1. ' TUFAIL H. EBRAHIM, J.---The applicant being aggrieved and dissatisfied with the order dated 7-2- 2011, whereby bail application of the applicant was dismissed by the Court of Special Court-II (CNS)
2. Karachi, has preferred this application in F.I.R. No,15. Of 2010 registered at P.S. Customs for the offence punishable under section 6/7/8/9-C of C:N.S. Act, 1997.
3. ' The brief facts, as per the F.I.R., are as follows:- "A credible information was received by the undersigned that ,an attempt would be made to smuggle huge quantity of narcotics in the garb of import consignments originating from South American countries. Accordingly strict vigil was maintained by the Port Control Unit for consignments originating and arriving from South America. On 2nd October, 2010 an import consignment which had arrived from Suriname on vessel Hanjin Buenos Aires having VIR No,7972 of 2010 Index No,347 stuffed in (1 x 20) container bearing No,AMFU3082330, destined for Lahore was suspected to be the one Consignee's name and the name of notified party as per Bill of lading of the said consignment was the same as mentioned against Serial No,1 of Column No,4 and the shipper's name as mentioned against serial No,2 of Column No,4 of this F.LR. Whereas the VIR of the said vessel showed importer's name as "Miraj Enterprises" having NTN No,3112230-2 and business address as "25-A, Hassan Town Multan, Road, Lahore. Owing to the sensitivity of the issue the container was put on hold at KICT and it was monitored that if some one claims, it for clearance. However since its arrival on 22nd September, 2010 and after putting it on hold on 2nd October, 2010 nobody came forward to claim the goods till 8th October, 2010. As such the container bearing intact shipping line seal CMA-CGM-7341767 and Suriname Customs Seal No,DS43837 was shifted from KICT to NMB wharf in presence of mushers namely Sardar A. Qayyum and Fakhruddin. The container was placed in front of the office of the Port Control Unit/Drug Enforcement Cell Headquarters at NMB Wharf and the same was opened after verifying and cutting of intact seals as mentioned above in presence of musheers whose names are also mentioned above which resulted in the recovery of plywood sheets. .The plywood sheets were accordingly counted and were found to be 280 in number. Owing to the information about presence of contraband stuff inside the plywood sheet the same were very carefully examined and some of them were found to be suspicious. Minute examination of the suspicious plywood sheets was then carried out and the outer layers were removed and it was found that it contained 11 polythene packets duly concealed by way of pasting them with special adhesive inside the specially built cavities within the plywood sheet. Accordingly 33 plywood sheets were found containing 395 sealed polythene packets (1 sheet with 11 packets and 32 sheets with 12 packets each) duly concealed in the same fashion as mentioned above and all of them were found stuffed with a white colour powder. All the plywood sheets which were found stuffed with the white colour powder were assigned serial number from 1 to 33 and the polythene packets so recovered were also assigned sheet-wise number as well. Weighment of all the packets so fecovered sheet- wise was done and found to be as follows: S.NO. Sheet No. Number of Polythine Packets recoveredWeight in KGs.
4. (Gross)
5. 1 1 11 6.000 2 2 12 6.900 3 3 12 7.000 4 4 12 7.000 5 5 12 6.890 6 6 12 6.900 7 7 12 7.000 8 8 12 6.870 9 9 12 6.900 10 10 12 6.840 11 11 12 6.860 12 12 12 7.000 13 13 12 6.690 14 14 12 6.860 15 15 12 6.900 16 16 12 6.800 17 17 12 6.940 18 18 12 6.940 19 19 12 6.760 20 20 12 7.000 21 21 12 6.880 22 22 12 6.700 23 23 12 6.900 24 24 12 6.970 25 25 12 6.820 26 26 12 6.740 27 27 12 6.900 28 28 12 6.940 29 29 12 6.900 30 30 12 6.800 31 31 12 6.780 32 32 12 6.900 33 33 12 6.900 TOTAL 226.000K.Gs Thus a total of 226,000 Kgs (gross) Cocaine was recovered. One of the polythene packet so recovered was accordingly opened and the white colour powder stuffed therein was checked with the help of narco field test kit provided by the UNODC which gave positive result for Cocaine. Upon confirmation of Cocaine, 280 plywood sheets along-with 395 polythene packets stuffed with Cocaine weighing 226,000 Kgs (Gross), (1 x 20) Container No,AMFU-3082330 along-with cut shipping line Seal No,CMACGM-7341767 and Suriname Customs Seal No,DS-43837 were also seized in presence of musheers named above under the cover of a musheernama prepared on the spot.
6. Moreover, three representative samples each approximately weighing 10 grams (net) from amongst the packets recovered from each of the sheets were drawn and sealed in presence of musheers named above. Bulk of the seized Cocaine (sheet-wise) was also sealed in presence of musheers."
7. ' Hence the above F.I.R. Was lodged and after completion of investigation including dispatch of said samples to the Expert, interim sheet has been submitted, in the Court of law in which accused Mir Kashit Imran, Mst. Rubina Mir, Mir Iftikhar Ahmed and Judith Naomi Murray were shown as absconders. Thereafter the applicant was arrested from Lahore. The first bail application on behalf of the applicant was moved before the learned trial Court which was dismissed vide order dated 7- 2-2011. Hence this bail application.
8. ' Mr. Khawaja Shamsul Islam, learned counsel for the applicant, has vehemently argued that name of the applicant does not appear in the F.I.R. And no specific role has been attributed to the applicant. Per learned counsel there is no document which could show that the applicant or his firm is the importer or has imported any plywood sheets from any South American Company. Per learned counsel the applicant or his firm is not the registered importer within the meaning of sections 155A, 155B, 155C and 155D of the Customs Act 1969, nor the applicant or his firm is on Active Taxpayers' List maintained by FBR and as such was not entitled to file/lodge any Bill of Entry and-no Import Manifest has been filed to show the name of the applicant or his firm as an importer. It is further contended that the applicant and his firm has no concern with the import of consignment of plywood sheet and even at the time of arrival of consignment at Karachi, the applicant was not available in Karachi and no Bill of Entry or any other document within the meaning of sections 79 and 80 of the Customs Act were filed by the applicant or his firm. Per learned counsel the alleged goods were within the jurisdiction of the Customs authorities, but the Customs Rules 387, 389, 391, 392, 397 and 398 as well as provisions relating to issuance of search and arrest warrants within the meaning of sections 162 and 163 of the Customs Act were not adhered to and therefore the entire action is illegal and void and the F.I.R. Is liable to be quashed. Learned counsel has further argued that nothing was recovered from the possession of the applicant and it is clearly mentioned in the interim charge sheet that at the initial stage of investigation there was no material available on which basis the Messrs Mir Enterprises could be included in the investigation, which also creates doubt in the prosecution case.
9. ' Per learned counsel the interim challan was submitted without receiving the report from the Chemical Examiner. Per learned counsel Messrs Mir Enterprises deals in sale of rice and dairy products and is based in Wazirabad and Mureedke and has never imported any consignment from abroad and on the contrary the name of Messrs Mairaj Enterprises did appear in the F.I.R. But no investigation was commenced against them.
10. ' Per learned counsel the shipping document as well as clearing and forwarding document of the consignment which arrived at Karachi Port, does not contain the name of the applicant or his firm with regard to his involvement as importer. The booking confirmation document does not contain the name of the applicant on the contrary the Bill of Lading of Hanjin Shipping shows that the alleged container was loaded at Khor Fakkan, UAE and the name of consignee and notifying party was Messrs Southern Agencies (Pvt.) Ltd., which arrive at Karachi Port on 22-9-2010. Per learned counsel the Bill of Lading relied by the prosecution is not the Original Bill but an attested copy of Bill of Lading, which is unsigned by the Carrier or the Shipper and the original of the same does not exist. In the Bill of Lading relied by the prosecution, there is no mention of trans-shipment, rather it is mentioned that the port of loading was Paramaribo and port of discharge as Karachi. Per learned counsel the vessel name has been mentioned as 'GINA', which never arrived at Karachi, which creates doubt in the case of the prosecution. Per learned, counsel as per contents of F.I.R. And as well as the VIR of the vessel showed importers' name as Messrs Mairaj Enterprises, but no investigation conducted against the said firm. For mala fide and ulterior reasons Messrs Mir Enterprises and its partners have been falsely implicated in the interim charge sheet. Per learned counsel although complainant had credible information as tb smuggling of Narcotics from South American countries and strict vigil was maintained and were fully aware of the arrival of the vessel Hanjin Buenos Aires on 22-9-2010, and container was watched/detained by Customs Authorities, but still they did not take the statement of the captain of the vessel Hanjin Buenos Aires. Per learned counsel the consignment arrived and was off loaded at KICT Terminal but none of the employees from the Terminal nor shipping crew were cited as witnesses or made mushirs. Per learned counsel there is no concept of keeping the goods in 'Hold' within the meaning of Customs Act, 1969 and the alleged container was unlawfully removed from the premises of KICT on 8-10- 2010 and thereafter the same was desealed in the absence of private mashers and samples of the alleged so-called cocaine were not sent to laboratory for chemical analysis within 72 hours of seizure as required under the law and no explanation has been given for sending the said samples to Islamabad and not sending the said samples to any of the three laboratories situated at Karachi. Per learned counsel the applicant and/or his firm has never filed any Bill of Entry nor even tried to get the consignment in question released and there is no evidence against the applicant which could connect him with the commission of the alleged offence. Per learned counsel only 422.9 grams of alleged cocaine was sent for chemical examination and therefore it is a case of section 9(b) and not a case of 9(c).Of the C.N.S. Act and even on this ground bail should be granted to the applicant.
11. ' The learned counsel for the applicant in support of his contentions has relied upon the following case-laws:-- 2009 YLR 2277, 2010 PCr.LJ 572, PLD. 1972 SC 277, 2010 PCr.LJ 583, 2010 PCr.LJ 611, 2010 PCr.LJ 825, 2010 PCr.LJ 1087, 2011 PCr.LJ 72, 2010 PCr.LJ 348, PLD 2004 SC 856, 2011 SCM R 165, 2003 PCr.LJ 1139, 2007 PCr.LJ 514, 2003 YLR 2675, 1997 SCM R 947, 2007 YLR 1601, 2010 SCM R 1162, 2010 YLR 2811, 2010 SCM R 1160, 2010 SCM R 1016, 2010 SCM R 927, 2010 SCM R 841, PLD 1995 SC 34, 2009 M LD 1151, 2009 YLR 135, PLD 2008 Kar. 14, 2008 YLR 693, 2006 PCr.LJ 1251, 2000 PCr.LJ 738, 2000 M LD 842, 2004 CLD 603, PLD 1980 Kar. 54, 2004 PTD 997, PLD 1974 Kar. ,49, 2011 YLR 789, 2011 YLR 809, 2011 YLR 833 ' Mr. Sibtain Mahmud, the learned counsel for the complainant has vehemently opposed the grant of this application on the grounds that sufficient material is available on record which could connect the applicant with the commission of the offence. Per learned counsel prior to registration of the firm the applicant was its proprietor. Learned counsel further contended that interim charge sheet has been submitted before the trial Court in which the name of applicant has been shown as absconder on the basis of material collected against him. Per learned counsel statement of Zulfiqar Ali is against the applicant and none of the prosecution witnesses in their respective statements has enonerated the applicant and there is sufficient material available on record to implicate the applicant in the commission of the offence. Per learned counsel sections 79 and 80 of the Customs Act referred by the learned counsel are in respect of declaration and assessment for home consumption or warehousing and checking of goods declaration by the customs; the said sections 155A, 155B, 155C and 155D of the Customs Act, are not the charging sections and for the purposes of this case provisions of C.N.S. Act 1997 shall be applicable within the meaning of sections 72 and 74 of C.N.S. Act. Per learned counsel the container was shifted from KICT and seals were opened in the presence of masheers and huge recovery of 226 Kgs. Of cocaine was affected and positive report has been received from the Chemical Examiner. Per learned counsel serious and heinous offence against the society at large has been committed by the applicant and other accused and the bail application should be rejected. In support of his contention the learned counsel has relied upon the following case-law.
12. ' 2001 SCM R 1083, 2003 SCM R 1237, 2003 SCM R 573, PLD 1998 SC 97, 2010 PCr.LJ 310, 2005 PCr.LJ 1025, 2007 PCr.LJ .615, 2006 M LD 485 ' I have considered the arguments put forward by the learned counsel and perused the record including the case=laws cited at the bar.
13. The name of the applicant and his firm does not appear in the F.I.R and name of Messrs Mairaj Enterprises have been mentioned therein on the basis of VIR of the said vessels as the importer of the said container, but surprisingly the names of the proprietors/partners Messrs Mairaj Enterprises have not been included in Column No,4 of the F.I.R. The applicant and his firm is not the registered importer within the A meaning of sections 155A, 155B, 155C and 155D of the Customs Act, nor the applicant or his firm is on Active Taxpayers' List of FBR and as such was not entitled to file/lodge any Bill of Entry. No Import Manifest has been filed to show the name of the applicant as the importer of the container. No Bill of Entry or any other document within the meaning of sections 79 and 80 of the Customs' Act was filed by the applicant or his firm. The alleged goods were within the jurisdiction of the Customs authorities, but provisions relating to issuance of search and arrest warrants within the meaning of sections 162 and 163 of the Customs Act were not adhered to and no explanation has been given as to the removal of the alleged container from KICT. There is delay in sending the alleged cocaine for chemical analysis and no cogent reason was given for sending the same for examination at Islamabad and not at Karachi where the alleged contraband was recovered.
14. ' Prima facie there are two sets of Bill of Lading on record which are also not the originals and the same are not signed or stamped by the shipper or the Master of the Vessel. The shipping documents as well as clearing and forwarding documents of the consignment which arrived at Karachi Port; does not contain the name of the applicant or his firm with regard to the involvement of the applicant and his firm in respect of the alleged import. The booking confirmation documents does not contain the name of the applicant on the contrary the Bill of Lading of Hanjin Shipping shows that the alleged container was loaded at Port Khor Fakkan, UAE and the name of consignee and notifying party was Messrs Southern Agencies (Pvt,) Ltd., in respect of the container which arrived at Karachi Port on 22-9-2010. There is no mention of trans-shipment, in the alleged Bill of Lading relied by the prosecution, rather it is mentioned that the port of loading was Paramaribo and port of discharge as Karachi.
15. ' Prima facie from the record it appears that there are two sets of Bill of Lading and there is ,doubt as to the name of the importer as per the VIR of the vessel, the firm of the applicant does not have ATL and is not registered as an importer and exporter with FBR. The alleged cocaine was not recovered from the physical possession of the applicant, nor any overt or covert attempt was made to take possession of the said container. Admittedly the original. Bill of Lading is not available to show the ownership of the container nor any other import documents are on record which would prima facie show that the applicant or his firm was the importer or had knowledge of the alleged goods to establish nexus with the applicant in the commission of the offence.
16. ' From the available record and for the discussion and reasons as aforesaid it is my tentative view that there are certain anomalies in the prosecution case which require further investigation and at this stage no credible or tangible evidence is available against the applicant and his firm to connect him with the commission of the alleged offence and as repeatedly held by this Court and the apex Court that deeper appreciation of evidence is not warranted or desirable at bail stage and the benefit -of doubt even at the bail stage should also go in favour of the applicant and whenever reasonable doubt arises as to participation of the applicant in the alleged offence, bail should not be withheld as punishment. That no useful purpose will be served by keeping the applicant behind the bars since all materials is with the prosecution and there is no likelihood of tampering of prosecution evidence by the applicant.
17. In the circumstances and facts of the case, it is my tentative view that it cannot be said that there is strong and substantial reasons to believe and connect the applicant to the commission of the alleged offence. The applicant has made out a case of further inquiry within the meaning of subsection (2) of section 497,. Cr.P.C. And in the circumstances is entitled to the benefit of bail.
18. Accordingly the applicant is granted bail subject to submission of two sureties in the sum of Rs,10,00,000 (Rupees Ten Lacs only) each and personal bonds in the like amounts to the satisfaction of the trial Court.
19. ' 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 to be adduced by the parties.