' MUHAMMAD TASNIM, J.---Office objection listed at Serial No,1 is over-ruled.
1. Applicant/accused Syed Ali Qasim Gillani is booked. In Crime No,B-889/ DC1/2011 dated 21-5-2011 registered under section 9(c) read with sections 15 and 22 of C.N.S. Act, 1997 at P.S. Customs.
2.. In the first place applicant applied for bail before the learned Special Court-II .(CNS), Karachi, but his bail application, moved in Special Case No,307 of 2011, was rejected by the learned trial Court per order dated 29th June, 2011. Against the aforesaid order present bail application has been filed.
3. The facts as set out in the F.I.R. Are that Messrs Universal Shipping (Pvt.) Ltd., has sent an information vide letter dated 17-5-2011 to the Directorate General Intelligence and Investigation F.B.R., Karachi, pertaining to the seizure of Raw Heroin weighing 214.5 kilograms recovered from a consignment of cement exported in five (5 X 20ft) Containers bearing Nos.CRXU3000804, CRSU 1131995, CRXU3440629, CRSU1148529 and CRXU3184532. The said consignment was shipped through MV AL-Mathea Voyage 1102E, sailed on 1-4-2011 from KICT, Karachi. Reportedly 65 packets of heroin were concealed in the middle of cement bags. The shipping agency further disclosed' that the aforesaid information was received through massage from their Principal's destination agent Messrs Ben Line Agencies (Malaysia) Sdn Bhd. Besides communicating the information forwarded various documents details of which are mentioned in the F.I.R. The scrutiny of the aforesaid documents divulged that Messrs Chun On Services Clearing and Forwarding Agent Karachi (CHAL No,2652), had requested Messrs Universal Shipping Karachi on behalf shipper Messrs Bestway Cement Limited to issue a loading program for five (5X2Oft) Containers for the export of cement to Port Kelang (Malaysia). On the basis of information, Irshad Junaid owner of Messrs Chun On Services Clearing and Forwarding Agency (CHAL No,2650) was immediately contacted at his office situated at C/12, KDA Scheme No,1, Karsaz Road, Karachi. On preliminary investigation he disclosed that Messrs Bestway Cement Limited Islamabad nominated his clearing agency as their authorized forwarding agency for the shipment of cement to Malaysia and they have also sent the shipping documents. Besides forwarding the shipments of cement, Mr. Shahid General Manager of Messrs Bestway Cement Limited, Islamabad had intimated him that the consignment of cement would be sent to one Syed Ali Qasim Gillani owner of Messrs Centaur Resources Lahore to be stored in his go down situated at Hamza Godown Plot No,C-267, Gulbai Sher Shah near Paracha Qabaristan, Karachi, from where the consignment would be loaded in containers and shipped. Accordingly, Messrs Chun On Services Karachi arranged the empty containers against loading program from Messrs Universal Shipping (Pvt.) Ltd., Karachi and also electronically filed Goods Declaration (GD)
CRN E-G-1767595-290311 from his User ID No, CACHU 2905-1 through MC (PaCCS), Customs House Karachi, for the Export of five (5x2Oft) Containers, bearing Nos .CRXU3000804, CRSU 1131995, CRXI_3440629, CRSU1148529 and CRXU3184532, containing 280 pp bags, each bag weighing 50 kgs, total gross weight 140,000 Kgs. (140MT), of cement of Bestway Brand. The forwarding agents provided the copies of the documents as mentioned in the F.I.R.
4. It is further stated in the F.I.R. That the examination of Goods Declaration CRN E-G-1767595-290311 revealed that Messrs Bestway Cement Limited, situated at 5th floor UBL Building Jinnah Avenue, Blue Area Islamabad exported a consignment of cement under HS Code 2523.2900 weighing 140(MT) valued Rs,690,032 against E Form No,ABL-0101220 dated 18-3-2011 issued by Messrs Allied Bank of Pakistan Limited, Islamabad NTN 0656656 consigned to Messrs Khyber Port SDN BHD, Port Kwelang, Malaysia. The said consignment was processed and forwarded by Messrs Chun On Services Karachi (CHAL No,KAPR 2650). The Malaysian Customs has also detained/seized another consignment of five (5X2Oft) Containers No,CRSU 1308714, CRSU 1309876, CRSU 1310028, VMLU3500931 and VMLU3504095 of identical description, quantity, weight and value by the same shipper and consigned to the same consignee shipped against CRN E-G-1702879-030211. It has been gathered through source that the said consignment of cement was also loaded from the same Hamza Go down of Syed Ali Qasim Gilani situated at Plot No,C-267, Gulbai Sher Shah near Paracha Qabaristan, Karachi. It is surprising to point out that Messrs Bestway Cement Limited Islamabad had opted to store their cement in the go down of a private person instead of storing in their own go down contrary to the rules of business.
5. It is also stated in the F.I.R. That the accused persons mentioned at Column No,4 have conspired together to smuggle raw heroin with a novel modus operandi to conceal it in consignments of cements using Green Channel facility available to Messrs Bestway Cement Limited and misused the MCC PaCCS Computerized System, to get their consignments cleared without examination.
Thus the accused persons have violated the provision of section 9(C) read with sections 15 and 22 CNS Act of 1997 and section 155(B)(C)(D) of Customs Act, 1969. After in depth investigation, the role of customs officials, clearing and forwarding agent and other culprits involved in crime if any would be incorporated.
6. Learned counsel for the applicant in support of this bail application has submitted that there is delay of three months in lodging of F.I.R. Which has not been explained by the prosecution. He further says that F.I.R. Has been lodged on the basis of some information received from shipping agent in Malaysia but no documentary evidence is available with the prosecution in this regard. He has further submitted that no seizer report, chemical examination report and report regarding verification of weight are available with the prosecution. He further says that no recovery whatsoever has been effected from the present applicant. He further submitted that no role has been assigned to the applicant in the F.I.R. Learned counsel says that allegations in the F.I.R. Are general in nature and no specific role has been assigned to the applicant in the challan. He has further invited my attention to paragraphs 20, 24 and 25 of the interim challan dated 3-6-2011 wherein it has been held as under:--- "20. In pursuance of aforesaid terms and conditions accused Syed Ali Qasim Gillani, during the period September, 2010 to April, 2011 acted as commission agent and arranged a total number of seven consignments of cement from Messrs Best Way Cement Ltd, Islamabad, purchased by Muhammad Khan, against advance payments for export, out of which three consignments were directly transported from the factory premises to the hired Hamza Godown, situated at Plot No, C- 267, Gulbai Sher .'hah near Paracha Qabaristan, Karachi, whereas rest of the four consignments including consignment seized by Malaysian Customs, were transported and stored to the Godown situated at MIIF-261-3, Shershah Karachi. In this regard, Messrs Chun On Services, CHAL No,KAPR- 2650, Karachi, filed seven export Goods Declarations on behalf of Messrs Best Way Cement, Ltd, Islamabad at MCC, (PaCCS) Custom House, Karachi and completed Customs as well as shipping formalities.
24. During the course of further investigation, it transpired the stuffing of the cement bags in five containers containing 214.5 Kgs of Narcotics shipped under Bill of Lading No,ILEKGKG 0416 10/ 04/ 2011 WAS MADE IN THE Godown situated at MIIF-261-3, Shershah Karachi. Therefore, in order to confirm the ownership of said godown inquiries were conducted which revealed that accused Muhammad Khan, during January 2010, purchased the aforesaid go down from Muhammad Yaseen son of Usman and Muhammad Ishaq Khatri son of Saleh Muhammad, against sale consideration of Rs,50 Lac (Rs,5,000,000), which was paid by him to the aforesaid persons, through pay orders of Messrs Standard Chartered Bank, Clifton Branch, Karachi and Messrs Faisal Bank, Beach Blessing, Clifton Branch, Karachi, under the cover of sale-deed dated 1-1-2011, wherein accused Muhammad Khan son of Abdul Akbar has been shown as purchaser of the said property/ go down and accused Ali Shah son of Hazrat Umer of Messrs Star Link, Karachi, acted as witness. In this regard further investigation is in progress.
25. During the course of investigation, it was also gathered that about 700 M. Tons of cement packed in 14,000 bags, forwarded by Messrs Best Way Cement, Ltd., Islamabad, through Commission Agent/Indenter accused Syed Ali Qasim Gillani, purchased by accused Muhammad Khan, meant for export is still warehoused at the aforesaid go down. Therefore, in order to conduct the search of the go down and to confirm as to whether any contraband goods or Heroin Powder has been concealed in the said pending consignment or otherwise, search warrant, was obtained on 4-6-2011, from the honourable Judicial Magistrate (South), Karachi. In pursuance of warrant search of the aforesaid go down was carried out by the staff of the Directorate General, Intelligence and Investigation F.B.R., Regional Office, Karachi, which resulted into the recovery of 14,000 poly bags of cement having trademarks of Best Way Cement. During search proceedings six polythene bags suspected to be used in the concealment of Raw Heroin Powder, were also recovered along with two packing tape and funnel for filling. During such proceedings dog sniffing of the cement bags was also carried out through Drug Cell, MCC (Preventive), Karachi. The aforesaid empty polythene bags, packing tape and funnel for filling have been taken into custody for further investigation and whereas 14000 bags of cement have been detained in the aforesaid go down against proper Mushirnama, duly signed by the witnesses."
7. Learned counsel for the applicant submitted that in view of above quoted paras from the challan it can be safely concluded that go down situated MII-261-3, Shershah, Karachi, does not belong to present applicant but same is owned by one Muhammad Khan. He further submitted that three containers were exported through applicant from Hamza Go down situated at Plot No,C-267, Gulbai, Shershah, Near Paracha Qabaristan, Karachi, and no contraband article was recovered from those three containers.
8. In view of above, learned counsel for the applicant submits that there is no evidence whatsoever available with the prosecution which remotely connects the applicant with the commission of offence. He says that in this case further enquiry is called for in terms of subsection (2) of section 497 Cr.P.C. In support of his above contentions learned counsel has relied upon the cases of (1)
MUHAMMAD ASHIQ V. THE STATE AND ANOTHER (2001 YLR 569); (2) SYED ABDUL QAYYUM V. THE STATE (2000 M LD 842), (3) HADI BUX ALIAS HADOO V. THE STATE (2000 PCr.LJ 714), (4 ) TAJ AKBAR V. THE STATE (2011 PCr.LJ 90), (5) RAFAQAT AHMED AND OTHERS V. THE STATE AND OTHERS (1999 YLR 2627),
(6) GHULAM HUSSAIN AND OTHERS V. THE STATE (2011 PCr.LJ 72), (7) GUL HASSAN DERO V. THE STATE (2000 PCr.LJ 657), (8) THE STATE/ANTI-NARCOTIC V. RAFIQ AHMAD CHANNA (2010 SCM R 580), (9)
MUHAMMAD ASLAM V. THE STATE (2011 SCM R 820), (10) THE STATE THROUGH DEPUTY DIRECTOR ANTI- NARCOTIC FORCE, KARACHI V. SYED ABDUL QAYUM (2011 SCMR 14), (11) MUHAMMAD ULLAH V. THE STATE (2009 SCM R 954), (12) GUL ZAMAN V. THE STATE (1999 SCM R 1271) and (13) MIR IFTIKHAR AHMED V. THE STATE (CRIMINAL BAIL APPLICATION NO.184 OF 2011).
9. As against the above Syed Qamarul Hassan, Standing Counsel for the State, has half-heartedly opposed the bail application. On a question from the Court as to whether prosecution can point any piece of evidence which connects the present applicant with the commission of offence, learned Standing Counsel tried his level best and has taken me to a number of documents available with the prosecution but could not point any material which connects the present application with the commission of offence. Learned Standing Counsel was assisted by the complainant and the I.O. And they were also asked to bring to the notice of the Court any material on which conviction can be based. They also could not point out any material which connects the present applicant with the crime. With regard to delay the complainant has submitted that they have not delayed the matter and on receipt of the information from Malaysia within four days they had lodged the F.I.R.
10. I have heard the learned counsel for the parties and have gone through the record minutely, so also the case-law cited by the learned counsel for applicant.
11. It is settled legal position that at the bail stage deeper appreciation of the record cannot be gone into but only a tentative assessment is to be made just to find out as to whether the present applicant is prima facie connect with the commission of offence or not. Keeping this legal position in mind if record of this case is examined it will be noticed that there is no direct. Allegation against the applicant either in the F.I.R., statements under section 161, Cr.P.C. Or challan. Admittedly, there is no recovery whatsoever from the applicant. It is also an admitted position that three containers were exported through the applicant but no heroin was recovered from those containers. No report of Chemical Examiner is available with the prosecution which may confirm as to whether substance recovered by the Malaysian authorities was heroin. No seizure report has been brought on record. Delay of three months in lodging of F.I.R. Has also not been explained successfully by the prosecution. During. The course of arguments it was brought to the notice of the Court that there are in all nine accused persons booked in this crime and out of them five are absconders, three accused persons, namely, Irshad Junaid Nasir, Aamir Ghori and Raja Sohail have already been admitted to bail but applicant has been denied bail by the learned trial Court. Question as to whether present applicant has connived with other co-accused in exporting heroin along with cement to Malaysia requires evidence.
12. In the case of Gul Zaman (supra), the honourable Supreme Court of Pakistan while reiterating the guidelines for the Courts for disposal of bail matter as given by the apex Court in Tariq Bashir v.
The State (PLD 1995 8C 34) has observed as under:-- "There is no concept of punishment before judgment in the criminal law of the land. The question of grant/refusal of bail is to be determined judiciously having regard to the facts and circumstances of each case. Where the prosecution satisfies the Court, that there tire reasonable grounds to believe that the accused has committed the crime falling in the first category. The Court must refuse bail. On the other hand where the accused satisfied the Court that there are no reasonable grounds to believe that he is guilty of such offence, then the Court must release him on bail. For arriving at the conclusion as to whether or not there are reasonable grounds to believe that the accused is guilty of offence punishable with death, imprisonment for life or with ten years' imprisonment, the Court will not conduct a preliminary trial/ inquiry but will only make tentative assessment i,e, will look at the material collected by the police for and against the accused and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the evidence and circumstances appearing in the case is neither desirable no permissible at bail stage the bail order must be carefully balanced and weighed in scales of justice and requirements of relevant law.
In Amir v. The State (PLD 1972 SC 277) it was observed that for the purposes of bail law is not to be stretched in favour of prosecution and the benefit of doubt, if any, must go to the accused. In Khalid Saigol v. State (PLD 1962 SC 495) it was observed that the Court has to look at the material placed before it by the Investigating Officer and be prima facie satisfied that some tangible evidence can be offered which, if left, unrebutted, may lead to the inference of guilt, and that heinousness of the offence is no ground for rejection of bail. In Nadra v. Jamiat Khan and others (PLD 1968 SC 310) it was observed that ordinarily the framing of a charge upon taking evidence referred to in 'section 208 and examination of the accused would furnish a ground for such a belief as is required to be found under section 497, Cr. P. C. In Muhammad Ayub v. Muhammad Yaqub and The State (PLD 1966 SC 1003), while discussing the nature and scope of power under section 498, Cr. P. C. It was observed that though it barred the grant of bail to a convict person, it empowered the Courts to grant bail to an undertrial accused person. Since no reasons for putting embargo on the powers of the Courts to grant bail under sections 496 and 497 Cr.P.C. Are mentioned in section 51 of Act XXV of 1997, it cannot be said whether they are founded on justice and equity. In the recent years the matter of granting bail to an accused person has been musch widened and as observed by the Supreme Court of India in the case of State of Rajasthan v.
Balachand reported in AIR 1977 SC 2447, that the bask rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating troubles in the shape of repeating offences or intimidating witnesses etc."
13. In a recent judgment by the honourable Supreme Court of Pakistan in the case of Muhammad Asdam (Supra), while dealing with the principle for grant of bail has ruled as under:-- ".....It is well-settled legal principle regarding dispensation of justice in criminal cases that if any reasonable doubt is created in the case of the prosecution then its benefit is to be extended to the accused party. In the instant case, as discussed above, even if whole evidence of the prosecution is considered in its totality, it is established beyond reasonable doubt that the alleged quantity of 9- 1/2 mounds contained in ten sacks was owned by the appellant or it was in his possession.
14. Following the guiding principles as laid down in the above quoted judgments of Hon'b1e Supreme Court of Pakistan, I am of the view that applicant is entitled to concession of bail as this case requires further enquiry as contemplated under subsection (2) of section 497, Cr.P.G.
Accordingly, I admit the present applicant to bail on his furnishing solvent surety in the sum of Rs,10,00,000 (Rupees one million) with P.R. Bond in the like amount to the satisfaction of learned trial court.
15. Needless to observe that any observation made in this order is of tentative nature and shall not affect the pending proceedings before the learned trial Court and final judgment shall be passed by the learned trial Court on the basis of material available before it and in accordance with law.
16. Bail application is disposed of in the above terms.