EHSANUL HAQUE vs THE STATE

1. ' The learned Special Judge, Malir, Karachi rejected the bail application of applicant on 24-2-1999 mentioning as under:-- "In this case a commercial quantity of 340 grams Heroin Powder, which is a dangerous drug, has been recovered from the possession of the applicant/accused, which he was attempting to smuggle out of the country and these type of accused have given a bad name to this country in foreign countries. The alleged act of the accused/ applicant shows that he is a dangerous person and merchant of death and his case comes under the 4th proviso to subsection (1) of section 497, Cr.P.C. As such he cannot claim the benefit under the 3rd proviso of subsection (1) of section 497, Cr.P.C.

2. ' For the above, the accused/applicant is not entitled to the grant of bail. I, therefore, reject this bail application."

3. ' The learned Advocate for the applicant has requested for bail on the ground that the applicant is in custody since 31-8-1997 but the prosecution has failed to examine any witness. The applicant is entitled to grant of bail on the ground of statutory delay. The applicant is under treatment of Professor Rasheed and he is not getting proper treatment in jail. There is no independent Mashir of recovery although recovery is said to have been made from public place. The learned counsel relied on decision reported in 1999 PCr.LJ 63.

4. ' The learned Special Prosecutor for A.N.F. Opposed the grant of bail to applicant and relied on decision reported in PLD 1998 Lah. 146 and an unreported order of Honourable Supreme Court in Criminal Petition No,53-K of 1998.

5. The F.I.R. In this case was registered on 1-9-1997. Learned counsel for applicant has requested for bail on the ground of statutory delay and ill-health. As regards ground of ill-health the lower Court has already mentioned in the order that according to report of Medical Officer of District Jail the applicant was suffering from Anxiety Neurosis with Mild Depression and he was being provided proper treatment in the jail. As regards ground of statutory delay the learned Special Prosecutor for A.N.F. Has relied on unreported order of Honourable Supreme Court in The State through Deputy Director, Anti-Narcotics Force, Karachi v. Mubeen Khan Criminal Petition No,53-K of 1998. Para. 4 of this order is as under:-- "It appears that after the dismissal of the above bail application on or about 13-2-1998, the respondent filed the above fresh bail application in the High Court on the ground of statutory delay, which was allowed through the impugned order."

6. ' In paragraph 12 of the said order their Lordships have been pleased to lay down the dictum as under:- "We are, therefore, inclined to hold that in view of the abovequoted subsection (1) of section 51 read with clauses (b) and (c) of section 9 of the Act, the third proviso to subsection (1) to section 497, Cr.P.C. Cannot be pressed into service in a case in which the quantity of narcotic drug or psychotropic substance or controlled substance exceeds one kilogram and which may entail, inter alia, death sentence. The above conclusion is in line with judgment of this Court in the case of State v. Syed Qaim Ali Shah 1992 SCMR 2192...."

7. The learned Special Prosecutor for A.N.F. Also relied on decision reported in PLD 1998 Lah. 146 wherein bail application filed by Mst. Nasir Bibi under similar circumstances was rejected. In the case in hand 340 grams of heroin were recovered from the applicant inside the Quaid-e-Azam International Airport, Karachi as he was leaving for Colombo. The facts of the case are such that discretion cannot be exercised in favour of the applicant, but the trial Court is directed to dispose of the case of applicant as early as possible. The bail application is, therefore, rejected.