HABIBULLAH KHAN vs THE STATE
This matter concerns a post-arrest bail application filed by the applicant, Habibullah Khan, facing charges under the Control of Narcotic Substances Act, 1997, for allegedly supplying heroin to a co-accused arrested in the United States. The core legal question was whether the applicant was entitled to bail given the delay in trial proceedings, the nature of the evidence, and the statutory bars against bail for offenses punishable by death. The Sindh High Court held that the applicant was not entitled to bail. The Court observed that the applicant had previously failed in a quashment petition, and the prosecution presented evidence, including recorded telephone conversations, linking the applicant to the co-accused and the narcotics offense. The Court determined that the circumstances did not warrant bail and dismissed the application, while directing the trial court to conclude the proceedings within two months. The key principle laid down is that where there is prima facie evidence connecting an accused to a narcotics offense punishable by death, and previous attempts to quash proceedings have failed, the statutory bar against bail under the Control of Narcotic Substances Act, 1997, remains applicable despite delays in trial.
- Does the existence of a statutory bar against bail for offenses punishable by death under the Control of Narcotic Substances Act 1997 preclude the grant of bail when prima facie evidence exists?
- Is an accused entitled to bail solely on the grounds of trial delay if previous attempts to quash the criminal proceedings have been dismissed by the High Court?
- Does the presence of recorded telephonic evidence linking an accused to a co-accused in a narcotics case constitute sufficient material to deny bail?
- Sections 6, 7, 8, 9, 14 and 15, Control of Narcotic Substances Act 1997
- Section 561-A, Code of Criminal Procedure 1898
- Section 51, Control of Narcotic Substances Act 1997
ORDER
1. The applicant has sought bail in Crime No.23 of 1999 registered with Police Station ANF-I, under sections 6,7,8,9,14 and 15 of Control of Narcotic Substances Act, 1997.
2. The brief facts of the prosecution case are that complainant Manzoor A.I Rana, Assistant Director ANF, after conducting enquiry came to know that one Aslam Masih Seaman of Pakistan National Shipping Corporation, Malakand was arrested on 5-9-1997 by DEA member of Hoston Sea Port, Texas USA as 1.5 kilograms heroin powder was recovered from his possession. During the enquiry, it was revealed that heroin powder was banded over by the above named applicant to Aslam Masih who is member of Merchant Navy and is on suspected list of Anti-Drug Force and thereafter the investigation was entrusted to Inspector Saeed Ahmed Qureshi, who later on submitted challan in the Court of Special Judge, Narcotics Karachi. Previously, bail application was moved by the applicant before the trial Court which was dismissed on 18-4-2000 against which the applicant approached this Court under Criminal Bail Application No.495 of 2000 but the said bail application was not pressed by the Defence Counsel and the same was dismissed on 27-6-2000 by this Court and the trial Court was directed to conclude the trial within 60 days commencing from the receipt of the order and in case the trial is not concluded within stipulated period, the applicant would be at liberty to move fresh bail application which to be decided on its merits and in accordance with law.
3. Learned Counsel for the applicant has raised the following grounds for bail:--
(i) There is delay of 2 years 2 months and 2 days in the registration of F.I.R. Which was unexplained by the prosecution; (ii)There is delay of 6 months of submission of challan which also goes unexplained by the prosecution; (iii)There is a Statement of co-accused Aslam Masih against the applicant/accused; (iv)That the directions were given by this Court to the trial Court but the trial Court has not concluded the trial within the stipulated period; Learned Counsel for the applicant 'has placed reliance on 1999 SCM R 2147; 2000, P.Cr.L1 1317-1328; 2000 P.Cr.L1 740. He has also placed on record unreported decision of this Court being Criminal Bail Application No.492 of 2000; Criminal Bail Application No.173 of 2000; Criminal Bail Application No.306 of 2000 and 1998 SCM R 454; 1999 SCM R 2147. Lastly learned counsel for the applicant has submitted that the case of the Applicant calls for further enquiry.
4. On the other hand, Mr. Shoaib M. Ashraf, Special Public Prosecutor for ANF/State has invited our attention on the reported case of Habibullah Khan v. The State (2000 P.Cr.LJ 1898) and has contended that the above applicant had moved Criminal Miscellaneous Application under section 561-A, Cr.P.C. For the quashment of the proceedings which has been dismissed by this Court. He contended that this indicates that there is some material evidence against the applicant. He has further contended that there are letters available with prosecution, which sufficiently connect the applicant with the offence and establish a link with Aslam, Masih on telephone. Learned Special Public Prosecutor read out the contents of the letters before the Court, which show that there has been link between the applicant and co-accused Aslam Masih on telephone. He has further submitted that the applicant accused is not entitled for the concession of bail as there is bar for grant of bail to the accused who is involved in case punishable with death as required under section 51 of Control of Narcotic Substances Act. He has opposed the grant of bail to the applicant.
5. We have heard the learned counsel for the applicant and learned SPP for ANF/State and have given our anxious consideration to their submissions and have also examined the material available on record. Admittedly, the Applicant moved Criminal Miscellaneous Application No.67 of 2000 before this Court and the said application for quashment of proceedings has been dismissed by this Court on 30th May, 2000. The applicant is alleged to be on suspect list of Anti-Drug Force of U.S.A. And the proof of recorded conversation between him and the culprit namely Aslam Masih hauled up in Houston U.S.A. From whom recovery of 1.5. Kgs. Of Heroin as supplied by the applicant.
6. In these circumstances, we do not feel inclined to grant bail to the applicant. The case law referred to by the applicant is in distinguishable circumstances. Resultantly this bail application is dismissed with observation that the trial Court shall make all possible endeavours to conclude the trial within next two months.