MUHAMMAD IQBAL KALHORO, J.---Applicants are accused in crime 21 of 2012, registered on 14.11.2012 at 0700 hours at Police Station ANF Clifton, under sections 6/9-C, 14, 15, C.N.C. Act, 1997.
2. Applicants and co-accused namely Atahar Hussain (since dead) were arrested by Anti- Narcotics Force on spy information from a road in front of Murshid Hospital, Mawach Goth, Karachi on 13.11.2012 at about 1545 hours, while they were traveling in an Alto Car bearing Registration No.AHG-285. From search of said car allegedly 100 Kgs of Charas was recovered, which was sealed at the spot and such memo was prepared. The applicants disclosed further that they had brought the recovered charas from a godown situated on a Plot No.UCGP-44/5, Main Suparaco Road, Mawach Goth, Karachi where huge quantity of Charas was available. On such information, ANF along with the accused went to the said godown and recovered 3213 Kgs of Charas which was available in different packets, the same was sealed at the spot, and such memo of recovery was also prepared there. The applicants thereafter were brought at Police Station, where instant FIR was registered against them. After investigation the challan was submitted and presently the applicants are facing trial before the learned Special Court-I Control of Narcotics Substance, (`CNS'), Karachi.
3. Mr. Umar Awan learned counsel for applicants has mainly argued that applicants are innocent and have been falsely implicated in this case; that applicants are in jail since the date of their arrest, yet the trial has not been concluded; that the delay is not on the part of the applicants but it is on account of failure of the prosecution to produce the witnesses for evidence; that although the learned trial court has adopted .coercive measures to procure attendance of the witnesses but to no avail; that previously applicant Samiuddin filed bail application No. 1142/203 before this court which was disposed of with directions to the trial court to conclude the trial within two months vide order 23.04.2014 but the trial court has failed to comply with those directions; that expeditious trial is the right of the applicants, which has been denied to them, as such they are entitled to grant of bail on the ground of statutory delay. Learned counsel in support of his arguments has relied upon the diaries of the trial from 24.01.2017 till date, which he has submitted today. He has also argued that co-accused namely Athar Hussain had filed an application under section 265-F read with section 342, Cr.P.C. admitting the guilt and claiming that the present applicants were innocent, but he has admitted this application was dismissed by the trial Court vide order dated 06.10.2016 and the applicants have not challenged said order. Learned Counsel has also referred to some letters, which according to him, he has placed before the trial Court requesting to proceed with the matter expeditiously but due to failure of the prosecution to bring the witnesses, the case has been lingering on for the last four years. Learned Counsel in support of his arguments has relied upon case of Imtiaz Ahmed v. The State (2017 SCM R 1194).
4. On the other hand, Mr. Habib Ahmed learned Special Prosecutor ANF has opposed grant of bail to the applicants. He has contended that the delay in the trial is not on the part of the prosecution: that the prosecution has already examined two witnesses i.e. complainant and Mashir of recovery but the defense counsel did not cross-examine them; that it is essentially due to tactics employed by the applicants who have been changing the defense counsel to cause delay, the trial has not been completed. With regard to non-compliance of directions by this court in bail applications filed by applicant Samiuddin previously, he submits that such directions do not create any fresh ground in favour of the applicants, particular so, when delay is not on the part of the prosecution.
He in this respect has relied upon the case of Nisar Ahmed v. The State and others (PLD 2016 SC 11).
5. I have considered the submissions of the parties and perused the material available on record including the case law cited at bar. The record shows that at the time of arrest of the applicants on 13.11.2012 100 Kgs of charas was recovered from the Car they were travelling in. And subsequently on their pointation a total of 3213 Kgs charas was recovered from a warehouse. Such huge quantity of narcotics palpably could not have been foisted upon the accused. Learned defence counsel during arguments has also pointed out that although the incident is shown to have happened at 1545 hours on 13.11.2012 but the FIR was registered on 14.11.2012 at 0700 hours, and according to him, such delay is not explained. With due respect to learned defense counsel's contention, it is not the case, such delay has been properly explained in the FIR that shows that in recovering the charas kept in diffracts packets and in sorting it out and finally in sealing it, the relevant time was consumed.
6. As regards the delay in the trial, a perusal of the impugned order indicates that learned trial Court has observed that evidence of PW-1 Inspector Maqsood Mahar, who is the complainant, was recorded on 26.02.2014 but his cross-examination was reserved for want of time and thereafter he was recalled on 12.03.2015 but the learned defence counsel did not cross-examine him on the pretext that the previous counsel would proceed with the case. The impugned order also shows that examination in chief of P.W.2, the mashir, has also been recorded. The trial court has also observed that the delay in trial has occurred due to change of the advocates by the accused and their absence on the dates of hearing when the witnesses were present. These observations are sufficient to show that the delay in .conclusion of the trial cannot be entirely attributed to the prosecution, on various occasions the prosecution witnesses were present but were not examined by the defense counsel or they chose to remain absent. Therefore, in my view the facts and circumstances of the present case are quite distinguishable to the case of Imtiaz Ahmed (supra) relied upon by the learned defence counsel, wherein the witnesses are shown to have not turned up despite issuance of non-bailable warrants, and the investigation officer was declared absconder in another case therefore his appearance in the trial was held to be not possible in the near future.
7. As to the ground of the directions of this Court in earlier bail applications filed by applicant Saimullah to the trial court to conclude the trial within a specific period, the honourable Supreme Court in the case of Nisar Ahmed (supra) has held that non-compliance of said directions could not be considered a valid ground to grant bail to the accused. For foregoing discussion, I am of the view that applicants have not been able to make out a case for grant of bail on the ground of delay in conclusion of the trial, therefore, this application is dismissed. However, learned Special Prosecutor ANF has suggested for directions to the trial court to conclude the matter within three
(03) months and has undertaken that within that period, he would ensure that all the prosecution witnesses appear in the trial court for their evidence. Accordingly the trial court is directed to expedite the trial and preferably conclude it within a period of three (03) months hereof.
8. The bail application is disposed of in the above terms; the findings made hereinabove are tentative in nature and would not prejudice case of either party at trial.