ABDUL RASOOL MEMON, J.---Applicant seeks bail in a case Crime No.100 of 2012 of P.S. ANF-II Karachi under sections 6, 9(c) of the C.N.S. Act, 1997, facts of which as set out in FIR are that on 31- 12-2012 Inspector Syed Sher Ali Shah Sheerazi, on receiving spy information about smuggling of heroin to Damam Saudi Arabia through flight No.GF-0751, reached at International Departure Lounge, HAP, Karachi along with spy informer and at 0500 hours on his pointation arrested accused Mudassir Iqbal (applicant) with brown colour trolley bag, Passport No.LX1334901 and air ticket No.0722283471538 for Karachi to Damarn. On opening of bag two black colour plastic shoppers containing 2160 grams heroin powder were recovered. After completion of investigation challan of the case was submitted in the court of law. The bail application made on behalf of applicant was rejected earlier by Judge Special Court-I (CNS) Karachi vide order dated 5-5-2014.
2. Learned counsel for the applicant in support of this application contended that complainant himself conducted the investigation in violation of Cr.P.C. And police rules; that no private person is cited as witnesses in the case though complainant despite having prior information about the alleged incident; that the bag containing heroin was not owned by the applicant but was property of absconder accused Shakeel Hyder; that alleged recovery is of 2160 grams heroin and in view of dictum laid down regarding quantum of sentence in the Murtaza case (PLD 2069 Lahore 362). The case does not fall within the prohibitory clause of section 497, Cr.P.C. And that applicant is in Jail for last more than one year but not a single witness has been examined, thus is entitled to be released on bail on the ground of statutory delay and that applicant has no record of such like cases in his account. He has relied upon the cases Ali Muhammad alias All Kochi v. The State (1994 PCr.LJ 1487), Zahid Hussain Shah v. The State (PLD 1995 SC 49), Ghulam Murtaza v. The State (PLD 2009 Lahore 362), Nazeer Ahmed v. The State (PLD 2009 Karachi 191), Abdur Rasool v. The State (2009 PCr.LJ 558), Muhammad Siddique v. The State (2011 YLR 2261) and Ghazanfarullah Khan Pathan v. The State (2012 PCr.LJ 1613).
3. Learned Special Prosecutor ANF Mr. Shafiq Ahmed has opposed the grant of bail on the ground that the police officer has not been prohibited to become complainant and investigation officer; that evidence of the police officials is as good as others and provisions of section 103 have been excluded by virtue of provisions of section 25 of C.N.S. Act. He further contends that the case of Ghulam Murtaza (supra) was an appeal/case, hence has no relevancy with the facts and circumstances of this case at bail stage. He further submits that delay in conclusion of trial has been partly attributed to the appellant which disentitle him to bail. In support of his contention, learned A.P.G. Has placed reliance on the cases of Zafar v. The State (2008 SCMR 1257), Rasool Bux v. The State (2005 SCMR 731), The State v. Javed Khan (2010 SCMR 1989), Nadim Ashraf v. The State and others (1989 SCMR 1538) and Sher All Sheri v. The State (1998 SCMR 190).
4. I have considered the submissions made at bar and have gone through the case file as well as citations referred in the case. As to first contention of learned counsel for the applicant that no independent I.O. Conducted the investigation but complainant being interested in the case himself investigated the case which creates doubt. I do not agree with this submissions as in case of Zafar v. The State (2008 SCMR 1257) it has been observed that a police officer is not prohibited under the law to be complainant if he is a .Witness to the commission of an offence and also to be an Investigating Officer, so long as it does not in any way prejudice the accused person. In the case in hand no animosity is alleged against complainant to foist the alleged narcotic material upon applicant.
5. As to the arguments of non-association of a private person as witness in the case, application of section 103, Cr.P.C. In the narcotic cases has been excluded by virtue of provision of section 25 of C.N.S. Act, as such non-inclusion of any private witness is not a serious defect to make the ground of bail. Reliance in this context may be placed on cases of Rasool Buz v. The State 2005 SCMR 731 and 2008 SCMR- 1254.
6. Next contention of learned counsel for the applicant is that the applicant had no concern with the bag from which the alleged heroin was recovered. As per prosecution case the alleged briefcase was recovered from the hand of present applicant, even otherwise mens rea of the accused is to be gathered from deep appreciation of evidence which is not permission at bail stage, as such the above contention of learned counsel for the applicant is without force.
7. So far as the contention of applicants counsel regarding falling of offence outside prohibitory clause is concerned, it may be mentioned here that in case the State v. Javed Khan (2010 SCMR 1989) bail had been granted to accused allegedly found to have been in possession of 5-1/2 Kgs. In view of case quantum of sentence prescribed in the case of Ghulam Murtaza (supra) but in appeal Hon'ble apex Court cancelled the bail of accused, the relevant portion of the Judgment is reproduced herein under:- "Having gone through the above provisions of law, we do not feel persuaded to agree that the case of the petitioner will not fall within prohibitory clause of section 497, Cr.P.C., but it shall be covered by section 9(c), providing for various sentences as reproduced above, which not only squarely fall within prohibitory clause of section 497, Cr. P. C. But also attract the bar contained in section 51(1) of the Act of 1997, specifically made applicable to those offences which, inter alia, provide for punishment of death sentence. For ease of reference, the said provision of law is reproduced as under:- "51(1). Notwithstanding anything contained in section 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death".
When the law makers have provided some special provision in the statute to bar the jurisdiction of special Court established under the said enactment, due weight is to be given to such special provision of law as against general principles governing such cases, when accused approaches the Special Court or the High Court for grant of bail, as in the instant case.
Looking to the admitted facts of the case of respondent and the above discussed clear legal position, the approach of High Court in releasing the respondent on bail on the above referred ground, seems to be arbitrary, without application of mind and, contrary to settled principles of law, thus unsustainable.
8. It may also be pertinent to mention here that in the case of Ameer Zeb v. The State reported in PLD 2012 SC 380 the Hon'ble Apex Court has approved the criteria laid down in Ghulam Murtaza's case, but in the case of Nadeem Ashraf v. The State and others 2013 SCMR 1538, the Hon'ble Supreme Court of Pakistan has held that Ameer Zeb's case was a criminal appeal wherein the entire evidence had been led and by distinguishing the same, declined the bail to accused from whose possession 945+420 (1365 gram) heroin was recovered, thus in the light of dictum laid down by the Hon'ble Supreme Court in above referred cases, it cannot be said that the case of applicant does not fall within the prohibitory clause of section 497, Cr.P.C.
9. With regard to the delay in trial of the case, it has brought on record that on five occasions case was adjourned either on the request of accused side or due to absence of defence counsel, as such the delay is also partly attributable to the accused, which disentitle him to bail even on the ground of alleged delay in trial, if any law is needed on this point, reference may be made to case of Sher Ali Sheri v. The State (1998 SCM R 190). With profound respect the citations relied upon by the learned counsel for the applicant in view of the principles laid down by the Hon'ble apex Court in the case laws referred herein above, are not helpful to him at this stage.
10. For the reasons discussed above, this bail application being devoid of merits is dismissed accordingly. However, the observations made hereinabove are tentative in nature and trial Court may not be influenced therefrom at trial and to proceed with the matter expeditiously and conclude the trial preferably within three months.