1. ' FAROCQ ALI CHANNA , J.---The applicant Umeed has sought bail in Crime No, 559 of 2012, Police Station Darakhshan, Karachi under sections 6/9-C/ 11/12/15/16/34 of Anti-Narcotics Control Act lodged by complainant ASI Muhammad Naeem that on 24-11-2012 when he was in Bukhari Commercial Area in connection with some investigation he heard slight explosion and smell coming out of flat situated at 4th Floor, Bukhari Commercial Area Lane No, 7, Building No, 23-C, he informed the higher authorities and reached at spot where one Humayoon Usman told him that three persons who were residing at 4th floor have escaped in Car No,727 Toyota Corolla, Black Colour while one of their companions is available in the flat. The complainant also informed the Bomb Disposal Squad, they came and searched the flat checked some chemical cans and declared that the same are not explosion substances. Meanwhile a person came out from bathroom having one bag hanging on his shoulder containing 1100 grams heroin, he disclosed his name to be Muhammad Altaf and the names of his companions to be Ali Asghar, Mansoor and Hameed Irani. Thereafter the complainant came at Police Station and lodged the F.I.R.
2. ' During investigation, A.S.-I. Muhammad Naeem Awan arrested accused Muhammad Altaf, who made statement that Haji and Umeed (the present applicants) are supplying them chemical used for preparing heroin. On his statement the present applicant was arrested and challari was submitted against him. The bail application moved by the applicant before the trial Court was heard and dismissed.
3. ' Learned counsel for the applicant has contended that the case is false and fabricated, there is no iota of evidence against the applicant to connect him in this crime. Admittedly neither he was arrested from the place of incident nor narcotic substance was recovered from his possession or on his pointation. Learned counsel has further contended that as per prosecution the only oral allegation against him was that applicant was supplying the chemical for preparing heroin, as such the case requires further enquiry, the applicant is legally entitled to be released on bail. To support his contentions, learned counsel for the applicant relied upon the cases reported as THE STATE V. SYED ABDUL QAYUM (2001 SCM R 14), AKHTAR HUSIAN V. THE STATE (2010 YLR 2447), ANWAR V.
4. THE STATE (2005 M LD 950), ADIL JAN V. THE STATE (1999 PCr.LJ 808), ALLAH DITTA V. THE STATE (PCr.LJ 568), GUL ZAMAN V. THE STATE (1999 SCM R 1271) AND MUHAMMAD USMAN V. THE STATE (1998 PCr.LJ 370).
5. 'Conversely, learned Assistant Prosecutor-General, Sindh has opposed the grant of bail and contended that the applicant was arrested as one of the associate member of gang involved in preparing and smuggling the narcotics, which is an offence against society hence the persons involved must be dealt with iron hands so as to curb such type of offence, however he has candidly admitted that sole evidence against the applicant is confessional statement of co-accused Muhammad Altaf, before police.
6. Per prosecution, neither the applicant was arrested at spot nor any contraband or substance used for preparing the heroin was recovered from the physical possession or on the pointation of applicant. Sole evidence against the applicant was that he was implicated in this case on the basis of confessional statement made by co-accused Muhammad Altaf before the Investigating Officer which statement is not admissible under Articles 38 and 39 of Qanun-e-Shahadat Order hence prima facie a case of further enquiry about the guilt of accused is made out. In a case of identical circumstances reported as NAZIR AHMED V. THE STATE (2004 PCr.LJ 27) it has been held that:-- "6. Admittedly, the Dera wherein he was allegedly present at the time of raid, did not belong to him and rather to some other person namely Saif Ullah. The question that if the confessional statement made by co-accused Raees Ahmed before the police can be used against him or that of his involvement in the matter needs serious consideration. While prima facie, no offence appears to have been made out against him in the above circumstances of the case. So to us, there appear no reasonable grounds to believe that he has committed non-bailable offence and rather there are grounds for further inquiry into his guilt.
7. In our view, when this may be the position, then the embargo contained in section 51 of the Act will not be attracted."
7. ' In another case reported as EJAZ ALI V. THE STATE (2009 M LD 773) this court while granting bail has observed as follows:-- "The allegation against the applicant is that he was Deputy Assistant Director in the Airport Security Force and was on duty at the airport on that day and would have helped the passengers in the clearance of their goods. However, in support of the allegation the Investigating Agency could not collect any evidence, except confessional statements of co-accused Muhammad Akram and Gul Mir, who allegedly stated before the Investigating Officer that the applicant was requested by them to help accused Syed Muhammad Sarwar, Muhammad Rasheed Tahir, Allandita Saqib and Mst.
8. Samina in the clearance of their goods. The learned Special Prosecutor has frankly conceded that, except for the confessional statements of the co-accused before the Investigating Officer, there was no, evidence against the applicant.
9. ' According to the Article 38 of Qanun-e-Shahadat, 1984, confessional statement of an accused before an Investigating Officer is inadmissible in evidence. It cannot be used even against its maker not to talk of any other person."
10. In the above referred cases the name of applicant was disclosed by co-accused on the very same day of their arrest, whereas in the instant case co-accused Muhammad Altaf made confessional statement before the Investigating Officer disclosing the name of present applicant after four days of his arrest as such the case of the present applicant is on better footings than the cases referred herein above. In the circumstances and following the dicta laid down by the Apex Court, the accused/ applicant' is admitted to bail subject to his furnishing surety in the sum of Rs,1,00,000 (Rupees one lac only) and P.R. Bond in the like amount to the satisfaction of the trial Court.