1. TUFAIL H. EBRAHIM, J.---The applicant, who has been arrested under F.I.R. No.22 of 2010, registered against him under sections 6-9(c), 14, 15, C.N.S. Act, 1997 at Police Station ANF Clifton, Karachi, has preferred the above bail application on the following facts and grounds: The brief facts, as per the F.I.R., are that the ANF officials on spy information secured charas weighing 3.850 kgs in the shape of rods in four packets, which was hidden by the applicant in the fold of his shalwar (trouser). Samples of the charas were secured and two separate parcels were prepared and sealed under memo prepared on the site at the same time. The ANF officials brought the applicant together with the crime property to ANF Clifton Police Station and registered F.I.R.
2. Under section 619(c)/14115 of C.N.S. Act, 1997 and after' completion of investigation including dispatch of said samples to the expert, the appellants stood charge-sheeted in the Court of law for the purpose of trial. The first bail application moved before the learned trial Court was dismissed vide order dated 18-8-2010, passed by the Special Court No.1 C.N.S. Karachi. Criminal Bail Application No.892 of 2010 was filed by the applicant in this Court on 25-8-2010, which was disposed of vide order dated 6-10-2010, directing the trial Court to decide the matter within two months without fail.
3. Mr. Naveed Ali, learned counsel for the applicant, has vehemently argued that in pursuance of the orders of this Court the applicant pursued his case before the learned trial Court, however, due to delaying tactics of the prosecution, the case was not disposed of within the stipulated period of two months, i.e.. Upto 6-12-2010. Per learned counsel upon reference of the learned trial Court dated 11-12-2010, this Court vide order dated 24-12-2010 further granted time to dispose of the case by the end of next month, i.e. Upto 31-1-2011. The trial was not completed within the extended time, therefore, second bail application was filed by the applicant before the trial Court which was also dismissed vide order dated 21-2-2011. Per learned counsel the applicant has seriously pursued his case before the trial Court and never applied for any adjournment, except for one date for which only adjournment was granted for three days. It was vehemently agitated that the counsel for the applicant diligently appeared before the trial, Court and never adopted any delaying tactics and appeared on each and every date of hearing, but the trial Court miserably failed to appreciate such conduct of the applicant and failed to complete trial in terms of the specific direction of the High Court. Per learned counsel the prosecution has closed the side on 18-2-2011. However, the co- accused, namely, Mst. Dilshad has made an application under section 540, Cr.P.C. For reopening the prosecution side and, therefore, till the said application is adjudicated the statement of the applicant under section 342, Cr.P.C. Cannot be recorded. Per learned counsel since 1-3-2011, the learned trial Court has become vacant due to the absence of the Presiding Officer and therefore there is little chance that the case would be decided in the near future and for no fault of the applicant, he is suffering irreparable losses and has remained behind the bars for almost one year.
4. Per learned counsel the case against the applicant is unbelievable as it is not possible to fit in the alleged 3.85 Kgs charas in the nefa (fold) of the shalwar of the applicant. It was further argued that the co-accused, who was also found to be in possession of 1.3 Kgs of charas, has been granted bail by this Court. Per learned counsel there has been violation of section 103, Cr.P.C. As no attempt was made to include independent persons as mashirs although private persons were available at the time of arrest. Per learned counsel the applicant has no previous record and is .a respectable law abiding citizen and there is no likelihood of his absconding or tampering with the prosecution evidence if released on bail.
5. The Learned counsel for the applicant in support of his contentions has relied upon the following case-laws:--
(1) 2005 M LD 802 Karachi,
(2) 2008 PCr.LJ 1326,
(3) 2007 YLR 1311,
(4) 2009 YLR 1777,
(5) 2006 M LD 630,
(6) 2008 PCr.LJ 1333.
6. Learned Special Prosecutor ANF has vehemently opposed the grant of this application on the grounds that the side of the prosecution was closed on 18-2-2011, which would imply that the prosecution has concluded the trial. The delay of about 18 days for concluding the trial could not be placed on the shoulder of the prosecution as on two occasions the learned counsel for the applicant had also sought adjournment and even otherwise the delay was not deliberate and mala fide on the part of prosecution and as such bail should not be granted on the ground of delay in concluding the trial by the prosecution. It was further stated that the counsel of the co-accused has called for recalling prosecution witnesses for which application under section 540, Cr.P.C. Has been filed and the prosecution cannot be blamed for the non-availability of the Presiding Officer of the trial Court. Per learned State counsel if the applicant was serious in pursuing his case he could have made application for transfer of his case to Special Court No. II, (C.N.S.) Karachi. Per learned counsel none of the prosecution witnesses has exonerated the applicant and sufficient material is available on record to implicate the applicant in the commission of the offence. Per learned counsel huge recovery of 3.850 kgs of charas from the possession of the applicant and positive report has been received from the Chemical Examiner. Per learned counsel the offence is seriously heinous and against the society at large and the bail application should be rejected.
7. I have considered the arguments put forward by the learned counsel the learned Special Prosecutor ANF and perused the record including the case laws cited at the bar. The applicant has been arrested along with a plastic bag containing 3.850 kgs of charas from his personal possession. The said contraband was recovered from him on the spot in presence of police officials. Persons passing by were approached for becoming mashirs but none had shown willingness. Generally in our society passerby due to fear and apprehension of criminals, police and even appearing in courts of law are not inclined to act as mashirs. Association of private mashirs within the meaning of section 103, Cr.P.C. Has specifically not been made applicable to the cases falling under C.N.S. Act 1997. The report of Chemical Examiner has come in the positive and there is no delay in lodging of F.I.R. And the applicant has been implicated in this case with a specific role and the offence is against the society at large. The case of the co-accused who has been granted bail cannot be equated on the principle of consistency on the ground that it was a border line case and the co-accused was a woman. A The case-law cited by the learned counsel for the applicant is distinguishable. In most of the reported cases the applicant had remained behind bars for period of more than one year and cases were not proceeded due to fault of prosecution and in some cases it was not likely that the cases of the prosecution would be completed in the near future. No doubt the applicant cannot be detained as a punishment, but in the instant case there has not been any undue delay on the part of prosecution.
8. It is my tentative view that there is sufficient material available on record to associate the applicant with the commissioning of heinous offence and such type of crimes are on the rampant and against the society and concession or leniency in granting bail on the grounds of B delay should be dealt strictly in accordance with law and looking into all the prevailing circumstances of the case. Prima facie no case of further investigation within the meaning of section 497(2) has been made out for the grant of bail and accordingly the bail application is dismissed.
9. The trial Court is directed to decide the case on merits at an early date, preferably within a period of three months and if the Presiding Officer of Special Court No.1, (C.N.S.) Karachi is not available, then prosecution should fully cooperate with the applicant for the transfer of the case to another court. The above observations are tentative in nature and the trial Court shall not be influenced by the same and decide the case on merits on the basis of the evidence adduced by the parties.