1. ' SYED MAHMOOD ALAM RIZVI, J.---The learned Advocate for 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 applicant was turned down vide order dated 14-3-2008.
2. ' Precisely, the facts of the case are that the applicant, with her cousin Amjad Taqi were caught hold of on 18-12-2007, while they were travelling in a car. Charas weighing 11.5 kgs and 8 cans of 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, the challan has been submitted on 4-1-2008 against the accused persons in which Musafir Khan and Asif were shown as absconders.
3. ' Mrs. Saleha Naeem, learned counsel for the applicant contended that this was an absolutely false case, registered with mala fides and ulterior motives. The applicant is the General Secretary of Pakistan Peoples Party, Women Wing, District Central and was annexed a certificate issued by Razia Butt, the President, Women Wing, District Central issued on 4-2-2008. She claimed that on 17- 12-2007 A.N.F. Officials raided the house of the applicant and arrested the applicant and in support thereof she has filed affidavits of Ali Muhammad, Allah Rakhia, Ghulam Mohiuddin and Abdul Wahid. She further stated that no private person has been made as a mashir of arrest and recovery, which is also in violation of section 103, Cr.P.C., lastly, she contended, that being a lady, as per Ordinance No,XXXV of 2006, she was entitled to bail. She relied upon the cases of Khalida Akram v. The State SBLR 2007 YLR 875 and Zulfiqar Ali v. The State 2007 YLR 2620.
4. ' Conversely, Mr. Syed Ashfaq Hussain Rizvi, Spl. Prosecutor A.N.F., contended that huge recovery has been effected from both the accused amounting to 11.5 kgs, Charas and such a recovery cannot be foisted upon her. That section 103, Cr.P.C., is not applicable in the C.N.S. Act, 1997, and further, that regarding the filing of affidavits by private persons to the effect that the applicant was arrested from his house at 10-30 a.m. On 17-12-2007, firstly, was not supported by any other documents.
5. Being the Secretary of PPPP, Women Wing, District Central, she obviously was a famous and sociopolitical woman and practically it was impossible that she had been arrested during the campaign of the elections. If she had been detained illegally by any agency the matter could have been reported to the nearest police station or before the high-ups, but no such proof has been annexed with the bail application, which clearly stipulates that the same was an afterthought. He further contended that regarding the Ordinance No,XXXV of 2006, by virtue of which the lady is entitled to bail. However, as per third proviso of the Ordinance, if the lady is involved in a case of capital offence then she may be released after a confinement of six months subject to the findings of the trial Court that the delay has not been attributed by the applicant. Regarding the judgment cited by the learned counsel for the applicant i.e, SBLR 2007 Sindh 1116, he admitted that the ANF has not challenged the same before the Honourable Supreme Court so the judgment has attained finality, but even then in that judgment the bail was not granted to the lady accused keeping in view the circumstances already mentioned in the said judgment, so he is opposed to the giant of bail.
6. ' Heard both the lawyers and perused the record.
7. ' It is an admitted position, that 11.5 kgs, Charas was recovered from the car in which the accused and her cousin were travelling. Regarding the false involvement of the lady that due to political difference she has been booked in this case and particularly, the affidavits have been sworn by the residents of the area that she 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 her defence. These affidavits cannot be entertained at the bail stage when no legal document is available. To show that the lady was in illegal custody. Admittedly, neither any F.I.R., nor complaint was preferred regarding her alleged illegal detention, particularly, when the applicant was a political activist and was General Secretary of the PPPP Women Wing, District Central, I am also in agreement with the contention of the learned prosecutor that section 103, Cr.P.C. Were not applicable to the C.N.S. Act. Prima facie, the case is made out under section 9(c) of the C.N.S. Act, but regarding the Ordinance No,XXXV of 2006 Mrs. Saleha Naeem contended that now the same has been approved by the Assembly and has become an Act, so it is applicable. However, the proviso clearly stipulates that a lady, if involved in a heinous crime, has to prove that she was behind the bars for six months without trial and the same has already been discussed in Khalida's case (supra). This Court has held that the Ordinance is applicable even in C.N.S. Act, but the applicant has to move the trial Court first regarding the third proviso of the Ordinance. The impugned order was passed on 14-3-2008 and in the impugned order nothing has mentioned about the said Ordinance, while the Advocate for the applicant contended that in para. 3 of her bail application she has claimed bail under section 497(1), Cr.P.C.
8. As well as Ordinance No,XIII of 2006, but the same has not been discussed. In the impugned order regarding proviso to subsection (1) of section 497, Cr.P.C., the same has been discussed, but as the Ordinance No,XIII of 2006 has elapsed, perhaps due to this reason the learned trial Judge has not discussed the same. Be that as it may, on merits, I am not inclined to grant bail to the applicant as apparently, she with her cousin, was arrested with a large quantity and same is substantiated by the chemical report. In the above circumstances, I am not inclined to grant bail. The impugned order is proper and needs no interference.
9. ' 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 two weeks from the receipt of this order and examine the material witnesses within three months. With the above directions this application is dismissed.
10. However, the applicant may repeat the bail application under the new Ordinance.