' ALI SAIN DINO METLO, J.--- Heard arguments and perused the record.
2. According to the prosecution, on 23-2-2008, at about 2015 hours, Anti-Narcotic Force, intercepted four passengers, namely, Syed Muhammad Sarwar, Muhammad Rasheed Tahir, Allah Ditta. Saqib and Mst. Samina, at the International Lounge of Jinnah International Airport, Karachi.
They were leaving for Kualalumpur, Malaysia, by Flight No,MH-161 of Malaysian Airline. Heroin, weighing 50 kilograms, concealed in five suitcases, was recovered from their baggage. Applicant Muhammad Akram, an Inspector of Airport Security Force and co-accused Gul Mir, Sub-Inspector of the same Force, were found helping them in their attempt to smuggle out the heroin. Each of them was carrying a suitcase containing 10 kilograms of heroin. It is stated that a Deputy Assistant Director of the Force, namely, Ejaz Ali, was also there, and according to the prosecution, Muhammad Akram and Gul Mir were helping the passengers at his instance and he would have further helped them in the clearance of their baggage.
3. This Court granted bail to Ejaz Ali on the ground that he was not found in possession of heroin and except for the inadmissible confessional statement of co-accused Gul Mir and applicant Muhammad Akram before the Investigating Officer there was nothing to show that he had helped or would have helped the passengers in the commission of the offence.
4. The trial Court granted bail to Gul Mir on the ground that role was identical to that of Ejaz Ali but refused bail to Muhammad Akram on the ground that his role was different.
5. The learned defence counsel has argued that roles of Gul Mir and Muhammad Akram were identical and, therefore, the trial Court should have granted bail to applicant Muhammad Akram also.
6. The roles of applicants Muhammad Akram and Gul Mir are more or less identical. Each of them was carrying a suitcase containing 10 kilograms of heroin. The only difference is that Gul Mir had handed over the suitcase to accused Mst. Samina just at the time of his arrest, while applicant Muhammad Akram was still having the suitcase with him. This hardly makes any material difference.
7. The case of accused Ejaz is different from the case of Akram and Gul Mir in the sense that the former was not found in possession of heroin at any time.
8. It is also not the case of applicant Muhammad Akram or Gul Mir that the passengers were their relatives or friends and they had gone to see them off and were carrying their baggage in courtesy and good faith without knowing about their contents. Their case is of complete denial. Even otherwise, according to section 29 of the Control of Narcotic Substances Act, 1997, presumption will be that they had B committed the offence. No doubt the presumption is rebutable but for that the burden will be upon them to show that they had not committed the offence.
9. Learned counsel for the applicants pointing out some minor discrepancies, argued that prosecution witnesses were not safe to be relied upon. Suffice it to say that deeper appreciation of evidence is not required to be made at bail stage. Prima facie, there is sufficient evidence to connect the applicants with the commission of the crime.
10. There is also no force in the contention of learned counsel for applicant Mst. Samina that she is entitled to bail under fourth proviso to section 497(1) of the Code of Criminal Procedure, 1898, as section 51(1) of the Control of Narcotic Substances Act, 1997, provides that notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898, bail shall not be granted to an accused person charged with an offence under the Act or under any other law relating to narcotics where the offence is punishable with death; and according to section 51(2) ibid in other cases also bail shall not be normally granted unless the Court is of the opinion that the case is fit for the grant of bail.
11. In the case of Gul Zaman v. The State 1999 SCM R 1271 decided on 18th December, 1998, by a three member Bench of the Supreme Court, bail was granted to Gul Zaman, as nothing incriminating was recovered from him and in the opinion of the majority reasonable grounds were not there to connect him with the commission of the offence. Besides, the offence was committed under the Control of Narcotic Substances Ordinance, 1995, in which there was no bar for the grant of bail.
12. In the present case there are reasonable grounds to believe the applicants guilty of the offence and the bar contained in section 51(1)IE (ibid) is fully attracted.
13. In Criminal Petition No,53-K of 1998 re: State v. Mobin Khan, decided on 9th April, 1999, unanimously by another three member Bench of the Supreme Court, bail granted to Mobin Khan by the High Court of Sindh on the ground of statutory delay in the conclusion of the trial was cancelled by the Supreme Court. Paragraph 12 of the order, authored by Ajmal Mian C.J., reads:- "12. We are, therefore, inclined to hold that in view of the above quoted subsection (1) of section 51 read with clauses (b) and (c) of section 9 of the Act, the third proviso to section 497, Cr.P.C. Cannot be pressed into service in a case in which the quantity of narcotic drug or psychotropic substance or controlled substance exceeds one kilogram and which may entail, inter alia, death sentence."
' The decision in Mobin Khan's case, being later in time and unanimously decided by an equal Bench, is binding. In the light of the said decision bail cannot be granted to applicant Mst. Samina under fourth proviso to section 497(1), Cr.P.C. Added by the Code of Criminal Procedure Second Amendment Ordinance, 2007.
14. In view of above, the case is not fit for the grant of bail to applicants Muhammad Akram and Mst. Samina and their bail applications are dismissed. Prima facie, the trial Court has granted bail to Gul Mir by misapplying the principle of consistency. Therefore, notice is directed to be given to him to show cause why his bail should not be cancelled.