MUHAMMAD AYUB Versus STATE
ORDER
1. I intend to dispose of these bail applications by this common order as the facts and case‑law involved are same and common.
2. Brief facts of the case are that on 2‑6‑1996 S.H. Mohtarim, Preventive Officer, Custom House, Karachi lodged F.I.R. No.P‑224/96‑JTC, stating therein that while performing his duty at the International Departure Hall, Jinnah, Terminal Complex, Karachi, on the intervening night of 1st/2nd June, 1996 and attending to the outgoing passengers of P.I.A. Flight No.PK‑743 scheduled for Nairobi, a lady passenger of Kenyan nationality identified as Mrs. Fatima Khan Muhammad, accompanied by an A.S.F. Guard namely Abdul Qayyum, appeared at the counter. Abdul Qayyum asked the complainant that the lady passenger is a recommendee of A.S.F. Sub‑Inspector Khalid and that she be facilitated as desired. The complainant suspected the lady passenger and summoned two witnesses namely Mr. Hamid Hussain and Abdul Hafeez. The baggage of the lady passenger was comprising of two suit cases of "Eminent" brand. Before examination of the baggage she was asked whether she had any contraband in her baggage, to which she denied. Consequently the suit‑cases were examined to presence of the abovementioned Mashirs and apparently they were found to contain P.W.A. and border laces. The A.S.F. Guard Abdul Qayyum intervened and stated that the suit‑cases contained only the articles found therein, but the complainant was not satisfied. Consequently he wrapped open the upper and bottom portion of the suitcases, which yeilded the recovery of 7 k.g. of heroin of off‑white colour stuffed in polythene packets. The heroin, suitcases and packing material including the travelling and miscellaneous documents were seized under the Mashirnama prepared on the Wardat.
After lodging of the F.I.R., investigation was carried out and it was found that A.S.F.‑Guard Abdul Qayyum was assigned the job of getting the lady passenger cleared from Customs by two A.S.F. officials namely Muhammad Ayub and Khalid, Sub‑Inspector. Mst. Fatima Khan Muhammad and A.S.F. Guard Abdul Qayyum were arrested and were also served with notice under section 171 of the Customs Act, 1969
3. During the investigations Mst. Fatima Khan Muhammad and Abdul Qayyum, A.S.F. Guard were extensively examined and it was found that the lady passenger had arrived at Karachi Airport accompanied by a person who would be identified by the lady if shown. A.S.F. Guard Abdul Qayyum has re iterated that he had been detailed for clearance of the lady passenger from Customs by Muhammad Ayub at the behest of Khalid Hayat Sumbal. During investigations involvement of A.S.F. Staff had conspicuously transpired. Under the circumstances A.S.F. Staff namely Muhammad Ayub Inspector, Khalid Hayat Sumbal, Sub‑Inspector, Hafeez, Assistant Security Officer and Javed Guard were summoned in I&P Branch for investigation, in which it was revealed that in fact one Shafiullah Khan Niazi, Inspector, A.S.F., had phoned Muhammad Ayub, Inspector, A.S.F., Duty Officer Control Room on Ist June, 1996, and asked Ayub that the lady passenger Fatima Khan Muhammad had to be cleared from Customs. Shafiullah Khan Niazi had also passed on a visiting card to Khalid Hayat Sumbal, which was delivered to Muhammad Ayub. According to the investigations it was further revealed that tote modus operandi as contrived had been resorted to and as per premeditated programme Khalid Hayat Sumbal contacted Muhammad Ayub in his control room and passed on the visiting card of Shafiullah Khan Niazi with the message inscribed thereon "Insp. Ayub Saif please help him. Thanks". On receipt of the visiting card Muhammad Ayub detailed A.S.F. Guard Abdul Qayyum, who eventually went to the Customs counter to seek clearance of lady passenger Fatima Khan Muhammad. According to the investigation, prior to approaching A.S.F. Inspector Muhammad Ayub, Khalid Hayat Sumbal met the lady accused outside the International Departure and then reappeared at the scene and informed the lady passenger that Abdul Qayyum, A.S.F. guard would do the needful, with regard to her clearance through Customs. After usual examination of the four A.S.F. personnel, Khalid Hayat Sumbal, was arrested and was served with a notice under section 171 of the Customs Act, 1969. He seemed to have played a vital role in the perpetuation of crime. Rest of the A.S.F. personnel were let off. Investigation. further disclosed that Shafiullah Khan Niazi, Khalid Hayat Sumbal and Muhammad Ayub had played an instrumental part in the clearance of the lady passenger, as such, Muhammad Ayub and Shafiullah Khan Niazi were also arrested on 30‑6‑1996 and were served with notices under section 171 of the Customs Act, 1969.
During interrogation of Khalid it transpired that ex‑A.S.F. Inspector Chaudhry Haseeb Ahmed and one Fazal Ahmed were the real persons operating behind the scene. Heroin weighing 7 k.g. was supplied to the lady accused by co‑accused Fazal Ahmed. As per their modus operandi, Chaudhry Haseeb Ahmed reached Karachi prior to the departure of lady accused and was checked- in in Room No.209, Hotel Karachi and Restaurant, Saddar, Karachi. It also transpired that Fatima Khan Muhammad and Fazal Ahmed reached Karachi by Night Coach in‑between the night of 1st/2nd June, 1996 and both of them were received by Chaudhry Haseeb Ahmed and A.S.I. Khalid Hayat Sumbal at Quaid e‑Azam International Airport, Karachi. During investigation it further transpired that Fazal Ahmed went to the Gulf Hotel and was checked‑in Room No.204. The prosecution has procured the evidence with regard to the stay of both the accused in separate hotels and that Fatima Khan Muhammad had been to up country. Samples of the heroin had been referred to the laboratory for chemical analysis.
4. Interim Charge‑Sheet against the accused/applicants for an offence punishable under section 2(s) of the Customs Act, 1969, punishable under clause (8) of section 156(i) read with section 178, was submitted in the Court of the learned Special Judge Customs and Taxation, Karachi on 16‑6‑1996, showing Fazal Ahmed and Chaudhry Haseeb Ahmed as absconders, for whom the investigating agency is taking efforts for their arrest.
5. Bail applications on behalf of the accused/applicants were moved in the trial Court but the same were dismissed by the learned trial Judge with a common order dated 3‑9‑1996. Hence they have approached this Court for bail.
6. I have heard Mr. Sohail Muzaffar, learned counsel for applicant Muhammad Ayub, who has contended that name of Muhammad Ayub does not appear in the F.I.R.; that in column 2 of the Interim Charge Sheet Fazal Ahmad and Chaudhry Haseeb Ahmed have been shown as absconders; that the only allegation against Muhammad Ayub is, that he received the visiting card from his colleague for help of the lady passenger; that no overt act has been assigned to the applicant; that the applicant is innocent and victim of circumstances; that provisions of section 2(s) of the Customs Act, 1969 read with section 178 of the said Act,, are not applicable as there is no allegation of abetment; and that the case of the applicant requires further enquiry.
7. Mr. Ilamdin Khattak for applicant Shafiullah Khan Niazi, has adopted mostly the arguments advanced by Mr. Sohail Muzaffar and has also contended that name of Shafiullah Khan Niazi does not transpire in the F.I.R., that no specific role has been assigned to the accused/applicant that the alleged visiting card was issued to Muhammad Ayub, not to Shafiullah Khan Niazi; that no evidence is available with the prosecution to prove the case against the applicant.
7‑A. Mr. Raja Ali Asghar for applicant Abdul Qayyum has contended, besides the contentions of Mr. Sohail Muzaffar which he has adopted, that the applicant is a security guard and had only accompanied the lady passenger under the orders of his superiors; that no overt act has been assigned to him; that challan has been submitted by the prosecution and the applicant is no more required for further enquiry; and that the case of the applicant requires further enquiry.
8. I have also heard Mr. Muhammad Roshan Essani, learned D.A.‑G., who has opposed these bail applications and has contended that names of accused/applicants Muhammad Ayub and Abdul Qayyum are mentioned in the F.I.R.; that Mst. Fatuma (Fatima Khan Muhammad) a Keyman national, was to be get cleared by accused Abdul Qayyum from the customs counter, which he did, but the Customs Authorities on suspicion searched the suit‑cases belonging to lady passenger Mst. Fatima Khan Muhammad in presence of Mashirs and recovered 7 k.g. heroin powder; that during the investigation the prosecution has collected sufficient evidence against the accused/applicants who appear to be members of drug trafficking mafia and that they had helped Mst. fatima Khan Muhammad for smuggling the heroin under their shelter; that act of the accused/applicants to support a foreign national, having no relation or concern with her, prima facie, supports the case of the prosecution about their involvement in the commission of the crime; that the prosecution has also recovered the visiting card of accused/applicant Shafiullah Khan Niazi, with the message inscribed thereon "Insp. Ayub Sahib‑‑‑Please help him‑Thanks"; that all the accused had played vital role in the commission of the crime; that the accused/applicants may tamper with the prosecution evidence if they are released on bail. The learned D.A.‑G. has referred the following authorities:‑‑‑
(1) 1995 SCMR 1249 (case of Ch. Shujat Hussain v. The State):
His lordship Mr. Saleem Akhtar, J. of the Hon'ble Supreme Court in the case has laid down as follows:‑‑‑
"In case of bail the Court is riot required to probe into the matter but has to make a tentative assessment of the material produced to ascertain whether there are reasonable grounds to believe that the accused has committed the crime."
(2)1996 SCMR 555 (case of Abdul Hayee v. The State):
His lordship Mr. Justice Raja Afrasiab Khan of the Hon'ble Supreme Court in this case has observed as follows:‑‑‑
"Time and again, it has been said by this Court that at bail stage, evidence of the parties could not be assessed/tested in depth. The purpose is to avoid expression of opinion one way or the other on merits of the case."
9. I have gone through the material placed with the case and have also perused the case‑law, referred by the learned D.A.‑G. All the accused/applicants are employees of Airport Security Force, whose primary duty is to maintain security of the airports, to provide security to the crews and staff of the airport, but the role played by the accused/applicant, as revealed during the investigation, is quite different and, prima facie, supports the case of the prosecution. Contention of the learned counsel for the applicants that no specific role has been assigned to any of the applicants, is devoid of any substance. A person can speak lie but circumstances can never speak lie. Here in this case the Customs Authorities on suspicion subjected two suit‑cases belonging to Mst. Fatima Khan Muhammad to close scrutiny/checking, which resulted in the recovery of 7 k.g. heroin powder. The accused/applicant Abdul Qayyum had accompanied Mst. Fatima Khan Muhammad to the counter of customs at the behest of Muhammad Ayub, who was asked by accused Shafiullah Khan Niazi on phone that the lady passenger had to be cleared from Customs. Detailed analysis of the prosecution case at the stage of bail is not permissible, as held by the superior Courts. Tentative assessment of the evidence at the time of bail is legally to be done. Names of accused/applicants Muhammad Ayub and Abdul Qayyum are mentioned in the F.I.R.; whereas the role played by accused Shafiullah Khan Niazi, has been highlighted during the investigation, on which he had been arrested and charge‑sheeted by the prosecution in the interim charge‑sheet. Mst. Fatima Khan Muhammad is a Kenynian national and apparently the accused/applicants have no relationship or concern with her. In these circumstances the role played by the accused, supports the version of the prosecution that the accused have acted in furtherance of their common intention of all to get the heroin powder smuggled out of country through Mst. Fatima Khan Muhammad. Apparently accused Shafiullah Khan Niazi is neither relative of lady accused nor he had concern with her, even then he passed on a visiting card to accused Khalid Hayat which had to be delivered to Muhammad Ayub and Khalid Hayat passed on the visiting card to Muhammad Ayub with the message inscribed thereon "Insp. Ayub Sahib‑‑‑Please help him ‑‑‑Thanks". In these circumstances what kind of help was desired by Shafiullah from Muhammad Ayub through Abdul Qayyum, is not understandable, except to presume that the help so sought for was for clearance of Fatima Khan Muhammad under the shelter of A.S.F. The contention of the learned counsel for the applicants that no overt act has been assigned to any of the applicants or that accused Muhammad Ayub and Abdul Qayyum have acted on the direction/compliance of their superior officers, is not tenable because subordinate officers are supposed to carry out legal orders of their officers The case has been registered in June, 1996 and interim charge‑sheet has already been submitted in the Court of law; evidence is yet to be recorded by the trial Court and possibility of tampering with the prosecution evidence, at the hands of the accused/applicants, after getting bail, cannot be ruled out. The modus operandi adopted by the accused shows that they are a managed group of smugglers and they had been indulging in this heinous crime for a long time 'but as the luck would have, this time they could not escape. Drug trafficking nowadays has taken the shape of dirty business in which young generation of our country is involved in this menace i.e. drug trafficking, has created various social problems for our nation so also given very bad reputation for Pakistan in all around the world.
10. The case‑law cited by the learned D.A.‑G. under the circumstances is relevant and helpful to the prosecution. I have given my anxious consideration to the facts and material placed with the case and I most respectfully follow the rule laid down by their Lordships of the Supreme Court, referred hereinabove, and under the circumstances there is no hesitation in my mind to hold that there are reasonable grounds to believe that the accused/applicants are guilty of the offences for which they stood charge‑sheeted. Resultantly their bail applications are rejected.
11. After hearing the bail applications, by short order I have rejected the same on 3‑10‑1996. These are the reasons for the same.
N.H.Q./M‑134/K Bail refused.