MUHAMMAD SALEEM KHAN vs THE STATE

ORDER

' SYED MAHMOOD ALAM RIZVI, J.---This bail application is directed against the order, dated 15-12- 2008 passed by the learned Special Court-I (CNS), Karachi, in Spl. Case No,167 of 2008, whereby the bail application of the applicant was dismissed in Crime No, 41/2008 under section 6/9(c) of Control of Narcotic Substances Act, 1997, (hereinafter referred to as the 'Act' 1997'), registered at Police Station ANF Clifton, Karachi.

2. Precisely, the facts of the prosecution's case are that on 19-11-2008, in receipt of a secret information the raiding party apprehended four persons including the Applicant from the Departure Lounge of Karachi Airport. A passport, air-ticket, local and foreign currencies, mobile sims and mobile phone were secured from the possession of the accused Ayaz Ali Baig and heroin powder weighing about 9.5 Kg. Were recovered from the secret cavities of the suitcase of accused Ayaz Ali .That during interrogation the accused disclosed that he handed over a brown envelope containing cash of Rs,1,07,500 to co-accused Anwar Bux, a custom clearing agent and Muhammad Saleem Rajput, a Facilitation Assistant, Civil Aviation Authority, for clearing his suitcase with the help of co-accused Nisar Ali. The said cash was also secured from the possession of the co-accused Anwar Bux. A memo. Of arrest and recovery was prepared at the spot and the F.I.R. Was registered against all the accused persons.

3. The learned counsel for the applicant contended that the accused/applicant, an employee of Civil Aviation Authority, had no concern and link with the alleged recovery. Nothing incriminating was recovered from the Applicant. However, he had been implicated in this case on the statement of co-accused. He has further argued that no iota of evidence was available with the prosecution to connect the Applicant with the main accused though the applicant had remained in police custody, while the presence of the Applicant at the Departure Lounge was not exceptional.

4. Conversely, the learned Special Prosecutor, ANF, vehemently opposed the bail application and has urged that the Applicant had facilitated the main accused in clearance from the customs. He has further contended that, no doubt, nothing incriminating was recovered from the possession of the Applicant, nevertheless, a case under section 14, punishable under section 15 of the Act, 1997 was made out against the Applicant.

5. Heard both the learned counsel and perused the record very carefully.

6. It is the prosecution's case that after a secret information the ANF party apprehended the main accused, who was said to have been standing with the applicant and the other co-accused in the departure lounge of the airport. After going through all the record, no connection has been shown against the applicant with the main accused. May be the applicant was acquainted with the main accused or the co-accused and being an employee of Civil Aviation Authority he was standing with them. But the question regarding the clearing of the suit case from the customs did not arise, as the main accused was leaving the country and had to deposit the suitcase at the counter of the concerned airline only, required no customs clearance. Hence no, prima facie, case was made out against the applicant to connect him with the above case. The prosecution has failed to cite any witness to show that the applicant had conscious knowledge that the main accused was in possession of the contraband in his suitcase or the applicant tried to facilities him in any manner.

7. In view of the facts and circumstances, this Bail Application is converted into Miscellaneous Application under section 561-A, Cr.P.C., with the conscious knowledge that in very extraordinary circumstances -this Court can use its inherent jurisdiction and in the instant case the proceedings against the applicant would be futile as there is no likelihood of conviction of the applicant on the basis of material available with the prosecution. Therefore, the proceedings pending against the applicant in the above case are quashed. Te applicant be released from jail, if not required in any other case. However, at any stage of the case if the prosecution was able to collect incriminating material against the applicant they may file the supplementary challan in the trial Court without approaching to this Court.

8, These are the reasons for the short order, dated 9-1-2009.