'WAHID BUX BROHI, J.--- The applicant has sought bail in a case registered at Police Station A.N.F.
Clifton, Karachi for an offence punishable under section 9(c) of the Control of Narcotic Substances Act, 1997.
2. The case of prosecution, as per F.I.R. Lodged by complainant, Inspector Ghulam Abbas of P.S. A.N.F., Clifton, Karachi, is that on 10-5-2002 the complainant, during patrol, received a spy information that a Pakistani and a foreigner possessing huge quantity of narcotics were waiting for a conveyance. The complainant proceeded to the given spot and apprehended both of them including the applicant, who disclosed his name as. Raji, a Nigerian national. The complainant secured his Passport bearing No,A-1434656, used ticket of Shaheen Air, a wallet containing 100 Dollars, and wearing clothes etc. He was in possession of a black regzine bag which was searched and then cut on both sides. From the cavities heroin powder contained in envelopes was secured which weighed 7 Kgs., out of which 100 gms. Was separated and sealed for the purpose of chemical examination and the rest was sealed separately. The Pakistani accused disclosed his name Maqsood Ahmad. The seizure memo. Was accordingly prepared and the accused and property were taken to the police station where F.I.R. Was recorded.
3. We have heard Mr. Rana M. Shamim, learned counsel for applicant assisted by Ms. Munawar Sultana, Advocate and Mr. Mehmood Alam Rizvi, Special Prosecutor A.N.F. For the State and perused the material on record.
4. Learned counsel for applicant contended that the full name of the applicant is Luqman Raji Adewunmi, but while travelling by air his name was described as `Luqman' only and he was, in fact, arrested on 10-5-2002 at Karachi Airport at 10-00 p.m. By complainant Ghulam Abbas and no narcotic was secured from him. In this context he referred to the, passport of the applicant and the affidavit of applicant's wife. Additionally, reliance was placed on the copy of passengers list provided by PIAC to the Registrar of trial Court showing one Luqman as a passenger of Flight No,PK- 309 travelling on 10-5-2002 from Islamabad to Karachi. According to learned counsel, the story set up by the complainant that he apprehended the applicant from Muhammadi Market was belied by those documents. He further contended that despite advance information, the complainant did not associate any private and independent person to act as Mashir. The case, therefore, was of further inquiry and the applicant was entitled to grant of bail. Mr. Mehmood Alam Rizvi, learned Special Prosecutor, A.N.F. Submitted that from the letter dated 28-7-2003 of the concerned Consulate General, it transpired that there was fabrication in the passport. Secondly, the ticket of Shaheen Air was recovered whereas the applicant claims to have travelled through PIAC and moreover, the record of embarkation is also not traceable: He contended that according to F.I.A., the passenger travelled from Dubai to Lahore on 27-4-2002 by GF-760 and the affidavit of the wife of applicant instead of furnishing any explanation is confusing one. He contended that the provisions of section 103: Cr.P.C. Were not to be strictly applied in narcotic cases, as contemplated under section 25 of the Control of Narcotic Substances Act, 1997.
5. Learned counsel for applicant cited the cases: Muhammad Shafi v. Muhammad Anwar. 1975 SCMR 219, Gul Hassan Dero v. State 2000 PCr.LJ 657, Liaquat Ali v. State 2000 PCr.LJ 1317, Hadi Bux v.
State 2000 PCr.LJ 714, Amir Hayat v. State 1999 PCr.LJ 1529, Muhammad Yasin v. State 1999 PCr.LJ 1295, Muhammad Aslam v. State 1997 PCr.LJ 1736, Asif All v. State 2003 PCr.LJ 540, Tariq Bashir v.
State PLD 1995 SC 34 and Muhammad Hanif v. State 2003 SCMR 1237 in support of the bail plea. We have gone through these precedents, but we are. Of the view that they lend no support to the bail plea. In Gul Hassan's case 2000 PCr.LJ 657 one of the factors weighing with the concurring Judges of the Bench, on the basis, of which bail was granted, was that, according to case of prosecution 1500 grams Charas was secured, but the Chemical Examiner's report indicated that it was 1200 grams and regarding heroin the case, of prosecution was that 500 grams of heroin were recovered whereas the Chemical Examiner's report showed 400 grams.' Amongst others Gul Zaman's case 1999 SCMR 1271 was relied by one of our learned brothers in the cited case. As far Gul Zaman's case
(ibid) is concerned we are in full agreement with the learned counsel and it is therefore, that the bail plea is being examined in order to find out if a case of further inquiry is made out which would entitle the applicant to grant of bail.
6. In Hadi Bux's case 2000 PCr.LJ 714 bail was granted, inter alia, on the ground that there was delay in sending the specimen to Chemical Examiner and Mashirnama was not prepared at the time of recovery and the material in possession of prosecution did not make out a case punishable with death or imprisonment for life. The facts in the instant case are manifestly distinguishable.
7. In Liaquat Ali's case 2000 PCr.LJ 1317 bail was granted in a case of recovery of Charas on the ground of delay in conclusion of trial.
8. On the plea of alibi, learned counsel relied on Muhammad Shafi v. Muhammad. Anwar 1975 SCMR 219 wherein affidavits of 24 members of Provincial Assembly implying impossibility of presence of accused at the scene of occurrence were considered. In the cases of Amir Hayat v.
State 1999 PCr.LJ 1529, Muhammad Yasin v. State 1999 PCr.LJ 1295 and Muhammad Aslam v. State 1997 PCr.LJ 1736 bail was granted by learned Single Judge on the ground that final challan was not filed within time prescribed under section 173, Cr.P.C.
9. In Asif Ali's case 2003 PCr.LJ 540 the accused was admitted to bail, inter alia on the ground that despite advance information no efforts were made to associate independent private witnesses.
Further, Aslam Khan's case 1999 .PCr.LJ 582 relates to cancellation of bail and is, as such, not applicable. Tariq Bashir's case PLD 1995 SC 34 was referred to on the ground that identity of the accused was one of the factors to be considered by the Court, while deciding the application for bail. It was also argued in view of the rule laid down in Amir's case PLD 1972'SC 277 that for the purpose of bail law is not to be stretched, in favor of prosecution, but benefit of doubt, if any, arising, is to be extended to the accused. In rebuttal learned Special Prosecutor, A.N.F. Referred to the provisions of section 25 of the C.N.S. Act and submitted that the provisions of section 103, Cr.P.C.
Are not applicable to this case' and in this behalf he relied on Muhammad Hanif's case 2003 SCMR 1237.
10. A perusal of the documents relied in support of the application shows that the flight record of Flight No,PK-309 of 10th May, 2002 simply mentions the name Luqman as a passenger. In this context, learned Special Prosecutor A.N.F. Rightly pointed out that the air ticket, which was in possession of the applicant, was of Shaheen Air International. Nevertheless, we are of the view that the name Luqman by itself was not enough to establish that the said passenger was none else but the applicant, and it requires further evidence to establish the plea at the trial that the applicant travelled through the said flight.
11. The question raised about applicant's identity through' the passport and other documents would require deeper appreciation of evidence which we would refrain from at this stage. Affidavit of the wife of applicant can better be considered by the trial Court in that behalf. Similarly, non- association of private and independent witnesses by itself is no ground for bail, particularly when it is said that efforts were made for procuring persons from public, but they declined. The delay in submission of challan within the period prescribed under section 173, Cr.P.C. Although has been accepted as a ground for bail in the cited cases, but we have not been able to subscribe to the aforesaid view when there is prima facie sufficient evidence to connect the applicant with the offence of possession of 7 Kgs. Of heroin.
12. For all these reasons we are of the view that the bail plea is without merits; and resultantly the application is dismissed.