MIR JAVED IQBAL KHAN JAMALI Versus State
MUHAMMAD SALEEM JESSAR, J.--- Through instant Criminal Bail Application Applicant Mir Javed Khan Jamali seeks his release on bail in FIR/ C No. PPU/Misc/01/2016-HQ, dated 09.01.2016, under sections 6, 7, 8 and 14 of the Control of Narcotic Substances Act, 1997, punishable under section 9(c) and section 15 of the Control of Narcotic Substances Act, 1997. The case as is manifest from record, has already been challaned by the police and the same is now pending for trial before the Special Court-II (CNS) Karachi vide Special Case No.401/2016 (re-State versus Mir Javed Iqbal Khan Jamali). It appears that the bail plea was raised on behalf of applicant before the trial Court but his request was turned down by order date 23.11.2017. Thereafter applicant approached this Court through instant bail application.
2. Brief facts of the prosecution case are that complainant SPO Muhammad Shamim Akhtar lodged FIR on 09.01.2016 alleging therein that a credible information was received by Port Control Unit that Acetic Anhydride was being imported in the garb of Acetic Acid Glacial and that an attempt would be made to smuggle huge quantity of Acetic Anhydride which is used for manufacturing heroin in form of import consignment, accordingly strict vigilance was maintained by the Port Control Unit on 07.01.2016 an import consignment arrived from Tanzania on vessel MSC DALMA having VIR No.KPPI-0553 dated 09.11.2015, Index No.419 at Port Muhammad Bin Qasim and lying in NLC Container Terminal, Karachi duly stuffed in (1x20) container bearing No.CZZU-370959-3 mentioning the importer address for Sialkot was suspected to be the one, thorough background checks were carried out in order to properly profile and target the shipment as high risk, owing to the sensitivity of the issue the container was put on hold at NLCCT on 07.01.2016 and no one came forward to claim the goods till 09.01.2016, therefore, such container was shifted from NLCCT to PCU, HQ, NMB, Warf, Karachi in presence of mashir Abdul Malik Balouch and Abdul Majeed for carrying out detail examination and the intact seals were verified and cut in presence of above said mashirs and on examination of said container blue colour plastic jerry cans duly stuffed with liquid having pungent smell, which were 868 in number duly labeled as Acetic Acid Glacial mentioning the name and address of the manufacturer. Owing to the information about presence of Acetic Anhydride inside the blue color plastic jerry cans and the liquid inside was extracted from six different jerry cans and tested on the spot with the help of HAZMAT ID Machine which confirmed it to be Acetic Anhydride instead Acetic Acid Glacial as declared on the labels and shipping documents and each of the blue plastic jerry can upon weighing, found to be 26.50 Kgs. (gross) stuffed with 25 Kgs. of liquid, as such total weight of acetic anhydride so recovered came to be 21700 Kgs. (net), therefore, 868 blue color jerry cans containing Acetic Anhydride weighing 21700 Kgs., container, seal of shipping line, Tanzanian Revenue Authority seal and seal of Pakistan Customs were seized in presence of above named witnesses under a cover of mashirnama and the representative samples which were taken from six blue color jerry cans each containing 25 Kgs. net, total 21700 Kgs. were sealed under the signatures of mashirs above named, whereas 862 blue color plastic jerry cans again sealed in the same container, therefore, the FIR was lodged against proprietor, owners, directors and partners of Messrs JB Jamali Brothers, International Import and Export, Office No.6, Ali Plaza, Pakistan Maliki Park, Sialkot, License No.B-0708824 being consignee and notified party as per Bill of Lading No.MSCUTZ324785 dated 19.10.2015 issued at Dar Es Saaam Tanzania by Shipping Line Messrs Mediterranean Shipping Company SA. (2) Messrs High Grade Cashews (T) Limited, Export Processing Zone, Dar Es Ealam, Tanzaina being shipper as per B/L No.MSCUTZ324785 dated 19.10.2015, issued at Dar Es Salam Tanzaina by Shipping Line Messrs Mediterranean Shipping Company SA, (3) Proprietor, owners, directors, partners of Messrs Food Chemical International Limited, 2277 Zuchongzhi road, Zhangjiang, Hi-Tech Park, Shanghai, China, being manufacturer as per labels found pasted on the blue color plastic jerry cans recovered from the container No.CZZU370956-3 and (4) other accomplices.
3. Learned counsel for the applicant/accused contended that the accused is innocent and has falsely been implicated in this case and in fact the FIR was lodged against Messrs JB Jamali Brothers, International Import and Export, Office No.6, Ali Plaza, Pakistan Maliki Park, Sialkot, License No.B-0708824 and the present applicant/accused Mir Javed Iqbal is not the owner of such company and the license number of the accused is 55796. He further contended that as per NTN of the accused, the business address is Shireen Jinnah Colony, Karachi and he has no nexus with the address of Sialkot and Messrs JB Jamali Brothers, International Import and Export, and he also referred FBR tax payment certificate showing the same address of Shireen Jinnah Colony. He argued that CNIC of the accused shows his residential address at Karachi and he does not belong from Punjab nor his company is registered with the name of JB Jamali Brothers, International Import and Export, but his company is registered in the name of Jamali Brothers only. He further argued that on the Bill of Lading, a phone number 923352743644 is appearing, whereas, another name of a company. The Carrier has been mentioned as I Loyds/IMO No.906290 port of discharge agent MSC shipping Line, Karachi, I.I, Chundrigar Road, Karachi having telephone number and fax number, but no inquiry has ever been made by the I/O whether are these address and phone numbers of Messrs JB Jamali Brothers, International Import and Export, Office No.6, Ali Plaza, Pakistan Maliki Park, Sialkot, even cell number was appearing on such bill of lading. He pointed out that no inquiry was conducted regarding arranging the container and that who paid the transportation charges of such shipment and no inquiry was conducted regarding correspondence and delivering as well as commercial invoice etc. He contended that no any contraband was recovered from the direct possession of the applicant/accused and there is no document in the name of the accused nor he is an importer of such consignment. He lastly prayed for grant of bail to the applicant/accused.
4. On the other hand, Mr. Muhammad Javed K.K, Assistant Attorney General for Pakistan has opposed the bail application on the ground that the applicant is same person and trial Court has rightly rejected his bail plea and he does not deserve any concession in shape of his release on bail. He, however, could not controvert the consignment being not banned and is an importable consignment.
5. I have heard learned counsel for both the parties and have gone through the material made available before me on record.
6. The main contention of learned counsel for the applicant is that the applicant is not real culprit and the real culprit who imported consignment having same name belongs to Punjab and applicant has his residence as well as the business address at Karachi. In support of his contention, the learned counsel for the applicant has focused upon the annexures annexed with the application and adduced certain documents which are yet to be scrutinized and thrashed out by the trial Court as to whether the claim of prosecution is genuine or the plea taken by the applicant carries much weight than the claim of prosecution. While hearing the application, I have noted that there is some ambiguity created by the I/O which requires appreciation and thus same is not possible without recording of evidence. Even it is for the trial Court to decide as to whether the applicant is guilty of offence or not, to me, at least at the stage of bail only tentative assessment is to be made and deeper appreciation of the same is not permissible. Reference can be had from the case of Said Akbar v. Gul Akbar (1996 SCMR 931).
7. It is well settled principle of law that every accused will be presumed to be blue eyed boy of the law until and unless he may be found guilty of the alleged charge and law cannot be stretched upon in favour of the prosecution, particularly at bail stage. Mere huge quantity or gravity of the offence may not disentitle the applicant from concession of bail as bail cannot be withheld as an advanced punishment and he could not be kept behind the bars for an indefinite period. Reliance in this context can be placed upon the case of Wajid Ali v. The State and another (2017 SCMR 116).
8. Further, it is also settled law that the object of bail is to secure the appearance of an accused at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventive and, therefore, deprivation of liberty must be considered a punishment, unless it may be required to ensure presence of accused during trial. The punishment begins after conviction and not before it, therefore, if a person is wrongly released on bail then such wrong done can be repaired with after conclusion of the trial (if he is found guilty after trial) by putting him again in jail but the incarceration wrongly caused to or faced by an accused during trial and after conclusion of the trial, if he may be found innocent then the golden moments/days spent by, him under incarceration cannot be repaired with. Hence, the basic rule is bail and refusal will be an exception.
9. The upshot of the above discussion is that the applicant has successfully made out his prima facie case for his release on bail. Consequently, instant bail application was allowed by short order dated 03.05.2018 and the applicant Mir Javed Iqbal Khan Jamali was ordered to be released on bail subject to his furnishing solvent surety in the sum of Rs.500,000/- (Five Hundred Thousand Only) and P.R bond in the like amount to the satisfaction of learned trial Court. These are the reasons for said short order dated 03.05.2018.
SA/M-153/Sindh Bail granted.