1. ' MUHAMMAD TASNIM, J.---Applicant/accused Christophe Yakibongay son of John Yakibongay is booked in Crime No,38 of 2009 registered under sections 6, 7, 8, 9(c),14,15 of CNS Act, 1997, at Police Station ANF Clifton, Karachi. In the first place the applicant applied for bail before Special Court-I (CNS), Karachi, in Special Case No,138 of 2009 who dismissed the bail application per order dated 2-4-2011. Feeling aggrieved against the aforesaid order present bail application has been filed.
2. ' The case as set out in the F.I.R. Is that Inspector Ghulam Murtaza was present at Police Station ANF Clifton Karachi that higher officers received information through spy informant that international smugglers of Narcotics, namely, Khurram Shahzad, Haroon Rasheed and Negro Kristophe are residing at Flat No,F-1-13/C, Tauheed Commercial. Street 21st, Phase-V, DMA, Karachi, and are busy in concealing big quantity of heroin powder in cricket bats in order to smuggle to Canada and are present in their flat, the complainant along with subordinate staff raided the above said flat and after some resistance the police party entered in the flat and in front of TV Lounge, inside of bedroom two persons sitting on the floor, one out of them was negro, in front of him four cricket bats were lying and one white plastic shopper containing heroin powder of brown colour and three white plastic empty bags were taken into possession, overpowered both the sitting persons and in presence of witnesses inquired names and addresses from the overpowered persons. The person who opened the door disclosed his name as Haroon Rasheed son of Rasheed Ahmed resident of Khalidabad Nai Abadi Sarai Alamgir, District Gujrat, and presently resident of aforesaid flat while both the two persons sitting on floor, who were busy in concealing the heroin in cricket bat, one out of them disclosed his name as Khurram Shahzad son of Muhammad Aslam by caste Mughal resident of Montreal Kubic Canada presently resident of aforesaid flat while the second negro person disclosed his name as Christophe Yakibonge son of Johan Yakibonge resident of Montreal Kubna Canada presently resident of aforesaid flat. The plastic bag lying on the floor under their possession containing brown colour heroin, on weighing became 1.050 kilograms heroin, out of which 10 grams heroin was taken out for analysis of chemical examiner and was sealed in plastic, Khaki colour envelope while remaining heroin in the same plastic bag along with three plastic empty bags was sealed in white colour cloth bag. Moreover on checking the cricket bats, secret chambers were found in three cricket bags while forth bat was simple, all the four bats were sealed in white cloth bag. Then Khurram Shahzad and Cristophe disclosed that while coming from Canada both those had brought the intoxcication tablets Ecstasy with intention to sell, which were taken into possession.And counted then (116) white tablets, (60) blue tablets while (329) orange tablets total (835) tablets were recovered, which were weighted, which became (280) gram, which in the same way in white plastic bags were sealed in white cloth bag for analysis of chemical examiner. On conducting personal search from right side pocket of wearing Kanneez of Haroon Rasheed one black colour wallet, in which sum of Rs,1700, original CNIC of accused was recovered while from front pocket one Mobile Phone makers NOKIA along with SIM, and one Mobile Phone makers SAMSUNG along with SIM was recovered. On conducting search of second accused Khurram Shahzad from the pockets of his trouser one Canadian Passport bearing No,JX-056209 in the name of accused, one original CNIC card in the name of accused and Emirates Air's Ticket No, 1762125917221 in the name of accused were recovered, further from brown colour wallet Pakistani currency Rs,12,000 and dollars 10, foreign cards, different visiting cards, slips were recovered and from front pocket of trouser one phone makers Sharp along With SIM was recovered while on conducting search of third accused Christophe (Negro) from his pocket Canadian Passport No,ML- 021090 in the name of accused and one Air Ticket of Emirate having No,1289221361 in the name of accused and from brown colour valet Pakistan cash amount Rs,500 and (8) different foreign cards and different visiting cards were recovered.
3. ' In support of his contention learned counsel for the applicant submitted that prior to the present bail application earlier Bail Application No,1315 of .2010 was filed by the present applicant which was disposed by this Court per order dated 4-1-2011 without touching the merit of the case and with direction to the learned trial Court to dispose of the case by 30-1-2011. Learned counsel says that time granted by this Court has been elapsed but trial has not yet been concluded. He further says that on his application witnesses who were dropped by the prosecution have been ordered to be called and said witnesses are being examined by the Court. He further says that there is no likelihood of conclusion of trial in near future. Learned counsel further says that applicant was arrested on 4th September 2009 and ever since then he is in custody. He further says that delay of trial is not attributable to the applicant. He further says that other co-accused who were similarly placed and were assigned similar role in the F.I.R. Have been admitted to bail through Bail Applications Nos.1082 of 2010 and 118 of 2010. Learned counsel says that rule of consistency be followed and present applicant may also be admitted to bail. Learned counsel for the applicant has submitted that applicant shall not leave the jurisdiction of the trial Court without its permission and the learned counsel for the applicant has also invited my attention to the letter dated 28th December, 2010 of Canadian High Commission, Islamabad, whereby it has been undertaken that no replacement Canadian travel document would be issued to the applicant during the period he would be out on bail and his valid passport would be in the custody of the Court. In support of his contention learned counsel has relied upon the cases reported as GUL HASAN PENHYAR V. THE STATE (1997 SCM R 390), MUHAMMAD ASLAM V. THE STATE (1999 SCM R 2147), MUNAWAR HUSSAIN MANJ V.
4. THE STATE (2000 SCM R 1585) and ABDUL NADEEM V. THE STATE (2003 M LD 1504).
5. ' On the other hand, learned Special Prosecutor for ANF has opposed the grant of bail and submitted that ground of rule of consistency has already been agitated by the present applicant in earlier Criminal Bail Application No,1315 of 2010 hence the applicant cannot press his bail application on the said ground. He further says that delay in conclusion of the trial is not attributable to the prosecution but he is the applicant who has made application under section 540, Cr.P.C. For calling the prosecution witnesses and the trial is continuing due to the calling of P.
6. Ws. At the request of present applicant. He further says that the applicant is a foreign national there is likelihood that he may leave Pakistan admitted to bail.
7. ' I have heard the learned counsel for the parties and have gone through the record and the case- law cited at the bar.
8. ' It is an admitted position that applicant had filed Bail Application No,1315 of 2010 but such bail application was disposed of by this Court without touching the merits of the case and with a direction to the learned trial Court for conclusion of trial by 30-1-2011. It is also admitted position that other two co-accused who were similarly placed in the F.I.R. Have been admitted to bail through bail applications mentioned hereinabove. The trial is still on and more than two years have elapsed and present applicant is in custody. Following the rule of consistency the present applicant is entitled to bail. Even otherwise, direction issued by this Court has not been followed in letter and spirit and trial has not been concluded till date. In the case of MUHAMMAD ASLAM V. THE STATE (1999 SCM R 2147) the Hon'ble Supreme Court of Pakistan while dealing the above issue has observed as under:- "After hearing the learned counsel for the parties, we find that the trial against the petitioner has not been completed by trial Court despite direction issued by the High Court. The learned Law Officer is unable to give any explanation for noncompliance of the order of the High Court. This being so, the petitioner is admitted to bail in the sum of Rs,2,00,000 (rupees two lac) with two sureties each in the like amount to the satisfaction of learned Sessions Judge, Bhakhar. In the above terms this petition is converted into appeal and allowed,"
9. ' Following the dictum laid down by the Hon'ble Supreme Court of Pakistan and in the circumstances of the case the applicant is entitled to be admitted to bail following the rule of consistency. Accordingly, he is admitted to bail on his furnishing surety in the sum of Rs,200,000.00 (Rupees two hundred thousand) with P.R. Bond in the like amount to the satisfaction of learned trial Court.
10. ' The applicant shall surrender his passport before the Nazir of trial Court who shall retain the same till the case is decided. A copy of this order may be forwarded to the Canadian High Commission, Islamabad, for appropriate action.