeker wanted to go to Saudi Arabia for a job--Seals/stamps on visa papers provided to accused by the agent were found to be forged---Mere payment of huge amount to the agent could not make the accused guilty of forgery which might have been committed by the agent without the knowledge of the accused. * Passport-holders stating to have handed over passports to co-accused who is absconding--No reasonable grounds, existed to gather from material on record that accused was connected with crime-. * --Procedure laid down in S.24(6) of Emigration Ordinance , was not complied with--Accused, held,-entitled to concession of bail.. * Contention on behalf of accused that no incriminating part was assigned to him in first information report not rebutted by counsel for State--Case against accused one of further inquiry--Bail granted.. * --Accused allegedly receiving huge money from different persons for sending them abroad but failing to do so--Accused under arrest for last about six months--No recovery of money or any document effected from him--Person of accused no longer required by police. * Accused receiving money from four persons on pretext of sending them to Denmark but after taking them to Maldeep Island, disappeared--Accused settling accounts with three out of four persons- Offence imputed to accused not falling under prohibitory clause-- Discretion, held, could be exercised in favour of accused. * While granting bail, trial Judge imposing condition of furnishing bank guarantee in said amount--Imposition of such condition, held, was illegal and unsustainable.. * --Accused contending that they were just labourers and business was being carried by absconding accused--Accused were behind bars since two months and investigation was not completed as sanction for prosecution was awaited-. * When two alternative punishments one of imprisonment and another of fine provided for any offence, trial Court would have unfettered discretion to resort to any punishment. *

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