1. ' MUHAMMAD AFZAL SOOMRO, C J.---Applicant Muhammad Essa has approached for bail in Crime No, 22 of 2003 under sections 9(c), 14 and 15, C.N.S. Act, 1997 registered at Police Station A . N. F .
2. Clifton.
3. ' The facts succinctly stated are that a secret information was received that a huge quantity of narcotics is going to be smuggled from Karachi to London through Flight No,PK-787. On this information S.I. Along with Inspector Khaliluddin, A.S.-I Shakeel Ahmed, A.S.I. Nasir Ahmed P.C.
4. Saleem Ahmed, H.C. Muhammad Hassan, P.C. Muhammad Yayat Niazi, P.C. Lal Wazir etc., along with spy informer reached at Quaid-e-Azam International Airport, Karachi at 5-00 a.m. And started secret watch of International and Domestic departures from outside. At 8-30 a.m. One person having black coloured trolley bag in his hand was seen going towards A.S.F. Control Room. The spy pointed out that man as Muhammad Esssa alias Shah Muhammad alias Shah Khan who has brought narcotics, which would be smuggled to foreign country through A.S.F. Company Commander Muneer Rajput. The person entered in A.S.F. Control Room and after some time he came back with empty hands and went towards parking area, whereupon Inspector Khaliduddin had directed the complainant to follow that person along with A.S.-I. Shakeel Ahmed. H.C.
5. Muhammad Hassan Koharo and PC Muhammad Hayat Niazi, where upon the said person was chased and reached the parking area. The person boarded vehicle Honda Civic No,AB-5763 and went out from Airport and he was chased and that person proceeded towards Malir and from Quaidabad roundabout he turned back to Airport and after crossing the railway track he stopped his vehicle on left side in open ground and stayed in the vehicle. In the meanwhile a call on mobile of the complainant was received that from Airport heroin weighing 3200 grams has been recovered from A.S.F. Official which had been supplied by accused Muhammad Essa in black coloured trolley bag. On this information that person was caught with the help of other officials. The said person told his name as Muhammad Essa alias Shah Muhammad alias Shah Khan son of Haji Faqeer Muhammad, On his personal search two mobile sets visiting cards, Rs,700 and five thousand Euro and wrist 5 bags of Charas packed in shopping bags watch were recovered. The samples of 100/100 grams from each slab was sealed. During interrogation he confessed the crime.
6. The learned counsel for the applicant contended that before lodging the present F.I.R. No,22 of 2003 the prosecution had lodged F.I.R. No,21 of 2003 which is the main case, thereafter the accused was shown to have been arrested in this case from a ground near wireless gate and 5 Kgs. Charas was allegedly recovered from his car. He contended that the initial story in the main case has turned out to be false as all the accused have been acquitted vide judgment dated 4-11-2006 passed by the Special Judge, C.N.S., Karachi; that the witnesses in the main case have not been believed and false story has been repeated in the present case; that the prosecution itself is not sure when and at what place accused Muhammad Essa was arrested as according to Mashirnama the arrest of the present accused in F.I.R.No,22 of 2003 is shown on 11-7-2003 at 0950 hours from inside International Departure Lounge of Karachi Airport in the main case (F.I.R.No,21of 2003), while in the present case accused is shown to have been arrested from a ground near Wheless, which creates doubt; that since the accused/applicant was already arrested by A.N.F. Official from International Departure Lounge of Karachi Airport on 11-7-2003 at 0950 hours, his subsequent arrest from wireless gate on the same day is not possible and therefore the case requires further inquiry; that in the first remand report pertaining to F.I.R. No,21 of 2003 four accused including applicant Muhammad Essa were produced before the learned Magistrate for remand in which all four accused were shown to have been arrested from International Departure Lounge of Karachi Airport; that Hulia form Exh.P/10 in case Crime No,21/03 indicates that applicant was alleged to have been arrested on 11-7-2003 at 0953 hours. He further contended that the letter addressed to DD
(law) A.N.F. Sent by Sub-Inspector (Complainant) clearly indicates that in the above case on 11-7- 2003 arrested accused persons from QIAP and sought police custody remand for the accused persons from the competent court and name of the applicant appeared at Sr.No,3; that Inspector Jehangir Khan (complainant) has admitted that in the hulia form time of arrest of accused Essa Khan/applicant is given 9.53 a.m. On 11-7-2003. The trial Court held that this also creates doubt in their fair and honest investigation of this case and benefit of which is to go to the accused, in his cross-examination he stated that in the first remand report Exh.8, time of arrest of accused Essa Khan is shown as 9-53 a.m. On 11-7-2003 from International Departure Lounge. Trial Court held that this again has falsified the prosecution case and created dent in the truthness of the prosecution story, that the applicant has enmity with Inspector Jehangir Khan (complainant) who in his cross- examination has stated that he does not know if he has a cousin by name Dr. Ainuddin in Quetta when it is a case of defence that Ainuddin had murdered cousin of Essa Khan and as a result of which he was convicted and hanged in Muchh Jail Balochsitan. Copy of F.I.R. No,135 of 1991, Police Station Civil Line Quetta is on the record. This question was also put in his cross-examination and the trial Court held that merely by his statement that he does not know if he has got a cousin by name of Ainuddin this plea of defence automatically becomes acceptable otherwise he straightaway would have denied that he has no cousin by name of Ainuddin, therefore, his enmity with Essa Khan/applicant stands proved as held by the learned trial Court in para.32 of its judgment.
7. ' The learned counsel for the applicant/accused has also sought shelter from the judgment of the trial court acquitting all the accused involved in the case Crime No,21 of 2003 including the present applicant. It is contended that the prosecution has shown five kgs of Charas in the instant case which was alleged to have been recovered from the car not from the possession of the applicant who is in continuous custody from 11-7-2003 and has been acquitted in the main case and if the applicant would have been convicted in the false and manipulated case the maximum punishment would have been up to 4/5 years for which he has already undergone.
8. ' The learned Special Prosecutor has vehemently opposed the bail by contending that the accused is involved in heinous offence and is in the company of notorious criminal and is not entitled to the concession of bail.
9. ' I have heard the learned counsel for the parties, perused the judgment in the main case and have scanned the other material available on record with the assistance of the learned counsel for the parties.
10. It is proved that the complainant has arrested the applicant/accused from the International Departure of Airport on 11-7-2003 at 9-53 a.m. Whereas nothing has been recovered from his possession Crime No,21 of 2003 which case ended in acquittal including the present applicant. The trial Court held the prosecution case as false and directed the D.G. A.N.F. To take action against A.N.F. Applicant Muhammad Essa was already arrested by A.N.F. Officials from International Departure of Karachi Airport on 11-7-2003 at 9-53 a.m. Therefore, his subsequent arrest in the present F.I.R. From a ground near Railway crossing wireless gate Shahra-e-Faisal Karachi on the same date creates doubt and requires further inquiry. In the first remand report in F.I.R. No,21 of 2003 four accused including the present accused were produced before the learned Magistrate for remand in which also it was shown that all four accused have been arrested from International Departure Lounge of Karachi Airport. Prosecution has shown five kgs. Of Charas in the instant case which was alleged to have been recovered from the car not from the possession of the applicant who is in continuous custody from 11-7-2003 and has been acquitted in the main case. In the case reported in 2000 PCr.LJ 657, the Full Bench of this Court held that the case of accused fell under section 9(c) of the C.N.S. Act, 1997 as the quantity of narcotic substances recovered from him exceeds one kg. And did not exceed 10 kg. Vast difference existed in alleged recovery of narcotics. It was further held that embargo on grant of bail contained in S.51(1) C.N.S. Act, 1997 did apply to the case of applicant and the allegations made against him required further enquiry as contemplated by section 497(2), Cr.P.C. And accused was admitted to bail in the circumstances. In another case reported in 2005 PCr.LJ 1080 a Division Bench of this Court held that entire quantity was not sent for chemical analysis and weighment etc. To confirm whether or not the weight of alleged recovered Charas was of one kg. Or less, case being for further inquiry entitling accused to concession of bail and accused was admitted to bail. In 1995 SCM R 1345 it was held that for granting benefit of doubt to accused it is not necessary that there should be many circumstances creating doubts, if a simple circumstances creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.
11. In view of the above discussion, the applicant/accused Muhammad Essa is granted bail in the sum of Rs,500,000 with P.R. Bond in like amount to the satisfaction of the trial Court.