1. ' SYED MAHMOOD ALAM RIZVI, J.---The applicant has impugned the order of the learned Special Court No,1, C.N.S., Karachi, passed in Special Case No,1 of 2008 whereby the bail application .Of the accused/applicant was turned down vide order dated 18-4-2008.
2. ' Precisely, the facts of the case are that the accused/applicant, with his cousin Phaphan was caught hold of on 18-12-2007, while they were travelling in a car. Charas weighing 11.5 kgs and 8 cans of Mary Classic Alcohol were recovered from their possession. The A.N.F. Registered the case under section 9(c) of Control of Narcotic Substances Act, 1997, vide F.I.R. No,5 of 2007. Thereafter, a separate challan has been submitted under Articles 3/4 of the Prohibition of E.H.O., 1979, against the applicant besides the challan under section 9(c) of the Act.
3. ' Mr. Aziz-ur-Rehman Akhund, learned counsel for the applicant contended that the matter required further inquiry because the prosecution itself filed separate challan under Articles 3/4 of E.H.O., 1979, that no Charas was recovered from the accused and only Mary Classic Alcohol was said to have been recovered from his possession. He further contended that he was in illegal detention since 17- 12-2007 along with his cousin, the co-accused Mst. Fatima alias Phaphan. The complainant is the Investigating Officer, which also required further inquiry. Furthermore, some affidavits have been sworn by the residents of the area to the effect that the applicant was already in illegal detention 36 hours prior to the said recovery shown in the F.I.R.
4. ' Conversely, Mr. Syed Ashfaq Hussain Rizvi, learned Spl. Prosecutor, A.N.F. Opposed the bail application and contended that a huge amount of Charas was recovered from joint possession of the lady and the applicant, who were also cousins. And regarding the illegal detention, neither had any document been produced to suggest that they were in illegal custody of the A.N.F., nor was the matter reported to the area police, or was any sort of application sent to the high-ups of the police or the A.N.F. On the same day. Regarding the separate challan under E.H.O., 1979, the same was legal and proper. He further contended that the complainant can investigate the case, and a prima facie case is made out.
5. ' Heard both the lawyers and perused the record.
6. ' Prima facie, a huge recovery has been effected from the joint possession of the accused/applicant and the co-accused. No ill-will has been mentioned against the complainant, who also acted as Investigating Officer. By filing separate challan under E.H.O., 1979, the applicant has not been exonerated in this case, and as regards the complainant who has conducted the investigation, the same point was raised before the Honourable Supreme Court in a case reported in PLD 1997 SC 408 in which the apex Court had held that the complainant can investigate the case particularly, in a case of recovery. As regards the affidavits sworn by the residents of the area that the applicant was already in illegal detention 36 hours prior to the said recovery shown in the F.I.R., I am in agreement with the learned Spl. Prosecutor A.N.F. That the said persons may appear for the accused/applicant at the stage of his defence. These affidavits cannot be entertained at the bail stage when no other document was available to show that the accused/applicant was in illegal custody. Admittedly, neither any report nor a complaint was preferred about his illegal detention. In the above circumstances the impugned order is proper and needs no interference.
7. ' The learned trial Court is directed to bifurcate the case from the co-accused and frame the charge by calling the accused in Court within one week from the receipt of this order and proceed with the case as well as examine the material witnesses within three months. In the above terms this bail application is dismissed.