1. ' Dr. RANA MUHAMMAD SHAMIM, J.---This bail application was directed against the impugned order, dated 10-9-2008 in Special Case No,131 of 2007 passed by the learned Judge Special Court No,1 (C.N.S.) Karachi. The applicant is facing trial for offence under. Sections 9(c), 12, 13, 14 and 15 of Control of Narcotic Substances Act, 1997 registered at P.S. ANF II Karachi vide Crime No,73 of 2007.
2. The applicant seeks bail on the following facts and grounds:-- ' Brief facts of the case are that on spy information that international drug smugglers Haji Miandad Khan and Haji Mursaleen through their workers/agent Zamray Khan and Bazz Muhammad are going to smuggle heroin to London in carpets, the officials of ANF took the custody of carpets nine from TNT office, where the same were brought for sending the London. On search of the carpets heroin was found to be concealed in very thin pipes wrapped in the carpet in very skilled manner.
3. The heroin was derived from the carpets and it was found 600 grams in each carpet, making the total heroin recovered to be 5.400 Kilo grams. Thereafter on 31-10-2007 the accused persons were arrested from Bus Stand Haji Camp, Peshawar and the F.I.R. Was lodged.
4. ' Learned counsel for the applicant has contended that the applicant is innocent and has falsely been implicated in the case; that there is delay of 26 hours in lodging the F.I.R., which is unexplained; that neither any contraband narcotics substance has been recovered from the possession of the applicant nor on his pointation; that co-accused Haji Mursaleen (in Bail Application No,260 of 2008) and Zamray Khan (in Bail Application No,389 of 2008) have already been granted bail by the Hon'ble Chief Justice of this Court Mr. Justice Muhammad Afzal Soomro (as he then was) hence in the line with the rule of consistency the applicant is also entitled to the same treatment; that no independent person has been associated to witness the recovery even despite the fact that they had received spy information well in advance; that even the booking clerk of TNT Saddar Branch, where the carpets were recovered, has not been made a mashir of recovery; that since there is violation of section 103, Cr.P.C. The applicant is entitled to the grant of the concession of bail; that only 5 grams of heroin has been sent to chemical examiner which makes the prosecution case doubtful and in circumstance at the best the provisions of section 9(a) of the CNS Act, 1997, hardly attracted in the present case, as has been held by this Court while granting bail to co-accused; that the investigation is complete and the applicant is no more required for the purpose of investigation.
5. ' On the other hand learned Special Prosecutor ANF has opposed the grant of bail. He contended that the applicant is named in the F.I.R. With specific role attributed to him being agent of international smugglers namely Haji Miandad Khan and Haji Mursaleen; that as per Manager TNT present application booked the consignment of carpets who at the time of booking of the carpets produced his original NIC, the photocopy of his CNIC was retained as record. Subsequently from the said carpets heroin was recovered; that in view of section 25 of CNS Act, 1997, the provisions of section 103, Cr.P.C. Were excluded, further the local people do not come forward to become witness of search in narcotic cases; that the police officials available at the place of recovery are as good witnesses as other witnesses; that the sample of 5/5 grams from each packet containing heroin powder were drawn, duly sealed for chemical examination; that section 51 of CNS Act, 1997 bars the grant of bail in narcotics cases as the punishment provided under 9(c) is death, life imprisonment or 14 years. Learned counsel supports the impugned bail order passed by the learned trial Court relying upon the case of Mobin Khan v. The State reported in 2001 SCMR 299. He further contended that the earlier to the accused Haji Mursaleen in Criminal Application No,260 of 2008 and Zamray Khan in Criminal Bail Application No,389 of 2008 by the then Hon'ble Chief Justice (as he then was) in the same crime is also not tenable as the same has been granted on the facts and ground not available on record. That even the charge has not been framed against the accused. He further contended that the samples of 5/5 grams each were drawn from each recovered packets for sending to chemical examiners which were duly sealed. This Court While granting bail has erred while holding that only sample 5 grams was drawn and sent for chemical examination and such fact is not available in F.I.R. And musheernama. The bail was wrongly granted holding that the case of the prosecution falls under section 9(a) of CNS Act, 1997 and not under section 9(c) of the Act. He submits that no ground for granting bail was available at that time, which is liable to be reviewed under section 561-A, Cr.P.C. And/or under Article 199 of the Constitution.
6. ' I have heard learned counsel for the applicant and as well as learned Special Prosecutor ANF and with their assistance has perused the material available on record.
7. ' The name of the present applicant is mentioned in the F.I.R. With specific role attributed to him. He was the person who booked the consignment containing carpets in which more than 5 Kilo grams of heroin powder was concealed and recovered by A.N.F. He has conscious knowledge of such concealment of huge quantity of heroin powder in the said carpets. The samples of heroin powder were rightly drawn and the Hon'ble Chief Justice Mr. Muhammad Afzal Soomro (as he then was) has erred in holding that only 5 grams were drawn and sent for chemical examination. The narcotics police has unearthed a racket involved in heroin smuggling and recovered huge quantity of heroin powder duly concealed in carpets. The case against all accused attracts the provisions of sections 6, 7 and 8 punishable under section 9(c) of the Act for which the punishment is provided to death, imprisonment for life or 14 years. The contention of learned counsel for the applicant that provisions of section 103, Cr.P.C. Have been violated has also no force in view of the fact that in narcotics cases the same is excluded under the provisions of section 25 of the Act, in support thereto the learned Special Prosecutor relied upon cases reported in PLD 2001 Quetta 5, 2005 PCr.LJ 1558, PLD 2008 Kar. 374 and 2003 SCMR 573. I agree with learned Special Prosecutor ANF that section 51 of the Act bars the grant of bail as held in cases reported in 2001 SCMR 299 and 2002 SCMR 1837. In both the cases the Hon'ble Supreme Court declined bail to the petitioner as section 51 of the Act bars the grant of bail.
8. ' In view of the above the applicant is not entitled to the concession of bail. Accordingly, this bail application is dismissed.
9. ' Before parting since I have observed that police has unearthed a racket involved in heroin smuggling and foiled their such attempt and recovered more than 5 KGs of heroin powder from the conscious possession of all the accused. In my humble view the to the co-accused Haji Mursaleen and Zamray Khan in Bail Applications Nos.260 and 389 of 2008 respectively by Hon'ble Chief Justice Mr. Muhammad Afzal Soomro, (as he then was), is against the facts and material available on record, the provisions of section 51 of the Act and principles laid down by the Hon'ble apex Court in their judgments. Both the above co-accused who were granted the bail and the present applicants are involved in the same crime and their case falls under section 9(c) of the Act, who are not entitled for bail. The case-law relied upon in the said bail orders passed in the earlier bail applications i,e, Muhammad Hashim v. The State (PLD 2004 SC 856) is distinguishable from the instant case as in that case 288 rods of charas were recovered and nothing has come on record to show as to whether from each rod sample was drawn and sent for chemical examination while in the present case it is specifically stated in the F.I.R., musheernama and the statement of musheers of recovery recorded under section 161, Cr.P.C., that from nine carpets heroin was recovered and the same were kept in separate bags and from each bag 5/5 grams of sample was drawn, duly sealed for chemical examination purpose. It is not understandable from which document it was determined that only 5 grams heroin powder was drawn as samples and sent the same to chemical examiner. The view taken, while granting bail to the two accused from whose conscious possession and knowledge more than 5 Kilo Grams of heroin powder was recovered then how the case falls under section 9(a) of the Act is not tenable.
10. ' In view of the above the bail in Bail Applications Nos.260 and 389 of 2008 granted to accused Haji Mursaleen and Zamray Khan by the Hon'ble Chief Justice Mr. Muhammad Afzal Soomro (as he then was are liable to be cancelled. Let the notice to the said applicants/accused be issued through ANF as to why their on 24-3-2008 and 17-4-2008 respectively may not be cancelled.
11. ' To come up on 20-10-2008 and to be fixed according to roster.
12. Bailed refused