1. ' MUSHIR ALAM, J.---This bail application has been filed against order of Judge Special Court II of Control of Narcotics Substance at Karachi dated 1-10-2009 in Special Case No, 288 of 2009 registered in F.I.R. No, 535/09 under section 6/9(C) Narcotics Control Act at Police Station Sohrab Goth Karachi on 19-8-2009.
2. ' Brief facts of the case are that applicant is a political and social worker of Orangi Town and was apprehended while driving his vehicle No, WAA 917, Make Hi Lux Surf coming from Indus Plaza towards Superhighway in a very high speed.
3. ' According to complainant S.I.P. Khair Muhammad with police party on patrol seeing the above vehicle coming on the road at a very fast speed and suspecting some foul had stopped it and they found out that this vehicle was driven by the applicant himself and when he came down the passenger Nadeem Khan told him in Pushto that he had shifted the parcel beneath the seat of the driver side and during search a white colour plastic bag containing four bags of heroin weighing one kg each totalling four kgs was recovered and the applicant was arrested and his bail application before learned Special Judge was rejected. Hence this bail application.
4. ' I have heard Mr. Shaikh Rehan Farooq, learned Counsel for the applicant and M's. Rahat Ehsan, learned DPG, who has been assisted by S.I.O. Mehboob Illahi. Also present on the occasion Sub- Inspector Idress Alam, S.H.O. Police Station Mangopir and PC Waheed presently serving in Security Zone, Hassan Square, Karachi.
5. ' Initially Mr. Rehan Farooq, learned counsel for the applicant has argued that a false case has been registered against the applicant because he had developed enmity with the management of Messrs Javedan Cement Factory allegedly on account of dispute over possession of certain pieces of land which according to him belongs to Goth and on this point a number of altercations between the two parties had already taken place and he was being pressurized by the Police officials to settle, the dispute and withdraw from such dispute. He submitted that on 18-8-2009 he had received telephonic call from one PC Waheed who was according to learned counsel posted at that time at Mangopir Police Station informing the applicant that the S.H.O. Police Station Mangopir wanted to see him and when he reached the Police Station in his vehicle which has been mentioned in F.I.R. He was apprehended and shifted to Sohrab Goth Police Station and then this false F.I.R. Was registered. In order to verify this statement that on particular day he had received call from PC Waheed this Court requisitioned details of Calls made to and from Mobile Phone No, 0300-2051024 belonging to the applicant between 15-8-2009 to 20-8-2009 and such details were provided by Messrs Mobil ink Company vide statement of this counsel dated 22-10-2009 and were examined by this Court and on such examination it transpired that on that day at least seven phone calls were made from No, 0344-24821440 between 2-38 p.m. To 1736 hours and then no call was made to or from that Mobile number after 8:04 p.m. On that date. He identified this number as Mobile of PC Waheed and therefore, PC Waheed was summoned by this Court and he conceded that the mobile number in question was the number of his mobile phone but submitted that since the applicant was his co-villager and he had personal relationship with him and there was some dispute of some land which according to him could have been resolved with the influence of the applicant, therefore, he had phoned him on that day. He denied that he phoned him on the instruction of S.H.O. Mangopir or any other reason except the reason stated by him.
6. ' Learned counsel for the applicant had also furnished affidavit of three notable religious figures of Orangi Town who have on oath certified the good character of the applicant and have reiterated their contention before this Court. The learned Counsel relied on the following judgments in support of hi contentions: ' Imtiaz Ali v. The State 2006 M LD 1961, Muhammad Nawaz v. The State 2007 M LD 1846 and Saeed Ahmed v. The State 2003 PCr.LJ 821 ' He further stated that there are many defects in the F.I.R. Inasmuch as it has not been mentioned as to whether any sample of the narcotic was taken out for sending to the Chemical Examiner and whether heroin was weighed at the spot and the contradiction in the timings mentioned in the Roznamcha or Mushirnama of recovery and arrest and such other discrepancies. He therefore, prayed that the applicant may be released on bail.
7. ' The S.I.O. Assisting the learned DPG has brought investigating record of the case before this Court and has shown this Court that according to Mushirnama of recovery it has mentioned that the narcotic in question was weighed. He has also read out various Roznamcha entries regarding departure of the patrolling party and its return. Regarding discrepancies between number of these Roznamcha entries he submitted that leaving of petrol party was recorded at Police Chowki whereas Roznamcha of return was recorded in Police Station Sohrab Goth. He also showed me that entire amount of heroin, sealed was sent to the Chemical Examiner from the custody which was received by the Chemical Examiner but unfortunately since he has not received report of the Chemical Examiner yet, therefore, he cannot produce the same and therefore, it is yet to be determined whether report of Chemical Examiner is positive or not. After such factual position learned D.P.-G strongly opposed the grant of bail and submitted that the applicant was - apprehended red-handed and on the spot recovery of narcotic was made from him and learned counsel for the applicant though pleaded mala fide and enmity could not prove the same. She prayed that this court may reject this bail application. She has also relied on the following judgment of this court and other High Court wherein wherever quantity exceeding one kg of narcotic has been recovered and the accused applicant nabbed on the spot the courts have refused the grant of bail because such offences come under section 6/9(c) of the Narcotics Control Substance Act and are punishable with sentence which can be as much as life imprisonment even death in some cases are therefore, fall within explanation of sections 497 and 51 of Control of Narcotic Substances Act.
8. ' Shaukat Mehmood and another v. The State 2000 PCR.LJ 1752, Arab Kori v. The State 2000 PCr.LJ 4 and Barat v. The State 2002 PCr.LJ 971.
9. ' I have examined the case in the light of the arguments of the learned Counsel and have examined the records of case and judgments relied upon by the learned counsel.
10. I am in full agreement with the learned D.P.-G that in cases which fall within the exception to section 497, Cr.P.0 or 51 of Control of Narcotic Substances Act, bail cannot be granted by the Court.
11. However, this Court while hearing the bail application has to determine without going into deeper appreciation of evidence whether a prima facie case has been made out for establishing that the applicant has been implicated in the case on the basis of mala fide of enmity existing and whether there is some prima facie evidence which may require further inquiry.
12. This Court has the jurisdiction and authority to grant bail in cases, where the applicant/accused has made out a case of mala fide and this has been held by a Division Bench of this Court in the case of Imtiaz Ali v. The State quoted supra wherein this Court held that whenever accused was able to show by cogent reason the possibility of his false involvement in case it can be considered a good case for grant of bail.
13. Without investigating at the moment as to whether contention of PC Waheed that he had made those seven calls because of his relationship with the applicant and the fact that the S.H.O.
14. Mangopir was present before this Court has admitted that once or twice in the past much before 18-8-2009 the applicant had visited Police Station Mangopir because of involvement in some kind of cases and also looking at the report of Mobilink wherein it is stated that no phone call was received by or made by mobile belonging to applicant after 8-04 p.m. On 18-8-2009 despite the fact that he was arrested on 11-30 a.m. And also on the factual position that such heavy load of heroin was being taken by the applicant and his companion without possessing any fire arms as no firearm was recovered by the police from them and the fact that they had not tried to rush away when stopped by the police and stopped at their signal as mentioned in the F.I.R. I am of the considered view that a prima facie case subject to further inquiry to be made, has been made out that the applicant may have been implicated on the basis of his previous attitude and altercation with police authority. I am therefore; of the considered opinion that the applicant is entitled to bail. I therefore, admit the applicant to bail subject to furnishing two solvent sureties in the sum of Rs,5,00,000 (Rupees Five Lacs) each and personal bond in the like amount to the satisfaction of the trial Court.
15. ' All these observations are tentative in nature and may not be considered by trial Court while finally disposing off this case.
16. ' I would also like to caution the applicant that he should cooperate with the trial Court and investigating agency and not leaves the town without permission of the S.I.O. If he even defaults once in appearance before the trial Court or I.O. Or leave the Town without permission of the I.O., this concession of bail shall be withdrawn.
17. ' This bail application is disposed of in the above terms.