1. ' MUHAMMAD AFZAL SOOMRO, C.J.---Applicant Sardar Ibrahim has been involved in F.I.R. No, 7/2006 under section 9-C of C.N.S. Act, P.S.ANF Ghulshan-e-Iqbal.
2. ' The facts in brief as per the prosecution are that on spy information about smuggling of huge quantity of Charas by the applicant the ANF staff stopped a vehicle and arrested the applicant and two other persons sitting in the vehicle. On search of the, vehicle 10 Nylon bags were recovered with light silver colour. On further opening of bags 40/40 fold packing were found. In all 400 kgs Charas was recovered. Accused were arrested and led to Hub City near Dost Hotel, who point out two persons standing outside the hotel who seeing the police ran away while firing.
3. ' Learned counsel for the applicant contended that the applicant's involvement in huge quantity of Charas is false and based on ulterior motives as he was not arrested from the place mentioned by the prosecution but he actually arrested from a room of Dost Hotel at Hub City Balochistan; that the said incident was reported in different news papers published on 1st August, 2006; that the applicant was present in the said Hotel along with his elder son Muhammad Karim who reported the incident to P.S. Hub; that the S.-I./S.H.O. Police Station, Hub Muhammad Ishaq Lasi also reported the said incident in Roznamcha No,39 dated 31st July, 2006 in which he disclosed that some of persons belonging to Agency arrested some of people from Dost Hotel. He tried to approach the said Hotel but he was restricted by law enforcing agencies; that the allegation against the applicant is that he was sitting on the driving seat of the vehicle from which alleged recovery was made; that even the challan shows that the prosecution has not collected any material evidence to connect the applicant with the alleged recovery as no independent mashir has been taken; that the said vehicle does not belong to the applicant; that samples were not drawn from all the recovered charas which is violative of sections 35 and 36 of the Control of Narcotic Substances Act and S.R.O. 810(1)/2000 Control of Narcotic Substances (Government Analysts) Rules, 2001; that according to the prosecution story the raid was conducted by the ANF staff on Dost Hotel Hub City which is doubtful and dubious and its originality was further doubted because the same was not in accordance within the law and procedure. The raiding party on 31-7-2006 had not informed the area police nor made any entry in the Police Station Hub City for conducting any raid within the jurisdiction of Hub Police Station which causes serious doubt about the contents of the prosecution; that the only persons working under the instruction and order of I.O. Jehangir Khan are shown as witnesses in the challan while the persons included in the raiding party belong to ANF Clifton but they were not found participant of any act of recovery and arrest: The specific act of the I.O. And the complainant Jehangir Khan also causes a serious doubt about the arrest and recovery of the alleged offence; that it is evident from the final challan that only names of three persons, one is A.S.-I. Naeem Khan belonging to ANF, PC Ayaz Ahmed belonging to ANF and Inspector Jennie Khan PS ANF and remaining are not shown as witnesses which causes serious doubt; that as per the prosecution one brief case was also recovered from the vehicle but no separate mashirnama was prepared for the reasons best known to them; that the challan submitted by 1.0 in the trial Court is silent about sending the alleged recovered charas or samples for chemical examination which too creates serious doubt about the recovery; that the Seizing Officer is also I.O. In the case which is clear violation of Article 18 of the Police Order 2002; that the alleged recovery is from the vehicle and the quantum of maximum punishment provided by the said Section does not attribute to the applicant; that the direction of this Hon' ble Court vide order dated 11-6-2007 for conclusion of the trial within four months has not been complied with and only charge has been framed and after lapse of about one year and eight months he is languishing without trial.
4. ' In support of his contention, learned counsel has relied upon the case of Taj Wali and 6 others v.
5. The State (PLD 2005 Karachi 128), wherein a learned Division Bench has held that the complainant should not be made judge of his own cause, his version should be investigated by another officer and a check; could be placed on manipulation of evidence by complainant against innocent person which was very essential in present day's time. Activities of police officials who were themselves becoming complainants, witnesses and Investigating Officers should be checked and investigation of cases should be entrusted to officer superior to the complainant which act would ensure fair play between parties.
6. ' In the case of Husain Abid Jaffary v. State 2006 PCr.LJ 58 it has been held that word Possession implied a physical capacity to deal with the thing as one liked (sic) to the exclusion of everyone else and a determination to exercise that physical power on one's own behalf-Possession implied dominion over an object that one had it and that he could exercise it--Possession must be conscious and intelligent possession and not merely the physical presence of accused in proximity to the object.
7. ' Reliance is also placed on the case of Abdul Aziz Khan Niazi v. State PLD 2003 SC 668 wherein it has been held that unless possession prima facie, satisfies Court about culpability of a person, bail to him cannot be withheld merely on the basis of presumption of guilt. Unless in the light of evidence case was brought with parameters of expression "reasonable ground" to believe that offence within which a person was being charged was committed by him, bare accusation would not be sufficient to curtail his liberty.
8. ' In the case of Ghulam Abbas and others v. The State (PLD 2005 Karachi 255), it has been held that the delay was acknowledged as the statutory right by the legislation but for the best known wisdom same has been withdrawn but bail has always been conceded by the apex Court even then such provisions were not available on statute book and even in some cases where such restriction was imposed the Court conceded bail on the ground of undue delay. The principle as has been laid down in the above-case appears to be that the delay in each case is to be judged and weighed on its own merits. Inordinate delay if not explained amounts to abuse of process of law even in cases of capital punishment where the prosecution is loath in submitting the challan, slow in producing witnesses, failed to produce the accused without any justification or delaying tactics used by any person other than the accused including the complainant. There is consensus of opinion that if the delay is so shocking and scandalous, it would amount to abuse of process of law. Even where the directions of the superior Courts are not complied with without any justifiable reason, same could furnish a good ground for bail. Even in cases, on the assessment of police papers and conduct of the prosecution it could be seen that there is no future likelihood of conclusion of the trial in foreseeable future as for instance where proceedings against absconding accused took time or where the trial for any other reason could not be concluded, Court may be laying vacant for long time or where dispute as to the jurisdiction of Court took Unreasonably long time for decision as was held by the apex Court in the case of Muhammad Saeed Mehdi, the object of the criminal trial is to face trial and not to punish as under trial prisoner, expeditious trial was recognized right of accused person.
9. ' In the case of Taj Wali and 6 others v. The State (PLD 2005 Karachi 128), a Division Bench of this Court observed that the complainant was highly interested as he having detected offence, would like to see that accused was convicted. Complainant thus should not be made judge of his own cause, his version should be investigated by another officer and a check could be placed on manipulation of evidence by complainant against innocent person which was very essential, in present day's time. Activities of police officials who were themselves becoming complainants, witnesses and Investigating Officers should be checked and investigation of cases should be entrusted to officer superior to the complainant when act would ensure fair play between parties.
10. ' The Hon'ble Supreme Court in the case of Jaggat Ram v. The State (1997 SCMR 361) has held that maximum punishment prescribed for the offence was life imprisonment and the accused had remained in custody for a continuous period of more than one year. Trial of accused could not possibly conclude in the near future. Petition for leave to appeal was consequently converted, into appeal and was allowed, resultantly accused was admitted to bail.
11. ' Learned counsel for the State while opposing the grant of bail contended that the applicant is involved in a huge quantity of charas and he seems to be a professional smuggler and he was to spread menace if not arrested. He, however, was unable to controvert the raid conducted at the hotel and the press clippings.
12. ' I have heard the learned counsel for the applicant and have gone through the case laws.
13. In this case there are three accused persons as per the prosecution. Contraband charas was recovered from the vehicle and not from the exclusive possession of the applicant. The arrest of the applicant, as per the prosecution, was effected from the driver seat and on the road, whereas the news clippings of Daily Mashriq, dated 1-8-2006, Daily Intekhab dated 1-8-2006, Daily Tawaar dated 1-8-2006 and Daily Eagle dated 1-8-2006 show that the applicant and other persons were not arrested from the place suggested by the prosecution but they were arrested from different places and that Dost Hotel was cordoned off from which six persons including the applicant were arrested. The newspapers are independent reporters. They have reported raid and exchange of firing between the police and the accused which creates doubt in the arrest of the applicant as suggested by the prosecution from the place other than Dost Hotel. The prosecution story seems to be doubtful. Furthermore, the directing of High Court has not been complied with. The Hon'ble Supreme Court in the case of Muhammad Aslam v. The State (1999 SCMR 2147), has held that despite direction of High Court trial against the accused had not been completed by the trial Court within the specified period. Prosecution was unable to give any explanation for non-compliance of the said order of High Court. Petition for leave to appeal was converted into appeal which was allowed. It is well settled law that fair and expeditious trial is right of an accused person. In case where the applicants accused are able to show that there is unexplained delay on the part of the prosecution to proceed with the case and conclusion of the trial, delay is unexplained Court may enlarge the accused on bail. The applicant is languishing in jail since 31-7-2006 and there is no chance of conclusion of the trial. All these factors create doubt in the prosecution case and in such type of cases where there is a reasonable doubt, the superior Courts have enlarged accused on bail, as the object of the criminal trial is to face trial and not to punish as under trial prisoner, expeditious trial was recognized right of accused person. Court obviously could not be oblivious to the menace of drugs and their evil effects in the society, but the law as to the grant of bail in such offences; despite being more stringent than in other offences, could not be stretched in favour of prosecution unjustly and the benefit of doubt, if any, was to go to the accused. One cannot be kept in custody on the basis of mere suspicion. Bar contained in section 51 of Control of Narcotic Substances Act, 1997, would be attracted only when there were reasonable grounds for believing that accused was guilty of the alleged offence. High Court was competent to grant bail in appropriate cases, notwithstanding the provisions of section 51 of Control of Narcotic Substances Act, 1997. No reasonable grounds for believing accused guilty of offence being available, and matter required further inquiry into guilt of accused. Reference is made to the case of Muhammad Farooq Khan v. The State (2007 PCr. LJ 89) (Karachi). Following the dictum of the Hon'ble Supreme Court I am of the considered view that the applicant has made out a case of bail. Therefore, I grant him bail in the sum of Rs,10 lac with P.R. Bond in like amount to the satisfaction of the trial Court. It is, however, made clear that the above observation is tentative in nature and the trial Court should not be influenced from it and decide the case on merits.