' MUHAMMAD TASNIM, J.---Applicant has been arrested in Crime No,21/2011-JIAP, under section 9(c) of the Control of Narcotic Substances Act, 1997, P.S. JIAP.
2. Initially applicant had applied for bail before learned trial Court, but his bail application was rejected by the learned trial Court per order dated 19th September, 2011. Against the aforesaid order present bail application has been filed.
3. Facts of the prosecution case, as set out in the F.I.R., are that credible information had been passed on by the Additional Collector of Customs, Jinnah International Airport, Karachi that attempt would be made to smuggle huge quantity of contraband narcotics out of Pakistan under the garb of medicines in commercial quantity with connivance of some customs officials posted at the International Departure Hall, Jinnah International Airport, Karachi. In this connection specific instructions were issued to keep strict watch over all the outgoing baggage and additional officers including IPS Muhammad Iqbal (MI) were also posted at the International Departure Hall for strict surveillance. During the course of surveillance on the intervening night of 20th/21st August, 2011 said IPS Muhammad Iqbal noticed that a passenger with four suitcases was heading towards ASF's baggage scanning machine installed immediately after the Fast Track inside International Departure Hall and instructed the complainant SPO Rashid Saeed to stop the passenger and his baggage. The complainant SPO Rashid Saeed immediately rushed to the ASF's scanning machine where the baggage had been scanned and scanning images indicated the presence of medicine in huge commercial quantity inside the said suitcases and stopped the passenger after he had collected his four suitcases from ASF's scanning machine and brought him back to the customs examination counters as it had become imperative to examine the baggage so intercepted. Prior to baggage examination the passenger's travelling documents were scrutinized which disclosed his name as Ghulam Mustafa son of Muhammad Samad Ali who was leaving for Dacca via Doha by Qatar Airways Flight No,QR-319 from Karachi, his baggage comprising four suitcases was cursorily examined in presence of two witnesses namely SPO Muhammad Imtiaz Ali and SPO Ashraf Mahmood and found to contain miscellaneous allopathic medicines kept on the upper layer under which bulk of herbal medicines packets viz. Ma'jun Dabeed-ulWard and Khamira Gaozaban were stacked. At this moment three customs officials namely IPS Asif Naseer, SPO Syed Karak Haider and SPO Naeem Ahmed (posted in the same shift) asked IPS Muhammad Iqbal to let the passenger and his baggage go out of the custom hall, however it was not accepted and in this regard IPS Asif Naseer also made a phone call to A. Hanif Khan requesting for release of the passenger and his baggage but the Assistant Collector also did not allow this request. Subsequently the said four suitcases were examined in presence of above said witnesses during which all herbal medicine packets were taken out and were found to 735 in numbers, the said 735 packets were unpacked and were found to contain one plastic jar each and all the said plastic jars were found to contain off-white heroin powder instead of Ma'jun Dabeed-ul-Ward and Khamira Gaozaban in fact prepared in wet-paste form, the recovered heroin powder was instantly tested with Narcotic Test Kit which a positive result upon finalization of heroin powder recovered from 735 plastic jars was found to be 73.5 Kgs (net) upon weighment. Three representative samples each weighing about 20 grams were also drawn and sealed under the signatures of above said witnesses. Heroin powder so recovered was accordingly seized along with the containers thereof and passenger's travelling documents under' the cover of mashirnama. It is mentioned in the F.I.R that during preliminary investigation conducted subsequent to the recovery of seizure of 73.5 Kgs heroin powder the owner passenger Ghulam Mustafa disclosed that his safe passage through Customs, A.N.F. And A.S.F.
Channels was arranged and promised by Custom SPO Naeem Ahmed, inquiries in this regard further averred that SPO Naeem. Ahmed had hatched a conspiracy with other two customs officials namely Asif Naseer (IPS) and S. Karar Haider (SPO) to arrange clandestine passage and clearance of above named passenger and his baggage through Customs, A.N.F and A.S.F channels. These facts were conveyed to Additional Collector of Customs and Assistant Collector of Customs and on their instructions customs officials IPS Asif Naseer and SPO Naeem Ahmed were arrested along with owner passenger Ghulam Mustafa while SPO S. Karar Haider surreptitiously left the place of incident. The above named arrested accused persons were issued with notices of arrest and efforts were made to apprehend the absconding accused S. Karar Haider and efforts were also made to identify and apprehend other officials, if any, involved and F.I.R was lodged accordingly.
4. Learned counsel for the applicant, in support of the bail application, has submitted that present applicant has been implicated in the crime falsely as neither any contraband articles were recovered from him nor he was arrested from the place of occurrence. He further submitted that as per prosecution case principal accused Ghulam Mustafa was intercepted in the departure lounge of the Jinnah International Airport Karachi at about 4.40 a.m. In the morning on 21-8-2011.
Aceordingly, learned counsel invited my attention to the mashirnama prepared at 0440 hours on 21-8-2011, which shows that only accused Ghulam Mustafa was intercepted while proceedings to Dhaka and baggage contained some allopathic medicines kept in different boxes, which contained Ma'jun and other items mentioned in the mashirnama. He further submitted that in the evening at about 1730 hours on 21-8-2011 another mashirnama was pared, wherein it has been stated that said herbal medicines recovered from Ghulam Mustafa were actually heroin, which is weighed to 73.5 K.Gs. Learned counsel further invited my attention to another mashirnama prepared at 1745 hours at the same day, wherein for the first time name of the present applicant appears in said mashirnama. As per this mashirnama a mobile telephone was allegedly recovered from the possession of applicant, which was taken into custody. He further submitted that after preparation of above three mashirnamas F.I.R was registered at 1830 hours on 21-8-2011, wherein applicant has been booked in the F.I.R on the statement of accused Ghulam Mustafa who allegedly disclosed that the applicant had arranged his safe passage through Customs, A.N.F and A.S.F.
Learned counsel, further submitted that there is no material available with the prosecution, which connects the present applicant with the commission of offences charged. He further submitted that prosecution does not hold any material, which creates relationship of the applicant with the principal accused Ghulam Mustafa. In support of his contentions, learned counsel for the applicant relied upon the following case-law:--
(1) THE STATE THROUGH D.-G., A.N.F., RAWALPINDI V. MUHAMMAD SALEEM KIIAN (2011 SCMR 863),
(2) SUBA KHAN V. MUHAMMAD AJMAL AND OTHERS (2006 SCMR 66),
(3) THE STATE THROUGH DEPUTY DIRECTOR ANTI-NARCOTIC FORCE, KARACHI . V. SYED ABDUL QAYUM (2001 SCMR 14),
(4) AKHTAR ALI V. THE STATE (2005 PCr.LJ 1947),
(5) CRIMINAL MISCELLANEOUS No,7 OF 2009 (DATED 17-1-2009)
5. As against the above, learned Standing Counsel has vehemently opposed the grant of bail and submitted that prosecution holds ample material, which connects present applicant with the commission of offence. She further submitted that huge quantity of heroin was recovered from the possession of co-accused Ghulam Mustafa and applicant has acted as his agent and provided safe passage to the principal accused while leaving Pakistan.
6. I have heard the learned counsel for the parties and have gone through the record so also case- law cited at the bar.
7. From the perusal of the record, it appears that accused Ghulam Mustafa was intercepted at the departure lounge of Jinnah International Airport Karachi at about 0440 hours and mashirnama was prepared, but said mashirnama not contain the name of the present applicant. Second mashirnama was prepared after nine hours of first mashirnama on the same day at about 1730 hours, but said mashirnama as well !Did not contain the name of the present applicant. It is for first time when F.I.R was lodged at 1830 hours, wherein applicant was joined as accused person and that too he was booked in the crime on the statement of co-accused. It is an admitted position that no recovery was effected from the applicant. It is also admitted by the prosecution that there is no material with them to create any relationship of Ghulam Mustafa with the applicant. There is also no allegation that applicant helped the principal accused during his passage through departure lounge. It is also an admitted position that applicant has been implicated on the statement of co-accused. In the circumstances, case of the prosecution against the applicant is not free from doubt and false implication cannot be ruled out, which requires further enquiry in terms of subsection (2) of section 497, Cr.P.C.
8. Accordingly, present applicant is admitted to bail on his furnishing solvent surety in the sum of Rs,5,00,000 (Rupees Five Lac) and P.R. Bond in the like amount to the satisfaction of learned trial Court.