' Petitioner seeks post-arrest bail in case F.I.R. No,09/2001, registered at Police Station, ANF, Multan under section 9(c) and 15 of C.N.S.A., 1997.
2. Allegation against petitioner is that he is member of a gang which deals in international smuggling of narcotics and on raid by A.N.F., 5500 K.g of Charas was recovered which was stocked in House No,2, Allah Bakhsh Colony, Shamsabad, Multan and was being packed in cartons by his five co-accused. Raid was conducted on spy information that members of aforesaid gang are present in the said house with huge quantity of Charas for the purpose of smuggling it abroad.
3. Petitioner's first bail application was dismissed by the trial Court on 16-4-2003, his second bail application was dismissed by the said Court on 25-10-2003. Bail application of his co-accused Haji Noor-ul-Islam with similar role was dismissed by High Court on 3-7-2003, Cri. Petition No,301 of 2003 filed by the said co-accused was dismissed by the Honourable Supreme Court on 20-1-2004 with the observation that trial Court is required to finalize the proceedings within four months preferably conducting the same on day to day basis provided no hindrance is caused by accused side, failing which, the petitioner would be at liberty to move for the sought for relief afresh before the Courts concerned.
' Crl. Miscellaneous No,2008-B of 2003 filed by the petitioner was withdrawn vide order dated 11-2- 2004 wherein High Court had observed that "it is hoped that the trial Court shall conclude the trial in the light of directions of apex Court, failing which, petitioner would be at liberty to move afresh".
4. Learned counsel for petitioner did not argue the case on merits but seeks bail on the sole ground of delay in view of the observations made by High Court vide order dated 11-2-2004 and the apex Court vide order dated 29-1-2004. It is urged that F.I.R. Was lodged on 27-11-2001 but the recording of prosecution evidence has not yet commenced, further submits that delay in the trial was not occasioned by any act or omission on the part of petitioner, further submits that Honourable Supreme Court while refusing bail to co-accused Noor-ulIslam had required the trial Court to conclude the trial within four months, that time period granted by the apex Court has elapsed without any progress in recording prosecution evidence hence petitioner has become entitled to the concession of bail on that score. Reliance was placed by the learned counsel on the following caselaws:--
(1) Muhammad Aslam v. The State 1999 SCM R 2147;
(2) Behram v. The State 2003 PCr.LJ 73;
(3) Shaukat Ali v. Ghulam Abbas and others 1998 SCM R 228;
(4) Samundar Gul and another v. The State 1984 PCr.LJ 626;
(5) Ch. Zulfiqar Ali v. The State PLD 2002 SC 546;
(6) Anwar Ali and another v. The State 2002 PCr.LJ 186 (Karachi)
(7) Muhammad Rafique v. The State PLJ 1975 Cr.C. (Lah.) 339.
5. Bail petition is strongly opposed by the learned State counsel.
6. We have heard the arguments, record, annexures appended with the petitioner and the Authorities referred by the learned counsel for the petitioner have also been perused.
7. From a perusal of copy of the order-sheet of trial Court which is annexed, it is evident that when the trial was ordered to be commenced, record of trial Court was summoned by High Court in connection with a writ petition filed by a co-accused and it was returned to the trial Court on 16-3- 2004; Wakalatnama was submitted by counsel for petitioner on 13-4-2004; on 26-4-2004, eleven P.Ws. Were present but they were not examined and the case was adjourned due to non- availability of counsel of co-accused; on the said date, petitioner's counsel had requested for a date in the first week of May as prior to that he was not available on account of his professional engagements; on the following date also, eight P.Ws. Were present but they could not be examined because request for adjournment was sent by counsel for co-accused, counsel for petitioner was also not present on the said date. On the following dates also, P.Ws. Were present but adjournments were sought either by the counsel for co-accused or the accused including petitioner on account of non-availability of their counsel. Counsel for petitioner as well as counsel for some of his co-accused were not present on 5-5-2004, 31-8-2004, 30-10-2004, 10-11-2004, 23- 11-2004 and 6-12-2004, proscution evidence was present on the said dates and could not be examined due to non-availability of the defence counsel.
8. From a perusal of the order-sheet, it is evident that delay in the trial was caused on account of the accused side and not due to any fault on the part of A prosecution. Although, on a few dates, some of the co-accused were not produced from the Jail but this lapse cannot be attributed to the prosecution.
9. We have gone through the authorities referred by the learned counsel for petitioner and we find that they are not applicable to the facts and circumstances of the present case. Most of the authorities referred above relate to murder or hurt cases.
' In the citation referred at Sr. No,1, despite direction of the High Court, trial against accused had not been concluded by the trial Court within the specified period and prosecution was unable to give any explanation for non-compliance of the said order. In the present case, delay was caused on account of the accused. '
' In the authority at Sr. No,2, charge was not framed for the last eighteen months hence in the circumstances, it was observed that period required for conclusion of trial was not difficult to be predicted.
' The authority at Sr. No,3 relates to a case of cancellation of bail, which was granted by the High Court on statutory ground of delay in commencement of trial which was occasioned by the complainant. The Honourable Supreme Court had declined to interfere. In the present case, statutory ground was not available neither complainant or the prosecution was responsible for the delay.
' In the authorities at Sr. Nos.4 and 5, it was held that when the delay in conclusion of trial is occasioned, neither on account of prosecution nor because of defence, accused are entitled to the concession of bail. In the present case, the accused side was responsible for the delay.
' In the authority at Sr. No,6, there was an inordinate delay of about two years in framing charge against the accused and delay had occurred due to no fault of the accused.
' In the last authority at Sr. No,7, the record reflected that throughout the inquiry proceedings, prosecution was remiss in not producing the witnesses in the Court whereas in the present case, witnesses of prosecution were almost present on most of the dates of hearing but they could not be examined on account of non-availability of defence counsel.
10. Mischief sought to be suppressed by C.N.S.A., 1997 is not just a crime against an individual but crime against society and criminal who indulge in narcotic business are to be dealt with sternly.
11. Vide order dated 20-1-2004 passed by the apex Court, trial Court was required to finalize the proceedings within four months provided no hindrance is caused by the accused side. We are of the considered view that delay in the trial was occasioned by acts or omissions on the part of accused side hence in view thereof petitioner is not B entitled to the concession of bail on the ground of delay, which ground was only pressed before us. Bail petition is accordingly dismissed.