1. ORDER TUFAIL H. EBRAHIM, J.---Brief facts for disposal of this bail application as per the prosecution case are that on 4-4-2010 F.I.R. Was lodged by S.-I./ S.H.O. Abid Raza Shah, who along with HC Saleem Ahmed, PC Rehmatullah, PC Mehboob Hussain Shah, PC Muhammad Ismail, PC Hanif were patrolling for prevention of narcotics and at about 1040 hours when they were near Makro Shopping Mall, SITE Area, Karachi, spy information was received from special informer that two narcotic smugglers, namely, (1) Noor Rehman's and (2) Shah Iran have reached from Peshawar to Karachi and have smuggled huge quantity of narcotics in secret racks of Bus No. MLH-855 and were about to unload narcotics from secret racks of the said bus and if immediate action was not taken the recovery of narcotics and arrest of persons could not be effected. On this information of special informer they along with spy informer immediately reached near Makro Shopping Mall and found the said bus parked nearby and with the help of police encircled the said bus and asked the people present there to become private witnesses, but they due to fear from smugglers of narcotics refused to become witnesses and therefore (1) HC Saleem Ahmed and (2) PC Rehmatullah from the raiding party were made witnesses and from the front door entered the bus and found two persons thereon. One of them was taking out one yellow colour packet from rear side of VIP seat while the other person was taking out of one white cloth packet from secret rack beneath the drivers' seat. Both persons were arrested with the said packets.
2. The person who was apprehended from the rear seat of VIP seat disclosed his name as Noor Rehman's son of Sher Zaman. The yellow color packet which was recovered from Noor Rehman's, was opened and checked, in which a white plastic bag was found containing Charas in the shape of garda. On further inquiry said Noor Rehman's further took out another packed duly wrapped with yellow tape and two white cloth packet from the same place and handed over to S.-I. The packet wrapped with yellow tape was opened and checked from which a white plastic bag containing Charas garda was recovered, while on opening the two white cloth packets plastic bags in khaki heroin powder of brown colour was found. The said two yellow packets were weighted and found 1200 grams of charas garda in each packet (total 2400 grams). 10 grams of charas garda was separated from each packet and sealed in a white plastic bag for the purpose of chemical examination. The heroin powder recovered from the two white cloth packets were also weighted and found 1 kilogram from each packet (total 2 kilogram). 10 grams of heroin powder was separated from each packet and sealed in a white plastic bag for the purpose of chemical examina section. The rest of the charas garda and heroin powder were also sealed separately.
3. The other apprehended culprit disclosed his name as Shah Iran son of Shikar Khan, from his possession one white cloth packet was recovered, on opening the same one plastic bag in Khaki envelop containing heroin power were found. On further inquiry he also got recovered two more white cloth packets from the rear seat of driving seat and handed over to S.I. On opening the said packets white plastic bags containing heroin powder of brown color were found. All the three cloth packets were weighed and found 1 kilogram heroin powder in each packet (total 3 kilograms), out of which 10 grams heroin powder was separated from each packet and sealed in white plastic bag for the purpose of chemical examination. The rest of the heroin powder were also sealed separately.
4. The accused Nom' Rehman's was further searched and from his Kameez's pocket his CNIC, Rs.400, key of said bus and one mobile phone Nokia 1650 with SIM were recovered and from Shah Iran's Kameez pocket his CNIC, Rs.3,200 and one mobile phone Nokia model 1600 with SIM were recovered. On the spot formal investigation was conducted and both the accused persons disclosed ' the name of owner of the said bus as Sher Rehman's son of Sher Zaman.
5. The said bus was further searched and registration book and route permit of said bus were recovered from upper side of driving seat. The above named two accused persons were arrested and all articles recovered from above named accused persons were taken into police custody.
6. Memo of arrest was prepared at spot and read over to the witnesses who admitted the correctness of the same and had signed the same.
7. The learned counsel for the applicants has contended that the recovery was not made from the personal possession of the applicants, but was made from the secrete racks of the bus and at the time of the alleged recovery there were no private witnesses and police officials were made witnesses in serious violation of section 103 Cr.P.C. Per learned counsel the applicants are not the owners of the bus from where the recovery was made and the owner had escaped who was the actual accused, and the police for mala fide and ulterior reasons have been foisted the narcotics upon the accused persons. According to the learned counsel no name of the informer has been mentioned in the F.I.R. And even the bus has been released to the owner and no explanation has been given for the delay of 24 hours in sending the samples for chemical examination. In support of his contention, the learned counsel has relied upon the cases reported in 1997 SCMR 543, PLD 2005 Peshawar 81, PLD 2009 Lahore 362, 2009 PCr.LJ 1334, 2009 PCr.LJ 523 and 2010 PCr.LJ 567.
8. The learned Special Public Prosecutor A.N.F. Has seriously objected to the grant of bail on the grounds that huge quantity of heroin and charas were recovered from the possession of the applicants/accused and they were apprehended red-handed. Per learned the samples were taken and were sent to the chemical examiner in accordance with law and the results of the samples have come as positive. The learned counsel states that since the punishment provided for the offence is imprisonment for life or 14 years and fine upto one million rupees and the offence is also against the society therefore, the applicants/accused are not entitled to the concession of bail. In support of her contention learned S.P.P. Has relied on the following cases reported in 2010 SCMR 61, 2000 SCMR 1837, 2003 SCMR 573.
9. In the case of The State v. Abdul Ghani, reported in 2010 SCMR 61, it has been held that:-- "It is to be noted that the learned High Court has fallen into error in entering into the facts of the case. In this behalf the observations of the High Court that the respondent was not found in exclusive possession of the narcotic i.e. Heroin and Charas is not correct because according to the prosecution case, as well as according to the investigation officer 2.616 Kilogram heroin and 1.780 Kilogram Charas was recovered from his possession, which he was carrying on his motorcycle. The presence of the respondent along with recovered narcotics suggest to hold prima facie that he is involved in the commission of offence besides the sentence prescribed under section 9(c) is death or imprisonment for life, or imprisonment for a terms which may extend to 14 years, therefore, he was not entitled for bail. So far as the question of submitting the challan and making out the case for further inquiry is concerned, it has also no legal force in view of the law laid down in the case of Asmat Ullah Khan v. Bazi Khan and other PLD 1988 SC 621. In addition, it is to be noted that there is possibility of further inquiry in every case, therefore, it is not possible to release the accused notwithstanding the fact that he is involved in a heinous criminal case particularly in which a considerable members of the society including children, girls, men and women falling prey to drug trafficking is involved. The impugned order perhaps has been composed without taking into consideration the above facts, therefore, the same is not suitable."
10. In case of Muhammad Afzal Darzi v. The State, reported in 2000 SCMR 1837, it has been held that:-- "Accused was allegedly found in possession of 1500 gms of heroin... Contention of accused was that case against him was based on absolutely false allegations and was an outcome of his father's enmity with the police and that the recovery was fake..Accused also took the plea of his long detention for grant of bail.. Validity... Supreme Court declined the grant of bail keeping in view the huge quantity of heroin allegedly recovered from the accused and directed the Trial Court to conclude the trial within a period of three months from the date of the order of refusal to grant the bail by Supreme Court."
11. In the case of Afzaal Ahmed v. The State reported in 2003 SCMR 573 it has been held that:-- "Appreciation of evidence---Police witnesses---Credibility--- Members of police force are competent witnesses in the eyes of law and can be credited with veracity unless they are demonstrated to be false witnesses having maliciously accused an innocent person of the commission of an offence for ulterior motives."
12. I have heard learned counsel for the parties and perused the material available on record with the able assistance of both the counsels. My tentative view is A that the applicants/accused have been arrested red-handed by police in the raid conducted by police and have recovered large quantity of heroin and charas from their possession. There is reasonable explanation for non availability of private mashirs during the recovery proceedings and no mala fide motive has been given for implicating and foisting of huge quantity of heroin and charas. Report of chemical examination has come in the positive. The case laws relied upon by learned counsel for the applicants/accused, in support of his contentions are distinguishable and not applicable to the instant case. No case of further inquiry within the meaning of section 497(2) has been made out. In the light of above reported case laws, given circumstances and on the tentative assessment as above, I have come to the preliminary conclusion that the applicants/ accused are not entitled to the benefit of bail, particularly when the applicants/ accused are alleged to be involved in a heinous criminal case which affects the members of the community. Resultantly, this application is dismissed. Needless to mention that aforesaid observations are tentative in nature and should not influence the trial Court in arriving at a fair decision in accordance with law and based on the evidence to be adduced at trial.