Form No.

HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT
JUDICIAL DEPARTMENT

Case No. Crl. Misc No. 9211-B-2015

Mst. Ayyan Ali Versus The State etc.

Sr. No. of order/ Date of order/ Order with signature of Judge, and that of
Proceeding Proceeding parties or counsel, where necessary.

14-07-2015 M/s Sardar Muhammad Latif Khan Khosa, Sardar

Khurram Latif Khan Khosa, Aamer Chaudhary and Nasir
Ali Turabi Advocates for the petitioner.
Syed Zafar Abbas Deputy Attorney General for Pakistan
with Muhammad Saleem Inspector Customs.
Mr. Muhammad Amin Feroze Khan Advocate for the
complainant.

Through special order dated 8th of July, 2015, the Hon’ble

Chief Justice has been pleased to entrust this petition to this
Bench.
2. The petitioner has been unsuccessful before the two
forums including the Court of learned Judge, Special Court,
(Customs, Taxation and Anti-Smuggling) Rawalpindi/ICT and
the learned Special Appellate Court, constituted under the
Prevention of Smuggling Act for the Province of Punjab, as her
petitions for grant of post arrest bail were dismissed by the said
Courts vide orders dated 16.3.2015 and 29.6.2015,
respectively. Hence, through this petition the petitioner seeks
her enlargement on bail in case FIR No. 10, dated 14.3.2015,
registered under sections2(s), 156(1)8, 70, 157,178 of the
Customs Act, 1969 read with section 8 of the Foreign
Exchange Regulating Act, 1947, and section 3(1) of I.T.C,
1950, at police station I & P Branch, MCC, Islamabad.
3. The allegation against the petitioner is that on 14.3.2015,
she was apprehended at ASF Counter in the Rawal Lounge of
Crl. Misc. 9211-B-2015 2

Benazir Bhutto International Airport, Islamabad, when Waqas

ASI, of ASF, considering her suit-case as suspicious,
conducted search of the same and recovered therefrom US
Dollars 506800. He then handed her over to the Customs
officials who booked her in the said case.
4. It is the claim of the prosecution that the petitioner
attempted to smuggle out of Pakistan US Dollars beyond the
permissible limit.
5. Having heard the learned counsel for the parties, it is
observed that the petitioner was admittedly apprehended at the
ASF counter and by that time she had not appeared before the
Customs Counter, where she was supposed to make a correct
declaration of the contents of her baggage as provided under
Section 139 of the Customs Act, 1969. She had not yet
obtained boarding pass nor her baggage had been tagged to
be placed in the aeroplane. Since the stage of making a
declaration of the contents of her baggage had not yet arrived,
therefore, it is yet to be seen as to whether the petitioner in fact
intended to smuggle out of Pakistan the above said amount of
US Dollars. Particularly, keeping in view the plea of the
petitioner that the said amount of US dollars was the sale
proceeds of her five plots, situated in Karachi and that she was
to hand over the said amount to her brother, who was
scheduled to arrive at Benazir Bhutto International Airport
Islamabad from Dubai through the same Flight. This aspect of
the case, to our mind, calls for further probe into the guilt of the
petitioner.
6. The petitioner was arrested in this case on 14.3.2015 and
ever since then she is behind the bars. Being a female having
no previous criminal record deserves some leniency in view of
the Ist proviso to Section 497, Cr. P.C. It has been ruled by the
apex Court in the case titled “Mirza Farhan Ahmad vs. The
State” (2009 SCMR 304) that although the offence under
Crl. Misc. 9211-B-2015 3

section 156(1)(8) of the Customs Act, 1969 carries a sentence

of 14 years imprisonment, but the act of taking foreign currency
out of Pakistan beyond the prescribed limit was not immoral or
anti-social in nature, but was technical. The relevant portion of
the order of apex Court is reproduced below for the sake of
convenience:-
“Since it has not been controverted by the learned
Deputy Prosecutor General, Punjab, that the
petitioner is not a previous convict, he is ill and his
custody is no more required for the purpose of
investigation and though the offence punishable
under section 156(1)(8) carries a sentence of 14
years’ imprisonment yet, the act of taking out foreign
currency out of Pakistan beyond the prescribed limit
being not immoral or anti-social in nature rather
technical because as per clause (1) of the S.R.O in
question, the Government itself has allowed taking
out of Pakistan the amount upto US Dollars’ 10,000/-
or equivalent in other currencies, therefore, in our
view a case for grant of bail in favour of the
petitioner is made out. Accordingly, this petition is
converted into appeal and allowed. The appellant
shall be released on bail subject to his furnishing
surety in the sum of Rs. 1,00,000/- (one lac), with P.
R. bond in the like amount to the satisfaction of the
trial Court.”

7. The petitioner has since been remanded to judicial

custody as such she is no more required for the purpose of
investigation. Thus her further detention will not serve any
useful purpose.
8. In view of the above discussion, we are inclined to allow
this petition which is accordingly allowed. The petitioner is
admitted to bail subject to her furnishing bail bonds in the sum
of rupees five lacs with two sureties each in the like amount to
the satisfaction of the learned trial court.
(Muhammad Anwaarul Haq) (Arshad Mahmood Tabassum)
Judge Judge

APPROVED FOR REPORTING

Judge
Tahir