FARHAN KHAN Versus State
ORDER
AFTAB AHMED GORAR, J.--- The captioned bail application has been sought for post arrest bail of applicant Farhan Khan, who is booked in Crime No. 36 of 2009, Police Station ANF, Clifton-Karachi, registered under section 9(c), Control of Narcotic Substances Act, 2017. Earlier the bail plea of the applicant has been declined by the learned court of Special Judge, Court-I, (Control of Narcotic Substances), Karachi vide order dated 20.12.2012.
2. Precisely, the prosecution story as is envisaged in the FIR is that on the eventful day complainant on receipt of spy information with the pretext that International 'Smuggler namely Sher Alam and Abid Hussain are trying to transport huge quantity of Charas to abroad; on such an information complainant constituted a raiding team consisting of his subordinate staff reached at Plot No.11/4, in-front of Maripur, Sewerage Treatment Plant, Gate No.6, Quaid-e- Azam Truck Stands, Maripur, Hacks-bay Road, Karachi; knocked the door, one person opened the gate of Godown after seeing police personnel in uniform tried to close the gate; whereby complainant and the raiding party apprehended assailant Madeen Gul, Israr, Shabir Khan and Bilal Hussain; they disclosed the name of Sher Alam and Abid Hussain ("both were standing outside the Gate of Godown") who made their escape good; where-after Container No. IRSU -492421-5 loaded on Truck Trailer No.C-1075 hide Charas in secret cavities being property of Sher Alam and Abid Hussain; on search it was found that cloth bales were loaded in said Container; all the cloth bales were got out from the Trailer; hence on opening secret cavities secured 250 bags of yellow colour on which "Urea 46" was printed; on opening said bags, and found each bag 20/20 foil pack packets on which "DON CAFEE" was written, after weighing each hag contains 1/1 kilogram and total weight of each yellow bag becomes 20/20 kilogram. The total weight of 250 bags containing Charas becomes 5000 Kilograms. Complainant took out 1/1 foil packet of Charas from each 250 bags of charas as sample for chemical examination; He for the proper identification of each secured 250 bags of Charas mentioned serial No.1 to 250. He put the sample packets of charas separate from 250 bags and keep 50 packets each in five separate bags and sealed the same as samples. He also sealed 250 bags of Charas containing remaining Charas and sealed the same separately. The total number of cloth bales came out from Container was 108 bales. He kept the iron sheet with which secret cavities were prepared along with bales of Cloth in the Container and then lock said container and sealed the same. The arrested accused further disclosed that in Truck Trailer No.Z-2581 on back side of front seat of Truck Trailer at sleeping seat other charas was available, which they kept on the direction of Sher Alam and Abid Hussain. Then on the pointation of all the five accused he entered into the Truck Trailer No.Z-2581, and on sleeping seat available on back of front seat of Truck Trailer he found five bags available there, hence he unload said bags from Truck Trailer and kept on ground. He then checked said five bags of white colour and from four bags he found 40/40 foil pack packets lying in each bag, and in one bag 35 foils pack packets were lying and each foil pack packet were wrapped with yellow colour solution tape. He then checked each secured foil pack packets and found that Charas was lying in them. He weighed each secured packet of Charas which becomes 1/1 kilogram, and total 195 packets weight becomes 195 kilogram Charas. He separated one packet of Charas from each bag and sealed the same as sample in white cloth bag for chemical examination. He marked serial Nos.1 to 5, on secured bags containing remaining Charas for their proper identification. He from dash board of Truck Trailer No.C-1075, secured registration book. Insurance certificate, Excise and Taxation certificate of sadi Truck Trailer. He also secured from dash board of Truck Trailer No.Z-2581, Root permit, Tax letter. Registration book, Insurance certificate of said Truck Trailer. He then took the personal search of arrested accused and from accused Madeen Gul he secured cash of Rs.1280/-, one mobile China U-800 along with SIM, original CNIC of accused Madeen Gul and Key from side pocket of his Shirt. He secured one Nokia Mobile Phone 1208, and cash Rs.230/-, from side pocket of their shirt of accused Israr. He secured driving license card of Shabir Khan, cash Rs.30/- and key from pocket of his shirt. He secured Rs.1200/-. CNIC, Mobile Phone I.G 288 along with SIM, some visiting Cards from pocket of the Shirt of accused Bilal. He secured cash of Rs.270/-, original CNIC, one Nokia 1208, some visiting cards lying in the purse from accused Yar Muhammad; thereafter arrested the accused at the spot; hence this FIR.
3. Mr. Riaz Ahmed Phulpoto, advocate, representing the applicant contended that applicant is innocent and has been falsely implicated and nothing incriminating articles have been secured from the possession of applicant; per learned counsel there is no role attributing to the applicant with regard to the alleged Narcotic contraband; per learned counsel this is third bail application before this Honourable Court; per learned counsel there is no direct evidence against the applicant; per learned counsel the evidence collected against the applicant is prior to the incident; per learned counsel port documents provided by the prosecution lacks signature of KPT Department and the Custom Authorities; per learned counsel for the applicant may be enlarged on post arrest bail. Learned counsel has relied upon the case law reported as 2017 SCMR 1194.
4. Mr. Habib Ahmed, Special Prosecutor ANF contended that applicant has been attributed specific role for transportation and shipment of prohibited contraband to abroad; per learned special prosecutor the applicant being proprietor of Messrs A.R. Traders being facilitator in the crime scene; per learned special prosecutor there is huge quantity of prohibited contraband which itself is sufficient evidence connecting the applicant with the commission of present crime: per learned special prosecutor there are series of post arrest bail applications moved before this Court as well as before the learned trial Court which all met with the fate of dismissal; per learned special prosecutor this is an offence against the society at large therefore learned special prosecutor oppose the grant of bail and prayed for dismissal of the bail plea.
5. Heard and perused.
6. Admittedly, it would be essential to lash out facts repugnant in the present bail application. After completion of usual formalities, police furnished the charge sheet before the learned trial Court against accused namely Madeen Gul, (2) Israr, (3) Shabbir, (4) Bilal Hussain and (5) Yar Muhammad; and present applicant together with two other co-accused persons namely Abid Khan and Sher Alam respectively were shown absconder in the charge sheet; learned trial court proceeded matter and convicted all the arrested accused persons and sentenced them for life imprisonment to each of accused and also imposed fine of Rs.100,000/- vide judgment dated July 30th, 2010; and the case of present applicant and other two absconders accused persons was kept on dormant file till they are arrested. Conviction and Sentence upheld by this court against four accused persons; even otherwise accused Yar Muhammad was acquitted vide judgment dated 13.06.2011; said judgment was also upheld by the Hon'ble apex Court in Jail Petitions Nos. 300 of 2011 and 364 of 2011 on January 1st, 2012 respectively, present applicant deliberately absconded away from the proceeding and remained fugitive from law; thereby present applicant has also loses his right of concession of bail.
In the case of Jawaid Khan v. The State, reported in 2010 SCMR Page 1989, the Hon'ble Supreme Court of Pakistan has held as follows:
"---We do not feel persuaded to agree that the case of the petitioner will not fall within the prohibitory clause of section 497, Cr.P.C., but it shall be covered by section 9(c), C.N.S. Act, 1997 providing for various sentences, which not squarely fall within the prohibitory clause of section 497, Cr.P.C. but also attract the bar contained in section 51(1) of C.N.S. Act, 1997, specifically made applicable to those offence which inter alia provide for punishment of death sentence. For ease of reference, the said provisions of law is reproduced as under:-
"51(1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any to here law relating to narcotics where the offence is punishable with death."
In the case of ANF v. Abdul Ghani reported in 2010 SCMR page 61 and in the case of State through Force Commander, ANF, Rawalpindi v. Khalid Sharief; all the three captioned cases; High Court has please to grant bail; in the narcotic cases, the Hon'ble apex Court has set aside the orders of the High Court; in the case of State through Deputy Director ANF v. Mobeen Khan reported in 2000 SCMR Page 299, same was the also situation.
In the case of Muhammad Gul v. The State reported in 2000 SCMR Page 71, in the case of Muhammad Afzal Durrani v. The State reported in 2000 SCMR Page 1780 and in the case of Muhammad Tasleem v. The State reported in 2006 SCMR Page 468, it has been held as under:
"Bail---Refusal of, investigating agency, after carrying out investigation in the matter, placed the name of accused in column No.2 of the challan---Accused admittedly was the proprietor/owner of the clearing and forwarding agency which was refused by him and prima facie he would be responsible for the "Hashish" found in the consignment, who had acted in duel capacity as an exporter as well as clearing agent, samples for obtaining, the chemical examiner report were to be collected from Saudi Arabia as stated in the challan, offence alleged against the accursed were punishable with death, bail was declined to the accused in the circumstances."
Thereafter Criminal Bail Application No. 776 of 2015 was moved before this court which was disposed of with direction to the learned trial Court to conclude the trial within one month. After the direction trial court examined PW-Inspector Syed Sher Ali Shah Sheerazi at Ex.36 and PW-Inspector Muhammad Muzzamil at Ex .37.
I am also well-versed with the case law reported in PLD 2016 Supreme Court 11, in which it has been observed as follows:-
"4. We have scanned the material placed on record and are unable to subscribe to such submissions of the learned ASC. Neither non-compliance of the directions issued to the trial Court to conclude the trial expeditiously or within some specified time can be considered as valid ground for grant of bail to an accused, being alien to the provisions of section 497, Cr.P.C., or filing of direct complaint will have any bearing as regards earlier bail refusing orders, which have attained finality, unless some fresh ground could be shown by the petitioner for consideration of his request for grant of bail afresh, which is lacking in the present case."
In a case reported in SBLR 2004 Sindh page 785, it has been observed as follows:-
"7. In the first instance it was argued that failure to get the trial concluded within the period of two months undertaken in C.P. No.D-739/2003 itself entitled the Petitioner to bail. We regret we are unable to agree. It is well settled that such directions could only be treated as director. In any event the order itself states that upon expiry of the said period the Petitioner may be able to apply for bail (underlining our). If does not state that the Petitioner shall acquire a right to be enlarged on bail."
7. Although it is fact that name of the applicant does not find place in the FIR and no role as alleged in the FIR has been attributed to the applicant; more so; applicant has been found in facilitation of the crime being proprietor of A.R. Traders bearing NTN/FTN No.3254756-7 and had obtained 'E' Form from Habib Bank Limited; the GD-1 also confirms name and address as A.R. Traders. The bank account of Messer's A.R. Traders showing transaction as on 24-03-2009 Rs.14,17.099/-; on 26-05-2009 Rs.18,53,220/- and on 03-06-2009 Rs.23,67,980/- whereby it had surfaced on the record that Shipper and the Exporter both are equally responsible for transportation of goods in the Container. There is huge quantity of prohibited contraband and yet it would be determined after the trial commence whether the facilitation of applicant has been proved or not: yet at bail stage deeper appreciation of evidence should be avoided rather to provide an opportunity of being innocent to the applicant while the judgment is pronounced.
8. Learned counsel relied upon 2017 SCMR 1194 this case is distinguishable from the present case as in that case the investigation officer remained fugitive from law and absconder in other case Hon'ble Supreme Court has been granted bail but in the present case the co-accused have been convicted by the learned trial Court and the appeal was dismissed by this court as well as by the Hon'ble Supreme Court.
9. There is an unexplained noticeable absconsion of the Petitioner disentitles him to the concession of bail notwithstanding the merits of the case. It has also been surfaced on record like smoke on the screen while exploring that applicant Farhan Khan is fully implicated in doing smuggling of hazardous drugs detrimental to the life of human being and is prohibited contraband for transportation via shipment for abroad therefore huge quantity of "Hashish' weighted 5195 kilogram of "Hashish/Charas" with connivance of other his facilitator accused who earlier have been convicted by the learned trial court and the judgments were too upheld by the Hon'ble apex Court. It has also been crystal clear on record that no enmity has been shown by the applicant with Anti-Narcotic Force personnel for his false implicated. In the instant case, the applicant is found to be owner of Messrs A.R. Traders, Clearing and Forwarding, Importers and Exporters.
10. As discussed supra, the instant criminal bail application carries no force is hereby dismissed.
WA/F-21/Sindh Bail refused.