' AQEEL AHMED ABBASI, J.---The brief facts leading to filing this second hail application before this Court as stated by the learned counsel for applicant are that the first Bail Application bearing No,478 of 2009 filed on behalf of the applicant/accused in this Court was dismissed on 17-6-2009, whereafter, as per learned counsel, in view of fresh facts, second bail application was filed before the C.N.S. Court-I, which has also been dismissed by the learned Judge of C.N.S. Court-I, vide order dated 26-7-2010: The applicant being aggrieved and dissatisfied by the dismissal order has preferred instant bail application under section 497, Cr. P.C.
2. The brief facts for the purposes of the disposal of the instant bail application and the set of allegations as stated in the F.I.R. Are that on 18-2-2009, S.H.O./S.-I. Mohd. Muzamil Ahmed of Police Station A.N.F., Mohd Ali Society was present at police station, meanwhile superior Officers informed me that one Pakistani person namely Hafeezur-Rahman Tahir son of Aziz Bukhsh is likely to smuggle huge quantity of heroin to foreign country South Africa (Johansberg) by Flight No,FY-228.
On this information on the directions of my Superiors, I S.H.O./S.-I. Muzamil Ahmed along with A.S.-I.
Mohd Aslam, P.C., Akhtar Iqbal, L/NK Mohd Zahir, PC Mohd. Jurmal and Driver Abdullah Baloch reached at International Departure by official van at about 2150 P.M. I S.H.O./S.-I. Muzamil and A.S.-I.
Aslam with the help of A.N.F. Duty staff N/Subedar KhaLz Badshah, PC Kamran and other staff and with Supervisor Zahoor Ahmed of Ittehad Air Lines started to watch passengers of Ittehad Air Lines.
Meanwhile at about 2215 P.M. One person who was carrying Passport No, AX-7122481, air ticket from Karachi to Johansberg via Abu Dabi, two boarding cards in his right hand, and a Trolly Bag brown colour in his left hand. On checking his passport, he found the same person as Hafeez-ur-Rahman as was informed by my superior Officer, while ticket and boarding cards were of the Ittehad Air Lines from Karachi to Johansberg via Abu Dabi, and a Tag No,EY-281747 was attached with boarding card which revealed that he has also booked luggage from the counter of Ittehad Air Lines which he admitted. In presence of Mashirs A.S.-I. Aslam and PC Kaman I asked his name and he disclosed his name as Hafeez-ur-Rehman Tahir son of Aziz Bukhsh resident of Chak No,75/DNB Bangla Shahi Post Office Teh Jazman Distt. Bhawalpur and he also told that a suit-case has been booked by him, therefore he along with flight supervisor Zahoor Ahmed was taken to his booked suit-case gray colour tagged with EY-281747 and was off loaded and searched at A.N.F. Counter and from his Trolley 4 pairs of pant, 2 shirts, one Jacket, one towel, one vaskit, one pair shoes some miscellaneous papers, 2 expired Passport No,KA-229415 and F-929130 of Hafeez-ur-Rehman were recovered, while from search of suit-case, 3 Shalwar Kameez suits, 2 Trouser one shirt and one sweater were found. Being bulky suit-case, therefore it was checked thoroughly and its upper and lower layers being double were cut-off and found heroin powder of white off colour 8/8 in Nos, totaling 16 plastic thalies (bags) therefrom concealed very cleverly was recovered; weight of each plastic bag was 310 gram, thus total weight of 16 recovered bags was 4 Kgs and 960 grams and from each recovered bag 10 grams of heroin was separated in brown colour envelope and sealed for sending it to Chemical Examiner and remaining each bag of (heroin) was sealed in white cloth bag. Then samples and case property heroin were marked from S. Nos.1 to 16 for identification, and the Suit Case containing apparel/clothes was sealed separately. From further personal search of accused, 2 Debit Cards of FNB Bank, one driving license Pakistani, Mobile Phone Nokia Model 1112 with 2 additional SIM cards, photocopy of NIC 31205-6946248-9 of Hafeez-ur-Rehman Tahir, Pakistani Rs,1740 and South African currency RAND-2000/ were also recovered. The said person.Was duly arrested and recovered articles and case property was taken into custody in presence of witness and memos were prepared on the spot in presence of witnesses who put their signatures being correct. On the spot accused told that recovered heroin was supplied to him by Mohd Nazir Asghar alias Zeashan son of Ali Asghar resident of Village Badergha Banda, Post Office Lund Khur, Tehsil Takhat Bai, Distt. Mardan. As arrested accused Hafeez-urRehman Tahir son of Aziz Bakhsh and unarrested accused Mohd. Nazir Asghar alias Zeashan son of Ali Asghar committed offence under sections 6/9(C), 14, 15 of C.N.S. Act, 1997, therefore the instant case has been set-up against both the accused persons. Copies of F.I.R. Shall be distributed according to law.
3. The applicant/accused was arrested at the spot and he is behind the bars since his arrest.
Thereafter the challan has been submitted and the charge has been framed and the applicant/accused facing trial in C.N.S. Court. It is inter alia contended by the learned counsel for the applicant that the instant second bail application is maintainable as new facts have come on record. Learned counsel submitted that the impugned order passed by the C.N.S. Court as well as by this Court were based on misconceived facts, whereas there has been a fresh development in this case whereby, on an application moved by the applicant/accused before the learned trial Court under section 94 read with section 540, Cr.P.C., the learned trial Court has directed the Airport Security Agency to produce the flight clipping report and concerned flight's time for the purposes of inspection. Per learned counsel, such order by the learned trial Court itself makes prosecution case doubtful and of further inquiry, hence the applicant/accused is entitled to the concession of bail. The learned counsel has read out the contents of the F.I.R. And the impugned order passed by the C.N.S. Court, as well as order of this Court passed in Criminal Bail Application No,478 of 2009. He has also read out cross-examination of P.W. A.S.-I. Muzammil recorded on 3-6-2010. Learned counsel has argued that the alleged recovery of the contraband has been shown from the luggage of the applicant/accused and not from his personal possession. No memo of loading of the suitcase luggage has been prepared. Per learned counsel, the suit-case purportedly belonging to the applicant/accused could not possibly go through the two screening machines installed at the Airport, one of which has been installed by A.N.F. He further argued that the entire property was not sent for chemical examination, hence all the allegations in this regard are false. Per learned counsel, the complainant and the I/O of the complainant in this case is the same person which is the violation of law, whereas offence does not fall within prohibitory clause, hence the applicant/ accused is entitled to the concession of bail. In support of his contention the learned counsel has placed reliance on the following reported judgments:--
(1) Nadeem v. The State 2007 MLD 1092.
(2) Royce Dean Wellman v. The State 1997 MLD 1708.
(3) The State through Deputy Director Anti Narcotic Force, Karachi v. Syed Abdul Qayum 2001 SCMR 14.
(4) Nazeer Ahmed v. The State PLD 2009 Karachi 191 and
(5) Muhammad Ullah v. The State 2009 SCMR 954.
4. Conversely, the learned Special Prosecutor A.N.F. Has vehemently opposed the grant of bail to the applicant/accused as according to him this being second bail application filed by the applicant/ accused on the similar facts and grounds already considered by the C.N.S. Court as well as other Bench of this Court, is misconceived in facts and law. Learned Special Prosecutor _submitted that the grounds raised by the counsel for the applicant/accused are not relevant for the purposes of grant of bail as the same relates to the merits of the case, which can only he ascertained after taking evidence at the time of final disposal of the case. He further argued that the matter is proceeding before the trial Court and the evidence is being recorded, whereas, all the grounds raised herein have already been dealt with through the impugned orders. He has further submitted that the objection relating to the application of sections 20 and 21 of C.N.S. Act as well as section 103, Cr.P.C. Are misconceived as held by the Hon'ble Supreme Court in its reported judgment in 2008 SCMR 1254 and as regards the objection relating no recovery of the contraband from the person of applicant has referred section 6 of the C.N.S. Which defines the possession. Per learned counsel, recovery has been effected from the possession of the applicant/accused, whereas samples were taken from each packet and sent to chemical examiner which supports the case of the prosecution, hence there is sufficient material to connect the applicant/ accused in the instant crime, therefore, the applicant is not entitled for the concession of bail at this stage. Learned Special Prosecutor has placed reliance in the case of Waris Khan and 2 others v. The State 2006 SCMR 1051.
5. I have heard the arguments of both the learned counsel and perused the record. From the perusal of the record, it appears that the present applicant/accused was arrested at the spot when the luggage of the applicant/accused was offloaded and searched at A.N.F. Counter at the Airport and from upper and lower layers of the suitcase heroin powder packed in 16 plastic thalies were recovered. It further appears that from each recovery plastic bags, 10 grams of heroin powder were separated in brown colour envelope and sealed and were sent to the Chemical Examiner.
Though all the mushirs of the search and recovery are official persons, however, Chemical examination report supports the prosecution story. The applicant/accused was challaned, charge has been framed and the matter is proceeding before the concerned C.N.S. Court. It is pertinent to observe that the instant hail application appears to have been filed on almost on the similar grounds raised before this Court in Criminal Bail Application No, 731 of 2010 as well as before C.N.S. Court in IInd Bail Application No, 478 of 2009.
6. From the perusal of the record and the impugned order whereby the bail was declined to the applicant accused, it appears that all the legal objections have been dealt with and answered against the respondent after placing reliance on the judgments of the Hon'ble Supreme Court as well as of this Court and the same cannot be allowed to raise again in the garb of alleged development in facts. I am of the opinion that mere filing of the application before the trial Court requiring the production of the flight clipping report and concerned flight time alone will not bring the case of the applicant/accused within the purview of further inquiry, which may lead to the release of the applicant/accused on bail at this stage particularly when the evidence is being examined by the trial Court. While considering the bail application the Courts are not required to make deeper appreciation of evidence, whereas only the tentative assessment is required. Prima facie, it appears that sufficient connecting material is available on record against the applicant/accused and the matter is proceeding before the trial Court regularly, whereas, no allegation of mala fide or of previous enmity against the prosecution has been levelled. Moreover, it is not conceivable as to why huge quantity of Narcotics/contraband may be foisted upon the applicant/accused. Objection against the prosecution for not associating the private witnesses of the raid conducted and of the recovery of memo as well as mashirs of recovery has been raised.
From bare perusal of sections 20, 21 and 25. Of C.N.S., Act, it appears that the objections raised by the applicants/accused about non-compliance of sections 20, 21 and 25 of C.N.S., Act, as well as provision of section 103, Cr.P.C. Are misconceived in facts and law. In the reported case of Zafar v.
The State 2008 SCMR 1254 larger Bench of Hon'ble Supreme Court has held thatlC in view of section 25 of the C.N.S., Act, the application of section 103, Cr.P.C. In narcotics cases has been excluded. It has further been held that non-inclusion of any private witness is not a serious defect to vitiate the legal proceeding under C.N.S. Act. It has been further held in the same judgment that provisions of sections 20, 21 and 22 of Control of D Narcotic Substances Act, 1997, being directory, hence non- compliance would not be a ground for holding trial/conviction bad in the eyes of law. While, reaching to this conclusion the Hon'ble Supreme Court has placed reliance on the earlier reported cases i.e, Fida Jan v. The State 2001 SCMR 36, State through A.G. Sindh v. Hemjoo 2003 SCMR 881, Karl John Joseph v. The State PTD 2004 SC 394 and Muhammad Younas v. Mst. Perveen alias Mano and others 2007 SCMR 393. Another Bench of this Court in its recent two orders dated 5-7-2010 in Criminal Bail Application No,748 of 2009 Syed Rehman Shah v. The State and order dated 16-9-2010 in Criminal Bail Application No, 677 of. 2010, on somewhat similar facts and circumstances, has declined bail to the accused persons. The case-law referred and relied upon by the learned counsel for the applicant on the subject are distinguishable and not relevant in view of the facts of the instant case hence reliance in this regards appears to be misplaced. I am further fortified in my view by two recent judgments of Hon'ble Supreme Court on the subject, reported as Ismaeel v. The State 2010 SCMR 27 and Muhammad Noor and others v. The State 2010 SCMR 927. Reference in the subject case is also made to an unreported order passed by this Court in Criminal Bail Application No,679 of 2010.
7. In view of hereinabove facts and the case-law on the points involved in the instant case, I am of the view that the applicant/accused has not made out a case of 2nd bail application on somewhat similar grounds whereas purported ground of changed facts is merely part of proceedings before the learned trial Court and does not constitute a fresh ground of further inquiry for the purposes of seeking bail. Accordingly, the appellant/accused is not entitled to concession of bail at this stage, which is hereby dismissed.
8. However, the learned C.N.S. Court is directed to proceed with the case expeditiously, keeping in view the National Judicial Policy, and dispose of the matter, preferably, within a period of three months.
9. Needless to observe that observations made hereinabove are tentative in nature and the learned trial Court shall not be prejudiced by any such observations and shall decide the case on merits in view of evidence available on record.