ZARDULLAH KHAN Versus State
ORDER
ADNAN-UL-KARIM MEMON, J.--- The Applicant namely Zardullah Khan son of Shuja Alam Khan is seeking post arrest bail in FIR No.64/2013, registered at Police Station Anti-Narcotic Force-II, Muhammad Ali Society Gulshan-e-Iqbal Karachi, for offences punishable under Section 6 read with Section 9 (c), Control of Narcotic Substances Act, 1997.
2. Brief facts of the prosecution case are that on 03.12.2013 at about 1800 hours Inspector/SHO Tahir Ahmed Bhatti of Police Station Anti-Narcotics Force, Muhammad Ali Society, Gulshan-e-Iqbal Karachi lodged FIR against Applicant, that he received spy information that one Zardullah Khan son of Shuja Alam used the 'E" Form of M/s Farooq Enterprises, Karachi and smuggling huge quantity of heroin through container bearing No. MSKU-1599141 to Kampala (Uganda). On such information a raiding party was constituted headed by himself, Inspector Bin Yamin; Inspector Shiraz; HC Abdul Razzak; Saleem Ahmed; HC Ali Sher; PC Riaz Ahmed; Masood; PC Riaz Amjad; PC Meraj; PC Zia Mustafa and other ANF staff, under the supervision of AD Mashooq Ali Brohi, left Police Station ANF Gulshan-e-Iqbal, Karachi, as per Roznamcha Entry No.10 at 1600 hours, on 02.12.2013 in official vehicles duly armed and reached at about 1700 hours at examination 'K' yard, QICT, Karachi. The Complainant party met with clearing agent of Container No. MSKU-1599191, namely Khalid Amjad Khan, an employee of one Shakil/Messrs F.K Enterprises. Khalid Amjad produced consignment note; customs invoice/packing list and 'E' Form to the complainant and according to the said documents, sanitary goods and oil filters were shown loaded in the said container to be exported to Kampala (Uganda). Clearing agent Khalid Amjad Khan further disclosed that real owner of the consignment is one Zardullah Khan, who is waiting at the parking area for clearance of container. On such discloser, Zardullah Khan was called through clearing agent Khalid Amjad Khan, who came and admitted that he is owner of the consignment that he used `E' Form of Messrs Farooq Enterprises, Karachi. Peoples available at the spot were asked to act as witnesses but due to fear of drug smugglers they refused to act as mashir, therefore, HC Abdul Razzak and PC Meraj Ahmed were nominated as witnesses, in presence of Zaradullah, (applicant) seal of container bearing No. ML-PK-1023854 was broken and opened from which 1561 cartons were recovered, which were thoroughly checked, out of which 187 cartons were found with 12/12 oil filters, containing heroin powder wrapped with yellow color adhesive tape were recovered, same was weighed at the spot and found to be 373 K.Gs. from one carton six thellies of heroin powder weighing one KG was also recovered, thus from 188 cartons 375 K.Gs of heroin powder was recovered and the same were kept in 15 nylon bags and marked at Serial Nos. 1 to 15 and sealed under mashirnama. 500/500 grams of heroin powder was taken from each of three nylon bags for chemical analysis. Accused Zardullah Khan was arrested. Memo of arrest and recovery was prepared at the spot in presence of said witnesses. Thereafter the arrested accused along with recovered narcotic substances was brought at Police Station, where Complainant Inspector Tahir Ahmed lodged FIR No. 64/2013 under sections 6/9-C CNS Act, at Police Station ANF-II Karachi.
3. Investigating Officer recorded statements of prosecution witnesses, interrogated Applicant; got conducted chemical examination of recovered Narcotic Substance and obtained its report. Finally, Investigating Officer submitted Charge Sheet on 24.12.2013, before Special Court for Control of Narcotic Substances-I Karachi. The Applicant moved first Bail Application in Special Case No.1187 of 2013, before the learned Trial Court, which was dismissed vide Order dated 02.04.2014 and he again attempted to move another Bail Application, which was also dismissed vide Order dated 21.06.2016 and thereafter Applicant moved another Bail Application, which was dismissed on 07.11.2016. Hence the Applicant has approached this Court for grant of Post arrest bail in the above crime.
4. Mr. Muhammad Nadeem Khan, learned counsel for the Applicant has contended that that the Applicant is innocent and has been falsely implicated in the present crime by complainant due to enmity. Per learned counsel, no offence of such kind, as narrated by the prosecution has been committed by the Applicant. Per learned counsel, the recovery of alleged 375 K.G. of heroin from container is foisted upon the Applicant in a pre-planed conspiracy; that witnesses of the alleged recovery have not been cited from the locality; that there is violation of Section 103, Cr.P.C, therefore, alleged recovery is doubtful; that co-accused Syed Farooq Ali has been granted bail vide Order dated 21.06.2016, while bail was declined to the Applicant by the learned Trial Court thrice, therefore rule of consistency is applicable in the case of Applicant; that there is no documentary evidence to connect the Applicant that he was exporter of the subject consignment; that there is no recovery of any incriminating article from the possession of the Applicant; that the Applicant is no responsible for the booking, transporting, exporting of the alleged Narcotic Substance, therefore the entire case of the prosecution required further enquiry; that the learned Trial Court has framed the charge on 02.04.2014, but failed to conclude the trial that the diary sheets of the case shows that there is no delay on the part of Applicant in conclusion of the trial; that the prosecution has examined PW Shakil Ahmed, Khalid Ahmed Khan, and Tahir Ahmed, who have not supported the prosecution case, therefore, the Applicant is entitled for the concession of bail on merits as well as on the Proviso of Section 497(1), Cr.P.C; that the Applicant is languishing in the jail since his arrest on 02.12.2013; that so far as E- form is concerned the hand writing experts report proves that it was not written by Applicant, which is mala fide on the part of prosecution; that PW Khalid has deposed that the owner of the consignment is Syed Shakil Ahmed but he has not been arrayed as accused and Applicant has been made scape-goat in the present crime, which requires further enquiry in to the guilt of the Applicant. Per learned counsel, Applicant has no previous criminal record. He lastly prayed for grant of bail to the Applicant on the ground of hardship. In support of his contention, reliance has been placed upon the case of Faqir Muhammad v. The State (2014 SCMR 1353).
5. Mr. Habib Ahmed, learned Special Prosecutor, Anti-Narcotic Force opposed grant of bail to the Applicant and argued that Applicant was arrested at the spot with 375 K.G of heroin. Per learned counsel, the recovered material is Narcotics Substance, prohibited under Control of Narcotic Substances Act, 1997, which is recovered from a shipment owned by Applicant, which is exclusive possession of Applicant; that police is duty bound to register a case if any person possess, transports or sells and delivers or exports on any terms as defined under Control of Narcotic Substances Act, 1997. He next argued that Chemical Examination Report of the recovered Narcotic Substance supports the prosecution case; that Applicant has been charged with offence Under Section 6 read with section 9(c) of Control of Narcotic Substances Act, 1997, which is of serious nature and falls within the prohibitory Clause of Section 497(1), Cr.P.C; that the prosecution has collected sufficient incriminating evidence against the Applicant and if the bail is granted, the Applicant will continue to commit similar criminal activities, causing harm to the public at large. He next contended that Prosecution case is fully supported by the statements of the witnesses therefore; Applicant is not entitled to the concession of bail; that the prosecution witnesses have no enmity with the Applicant, which could suggest false implication of the Applicant; that nothing was recovered from exclusive possession of co-accused, as such the case of Applicant is distinguishable from the case of co-accused, therefore, he cannot rely upon the bail granted to co-accused Syed Farooq Ali, by the learned Trial Court, hence, rule of consistency is not applicable in the case of Applicant; that the prosecution has examined P.W/ Complainant/ Inspector Tahir Ahmed, P.W Shakeel Ahmed, and P.W Khalid Ahmed Khan, who have fully supported the prosecution case. He further added that the prosecution case is in progress and at the verge of conclusion.
6. I have heard learned counsel for the Applicant, learned Special Prosecutor for Anti-Narcotic Force, and perused the material available on record as well as case law cited at the Bar.
7. While deciding a Bail Application, only allegations made in the FIR, statements recorded under section 161, Cr.P.C, nature and gravity of charge, other incriminating material against the accused, legal pleas rail by the accused and relevant law have to be considered.
8. Tentative assessment of the record reflects the following aspects of the case:-- i). Applicant is arrested red-handed with huge quantity of 375 K.G of heroin (Narcotics Substances) from container, which contained an export consignment. ii). Applicant has been booked by the prosecution as main exporter of the subject consignment in the present case as he used E-Form of Farooq Enterprises. iii). PW Khalid Ahmed Khan has deposed in the trial court that the owner of the container was present in the parking area, and applicant was called who admitted his guilt iv). Inspector Tahir had broken the seal of the container in presence of applicant and recovered 375 KG of heroin from oil filters. v). Applicant had acquired the godown from Khalid Ahmed Khan only for storage of sanitary material and he filed undertaking regarding the goods for exporting such container. vi). The recovery of heroin powder was duly witnessed by the police officials, who are as good witnesses as any other person and who had no ostensible reason to falsely implicate the Applicant in a case of serious nature. vii). Chemical Examination Report of subject narcotic substance is positive which supports the prosecution case. viii). Case of the Applicant is hit by prohibition contained in section 51 of the Control of Narcotic Substances Act, 1997. ix). No material has been produced to suggest that the applicant is falsely implicated in the alleged crime.
9. Reverting to the arguments of non-performance of provisions of Section 103, Cr.P.C, Section 25 of Control of Narcotic Substances Act, 1997, excludes applicability of Section 103, Cr.P.C., therefore no case of further enquiry is made out. Reliance is safely made in the case of The State v. Aleem Haider (2015 SCMR 133), Socha Gul v. The State (2015 SCMR 1077), so far as rule of consistency is concerned, the same can only be pressed, if an accused with similar and identical role was released on bail by the Court and others were declined the same concession, therefore same analogy is not applicable in the present case. Merely saying that Applicant has been implicated by Anti-Narcotic Force is not sufficient to discard the prosecution story as false, which is even otherwise a factual controversy and, at bail stage only tentative assessment of the record is to be made. Reverting to the plea raised by the Applicant that handwriting experts report does not support the prosecution case, suffice it to say that this aspect of the case requires evidence and the Trial Court is seized of the matter to look into that aspect of the case, as at the bail stage this is hardly a ground of bail. Besides that the offence falls under section 9(c) of Control of Narcotic Substances Act, 1997, which is punishable with life imprisonment. So far as statutory ground is concerned, it is now settled by the pronouncement of judgments by Honorable Supreme Court that even bail can be refused on the statutory ground, if circumstances so warrants, since present case is of serious nature as huge quantity of heroin powder is recovered and the Applicant has been charged for that offence, whereas the Trial Court has examined PW/Inspector Tahir Ahmed, PW/Shakil Ahmed and PW/Khalid Ahmed Khan. Per prosecution, witnesses have supported the case and Trial is at the verge of conclusion and can be concluded within a period of two months, on this aspect I am fortified by the decision rendered by the Honorable Supreme Court in the case of Babar Hussain v. The State and others (2016 SCMR 1538), case diaries of Trial Court reflects that trial is in progress.
10. In view of the above facts and circumstances, the Applicant has not made out a case for grant of bail at this stage; therefore, the instant bail application is dismissed.
11. The case law cited by the learned counsel for the Applicant is distinguishable from the facts and circumstances of the case in hand.
12. The findings mentioned above are tentative in nature, which shall not prejudice the case of either party at the trial stage. However, the learned Trial Court is directed to record evidence of other material witnesses within a period of two months, where after the Applicant will be at liberty to move fresh Bail Application before the learned Trial Court on fresh ground, if any.
13. That above are the reasons of short order dated 03.8.2017.
HBT/Z-1/Sindh Bail refused.