' SHAHID ANWAR BAJWA, J.--F.I.R. No, 17 of 2009 was registered on 3-3-2009. It was stated in the F.I.R.
That on the night intervening between 2nd and 3rd of March, 2009 while complainant was performing his duties at the International Departure Hall, Jinnah Internal Airport (HAP), Karachi at about 2245 hours he was contacted by PIA Security Staff for conducting Narcotic Search of NA Aircraft No,AP-BEC at Bay No,27 of International Satellite. Said aircraft was scheduled to operate Flight No,PK-257 on Karachi-Abu Dhabi-Doha Sector. Complainant along with dog handler and drug detecting dog "Duke" proceeded to the said aircraft. After conducting search they got down the aircraft and while they were still around the aircraft for surveillance over cargo, the dog handler received phone call. After receiving calls he told that it was a call from PIAC Security Staff, Mr. Azad Khattak who had informed about interception of a suspicious package near PIA Aircraft AP-BGN at Bay No,22. The Dog handler stated that Mr. Khattak had asked custom people to be present. In the presence of custom personnel when they reached Bay No,22 PIA Security Staff Khattak disclosed that PIAC's Catering Van No,1913 had come to Bay No,22 to off-load food items for the aircraft which had arrived at Karachi. Mr. Khattak further informed that when the said van was brought along side the PIAC aircraft and when its rear shutter was pulled down a gray cloth packet dropped from the van where it was kept in cavity/space between roof of the van and upper portion of movable shutter. Said van was operated by applicants in these two criminal bail applications. The said bag was got sniffed by dog handler who indicated presence of narcotics. It was, therefore immediately taken into possession and in presence of Customs Inspector and sepoy and PIA Security Staff upon examination cloth was found to be of vest like dress containing three packets which made of paper and plastic adhesive tapes which were cut open and it led to recovery of off white heroin powder.
When weighed it was found to be 3 kgs. It was seized, three samples were recovered and were sent to laboratory for testing. Present applicants were arrested on the spot. Samples were sent to Laboratory and according to laboratory report same were found to contain heroin powder.
2. After investigation interim challan was submitted and thereafter final challan was submitted on 29-5-2009 and the trial is still pending in the Court. Bail applications were filed by the present applicants and bail applications were dismissed by the trial Court vide order dated 8-7-2009 for the following reasons:-- "Arguments of the learned counsel have given careful consideration and perused the record of the case. The record of the case shows that at the relevant time on 3-3-2009 when the recovery of 3 kgs. Off white Heroin powder in gray colour cloth vest and three packets made up of paper/plastic adhesive tape as container has been made from the Catering Van No,1913 Suzu at 0130 hours both the accused Rizwan Shafiq and Muhammad Shafqat Imran were on duty on the said catering van as per Log Book. The packet containing 3 kgs. Of Heroin which was secured had fallen down when the articles were being loaded from the catering van. The said packet had been examined by dog handler Abdul Rehman and after examining the said packet it was confirmed that it was Heroin, and record of the case shows that the complainant thereafter had called the Shift Incharge Muhammad Iqbal (MI) Inspector Preventive Service and briefed him about a phone call received on the cell of Dog Handler Abdul Rehman. The record of the case shows that the recovery have been made not on surprise, but the information had been received on cell and thereafter the search was made. Since the said catering van was exclusively operated by both the said accused, and it is common knowledge that near Air Craft no person has access unless checked by ASF Staff, Custom Staff deputed at the airport, and only on clearance from the relevant authorities, a person can go near the Aircraft. There is prima facie evidence of recovery of 3 kgs. Off white Heroin powder from the exclusive possession of both the accused which were concealed in a gray colour cloth vest and three packets made up of paper and affixed with plastic adhesive tape and the said packet had fallen down, who were on duty on the said catering van. The contention of the learned counsel for the both the accused that there is hearsay evidence, and there is no direct or indirect evidence connecting the accused with the recovery is rebutted by said record of the case. In view of the said reason since there is prima facie evidence connecting the accused Rizwan Shafiq son of Muhammad Shafiq and Muhammad Shafqat Imran son of Irshad Hussain with the commission of the said offence punishable under section 9(c), C.N.S. Act, 1997. As such both the bail applications of said accused are hereby dismissed."
3. Learned counsel for the applicants submitted that applicants were innocent and had been roped in due to conspiracy. Learned counsel referred to sections 6, 7 and 8 of the Control of Narcotic Substances Act, 1997 and stated that applicants were neither in possession of drugs nor involved in exporting nor were they transporting the same. He further submitted that no charge could be levelled against applicants. Learned counsel submitted that except official persons no private person has been associated with recovery. He further submitted that the bag was lying on the ground when they reached there. Applicants were never in possession of the drug. He further submitted that falling the bag could not have attracted attention of the security staff because it was not a lounge. He lastly submitted that this case is of further enquiry and doubt of every benefit should be given to the applicants. He submitted that there has been delay of six months since the Challan has been filed and no progress in the case has taken place. Learned counsel relied upon Sohail Masood Ansari v. The State 1997 M LD 1897, Mubarak Ali and another v. The State 1998 PCr.LJ 238, Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182, Sajjad Hussain v. The State 1996 PCr.LJ 1437, Jaggat Ram v. The State 1997 SCMR 362, Muhammad Irshad v. The State 1989 ALD 17, Bootal Masih v. The State 1993 PCr.LJ 1198, Muhammad Shafique v. The State 1992 PCr.LJ 1550, Tila Muhammad v. The State 2003 PCr.LJ 1379, Mushtaq Ahmed and 2 others v. The State 1999 M LD 445, Aslam Khan v. Qaiser Khan and 2 others 1999 PCr.LJ 582, Muhammad Arif Hussain v. The State 1999 M LD 939 and Sajjad Hussain v. State 1996 PCr.LJ 1437.
4. Learned Deputy Attorney General submitted that applicants were arrested at the spot and they were operators of the van from which bag fell down. They are directly implicated. He therefore opposed grant of bail.
5. I have considered submissions made by the learned counsel and have also gone through the record as well as case-law cited by the learned counsel.
6. The quantity allegedly recovered was 3.00 kgs. Therefore offence falls under section 9(c) of the Narcotic Substances Act, 1997. It is stated in the complaint that accused brought van to the side of plane and the bag fell from the van. Therefore, prima facie, there are allegations of transportation and therefore simple certainly transported and section 7 of the Act is attracted. Since it is alleged that bag fell from the van and van was being operated by the applicants/accused, the accused would be in constructive possession of the bag and therefore section 6 would also be attracted.
Whether section is attracted or not will have to be seen by the trial Court after recording of evidence as to the guilt or innocence of the accused persons. Therefore contention of learned counsel that none of the provisions of the Control of Narcotic Substances Act, 1997 is attracted to facts of the case, in my opinion us without substance.
7. Coming to the case-law relied upon by the learned counsel. In Sohail Masood Ansari's (supra) case allegation against accused was that he admittedly misappropriated Government amount but later on he deposited the entire amount. Since the accused remained behind bars for 6 months and according to report of enquiry officer department had not suffered any loss and the complainant had not explained delay of more than then years in lodging the F.I.R., the case was held to be of further enquiry and bail was allowed. Facts are clearly distinguishable. Reported case was not in respect of Narcotic Substances Act. In Mubarak Ali's case (supra) it was stated that an spy information Excise Police followed a car and stopped it near Liaquat National Hospital. Persons riding in the car were searched and from possession of Mubarak two packets containing heroin powder were recovered. The quantity was one kilograms. There were two other passengers one of whom was a Kenyan national. It was held that mere factum of possession would not be sufficient to refuse bail. This case is distinguishable. In this case car was on the road whereas in the present case applicants were along ride of an aircraft going to a foreign destination. In Muhammad Sadiq, Aslam Khan, Mushtaq A Ahmed and Arif Hussain's cases charges were under section 302, P.P.C. All these cases are therefore clearly distinguishable.
8. In Sajjad Hussain's case (supra) after recovering heroin from possession of the accused, Inspector CIA had himself proceeded to conduct investigation for which he had no authority. It was observed that being himself complainant, recovery witness and also investigation officer it had prejudiced case of the accused. No such allegation is made in the present case and therefore that case is clearly distinguishable. In Jaggat Ram's case accused was arrested for allegedly carrying heroin weighing 25 kgs. In a donkey cart. He moved bail application on the ground of delay in conclusion of his trial and for remaining continuously in jail for a period of more than one year from the date of his arrest. Bail application was rejected by the trial as well as by the High Court. The honourable Supreme Court observed that it was not disputed before it that delay in conclusion of trial was not attributable to the accused. High court had held that accused had been proved to be a hardened, desperate and dangerous criminal. In view of the 4th proviso of section 497 (1), Cr.P.C, he was held entitled to grant of bail. Since this case pertained to period before the Control of Narcotic Substances Act is therefore clearly distinguishable.
9. In Muhammad Shafique's case there was recovery of 504 grams heroin which falls under section 9(b) whereas recovery of 3 kgs. Falls under provision contained in 9 of the Act of 1997. In Tila Muhammad's case (supra) information was received by police about presence of a proclaimed offender in house of Tila Muhammad. A police party reached the house, proclaimed offender was recovered and on search of bedroom of Tila Muhammad and Iqbal 30 kilogram Charas and 300 grams of heroin were recovered. Tila Muhammad was arrested. Division Bench of Peshawar High Court held that police had charged all the male members of the applicant's household as accused in the case. The appellant's son Muhammad Iqbal was tried with him whereas other son Ibrar was stated to be still at large. Prosecution had not established with any reasonable certainty as to whether all or which of the 3 accused, can be attributed physical or constructive possession of the narcotic substances. In these circumstances bail was allowed.
10. In Sajjad Hussain v. The State case (supra) quantity allegedly recovered was 27 grams and there this case is clearly distinguishable. In Boota Masih's case (supra) quantity recovered was 490 grams. Last case is of Muhammad Irshad (supra) which is only a head note.
11. In the present case van was brought and bag fell from the back of van. Had bag been lying on the ground van driver should have seen it lying on the ground and stopped the van short of the bag. Therefore, prima facie contention of learned counsel that bag was lying on the ground does not seem credible. Second aspect stressed by the learned counsel was that no private person was associated with recovery. Recovery took place by the side of an aircraft in a highly secured area.
Nor person who is employee of Airport Security Force or an Airline or Customs Authority or similar other State Agencies is allowed in that area. Therefore there could not be a private person associated with recovery.
12. Applicants have been named in the F.I.R. And are directly and clearly implicated. Therefore, I agree with trial B Court that appellants are not entitled to facility of bail.
13. However, before parting with judgment I may observe that final Challan in this case was filed on 29-5-2009. There are 10 witnesses, all of them employees of one agency or the other or PIAC staff.
Therefore, it would be appropriate if trial Court proceeds with,trial with due dispatch and it is expected that trial Court would finally decide this matter within a period of six months.