ZAFAR AHMED RAJPUT, J. By this common order, I intend to dispose of above listed both criminal bail applications as the same, being arisen out of Crime/FIR being No. SI/MISC/201/2022-EXP-EW, registered under sections 6, 7, 8 and 9 (c) of the Control of Narcotic Substances Act, 1997 (the "Act") at P.S. Customs, Karachi have been heard by me together.
2. Applicants/accused Fida Muhammad son of Ghulam Dastageer and Humair Qureshi son of Munir Qureshi through listed Cr. Bail Applications, respectively, seek post-arrest bail in aforesaid crime. Earlier their applications for the same relief bearing No. 05/2023 and 46/2022 in Special Case No. 68/2022 were dismissed by the Special Court-II (C.N.S.), Karachi vide orders, dated 21.01.2023 and 05.04.2023.
3. Brief facts of the case, as narrated in the FIR. lodged pn 01.07.2022, are that complainant Shahzad Ahmed, Appraising Officer, Collectorate of Customs Exports, Customs House, Karachi examined a'
Consignment/Container No. PCIU-0083453 (the "impugned Consignment") at Pakistan International Container Terminal ("PICT"), Collectorate of Customs Exports, Karachi, in presence of two musheers and recovered 47 Kg white crystal color methamphetamine (ICE) from 165 pouches of assorted weight. The applicant Fida Muhammad is nominated in the F.I.R. as the actual owner of the impugned Consignment. The case has been investigated by the I.O Mairaj Muhammad, who submitted Interim Challan, Interim Challan- II, Final Challan and Supplementary Challan on 19.07.2022, 01.10.2022, 01 .11. 2022 and 07.02.2023, respectively.
4. Learned counsel for the applicant Fida Muhammad has contended that the applicant is innocent and he has no nexus with the alleged offence and he has been falsely implicated in this crime with ulterior motives by the customs officials; that all the witnesses are official witnesses and sub-ordinate to the complainant, who have acted at the behest of the complainant to endorse his false and fictitious version; that a bare perusal of the primary data/record collected by prosecution reflects that the impugned Consignment of salt was exported by co-accused Humair Qureshi, who is the owner of the export company i.e. M/s. Qtinity and he filed Goods Declaration No. KPEX-SB- 182651, dated 29.06.2022 (the "GD") electronically through their authorized clearing agent M/s. AI Kasib as well as the financial instrument also pertains to M/s. Qtinity, which fact alone rules out the involvement of the applicant in the alleged offence; that the applicant has been implicated in the alleged offence on the basis of fake WhatsApp texts, the authenticity thereof would be determined at the time of trial; hence, the guilt of the applicant requires further inquiry. In support of his contentions, learned counsel has relied upon the cases of (i). Sh. Muhammad Tasleem v. The State (2006 SCMR 468) (ii). Haji Inayat and another v. The State (2010 PCr.LJ 825) (iii).
Muhammad Faisal v. The State (2006 YLR 3039) (iv). Ejaz Ali v. The State (2009 MLD 773) (v). Nasir Aziz and another v. The State 2020 YLR 1429; (vi) Mst. Hameeda Begum alias Hameedee and others v. The State (2009 YLR 73) (vii). Zahid Sultan v. The State and another (2019 YLR 2798) (viii)
Ismaeel v. The State (2010 SCMR 27) (ix). Naveed Asghar and 2 others v. The State (PLD 2021 SC 600) (x). Inzar v. The State (2013 PCr.LJ 843) (xi). Gul Zaman v. The State (1999 SCMR 1271) and an unreported order, dated 31.03.2023, passed by a Single Bench of this Court in Cr. Bail Applications Nos. 565 and 566 of 2023.
5. Learned counsel for the applicant Humair Qureshi has maintained that the applicant is an exporter; he is the owner of M/s. Qtinity and is a victim of circumstances; that the applicant has not been named as an accused in the F.I.R.; that the applicant since day one has joined investigation and all along has cooperated with the customs authority; that the applicant has not been nominated as an accused in Interim Challan, dated 19.07.2022, by the Investigating Officer; that in Interim Challan-II and Final Challan, dated 01.10.2022 and 01.11.2022, the applicant has been nominated by the I.O. as an accused, without collecting any incriminating evidence against him, merely for the reason that he is the owner of the said export company; that in Supplementary Challan, dated 07.02.2023, it is clearly mentioned that the co-accused Fida Muhammad was the owner of the impugned Consignment, who with the active connivance and assistance of Haji Sattar alias Haji Aga, Devrim Dereli alias Sher Khan alias Selvi, Muhammad Siddique and Saifuddin committed the alleged offence and no specific role has been assigned to applicant Humair Qureshi for commission of the alleged offence; that co-accused Fida Muhammad overall exported three consignments through the applicant's said company; that it proves beyond doubt that the applicant was not a beneficiary of the goods exported through his said company and he in fact allowed export on his company's account to oblige co-accused Fida Muhammad; that it is clearly established that the applicant was an exporter of the impugned Consignment only on paper and the documents of his company were misused by co-accused Fida Muhammad; that co-accused Taha Hussain Khan vide Order, dated 12.10.2022, has been granted post-arrest bail in the instant case by the Special Court-II (C.N.S.) Karachi and the applicant's role is similar to Taha Hussain Khan; hence, the applicant is also entitled to the concession of bail on rule of consistency; that the learned Court below in paragraph-8 of the impugned order has observed that the applicant was negligent by not obtaining an undertaking from the actual owner of the consignment, Fida Muhammad; that it is established principle of criminal jurisprudence that negligence cannot amount to criminal liability, therefore the applicant's case falls within the ambit of further inquiry.
6. Conversely, learned counsel for the Customs Department and Assistant Attorney Generals have opposed the applications on the grounds that the applicant Fida Muhammad was the owner of impugned consignment; that the applicants got issued Form-E and filed fake documents and submitted false description of the export goods; that applicant Humair Qureshi failed to exercise due diligence and thereby he allowed unauthorized use of his firm (M/s. Qtinity) by applicant Fida Muhammad to export his consignment; that the applicants are involved in smuggling of ICE in huge quantity. In support of their contentions, they have relied upon the cases of (i). Noor Khan v.
The State (2021 SCMR 1212) (ii). Bilal Khan v. The State (2021 SCMR 460) (iii). Fareed Ahmed and another v. The State (2023 PCr.LJ 583) (iv). Lutufallah v. The State (2020 PCr.LJ 184) (v). Syed Muhammad Ayaz v. The State (2020 YLR Note 160) and (vi). Muhammad Suleman v. The State (2022 MLD 735).
7. Heard, Record perused.
8. It may be observed that the ICE (also named as Ice drug, crystal methamphetamine and crystal meth) is a new anathema and social abuse in our society. As per publication of National Drug Intelligence Centre, Washington, available at www.usdoj.gov/ndic, it is a colorless, odorless form of methamphetamine, a powerful and man-made highly addictive synthetic stimulant. Like powdered methamphetamine (another form of methamphetamine). It is abused because of the long-lasting euphoric effects it produces. It, however, typically has a higher purity level and may produce even longer-lasting and more intense physiological effects than the powdered form of the drug. The most common names for ICE are crystal and glass. It is smoked using glass pipes similar to pipes used to smoke crack cocaine. It is also swallowed and may be injected with a needle and taken by snorting it (inhaling though the node) and is increasingly gaining popularity as a "party" and "club" drug. Under the Schedule-I to the Act, methamphetamine is specified at serial No. 47 as 'psychotropic substance'. Section 9 (2) of the Act (as amended by the Act No. XX of 2022, promulgated on 02.09.2022) provides punishments with death or life imprisonment for possessing, importing or exporting and trafficking of 'methamphetamine (ICE)' in contravention of sections 6, 7 and 8 of the Act for more than four kilograms in quantity.
9. It appears from the perusal of the record that M/s. Qtinity, having its office in Karachi, electronically filed the GD destined to Melbourne, Australia consisting of two containers (PCIU0083453 and PCIU1121882) through their authorized Clearing Agent M/s. Al Kasib by declaring the description of the goods as Salt, with declared value of US$ 37796.9410 against Financial Instrument of Bank Alfalah Limited, Pakistan. The WeBOC system allowed loading under yellow channel on the basis of profile of the exporter. However, keeping in view the risky nature of the goods and destination, the same were put for examination by AC Examination of PICT. The complainant destuffed the impugned Consignment in the presence of two musheers, which led to the recovery of 1250 corrugated cartons; the same were opened one by one which yielded the recovery of assorted brand/packing of "Himalayan Pink Salt". The recovered pouches were further opened and checked one by one. During this exercise some pouches were found stuffed with narcotic substance. Upon this development, minute examination of all the pouches was carried out wherein 85 cartons containing 165 pouches of assorted weight were found stuffed with narcotic substance, which was tested with the help of Narcotics Test Kit, which gave positive inference of the presence of 47 kg ICE. Three representative samples of the recovered ICE were drawn from said pouches, which were sealed in PVC zip lock bags and numbered from 01 to 165 in order to keep their sanctity intact. The recovered ICE along with the container was seized under mashimama prepared on the spot. Subsequently, the clearing agent and exporter were called and enquired about the recovery of the ICE from the impugned Consignment, to which they disclosed that the same was handed over to them by Fida Muhammad, who was arrested and from his personal search two mobile phones were recovered. The other container (No. PCIU1121882) was also destuffed which was found containing packaging of Himalayan Pink Salt.
10. It further appears that, on 29.06.2022, applicant Fida Muhammad made impugned shipment through M/s. Qtinity by hiring clearing services of M/s. Al Kasib. As per the material available with the prosecution, Fida Muhammad purchased the salt and packing material from M/s. Rao Salt Factory, Bin Qasim Town, Karachi and made payment through his bank accounts. He bought extra pouches from M/s. Rao Salt Factory which were later used for packing of narcotics. The salt in packing of 50 kg bags was delivered by M/s. Rao Salt Factory to Fida Muhammad at his given address of Plot No.B-497, Ahsanabad, Gulshan-e-Maymar, Karachi where the packing of salt and narcotics was made. The said plot was acquired by Fida Muhammad on rental basis. After packing of the salt and narcotics for export, co-accused Siddique alias Lali, one of the close associates of Fida Muhammad, shifted the goods to Mama Godown, Maripur on 27.04.2022 for warehousing. Fida Muhammad himself booked the containers No.PCIU-0083453 and PCIU-1 121882 through freight forwarder M/s. Swift Shipping Agency (Pvt.) Limited and uploaded the containers' details on WhatsApp group (Qtinity/Swift/Rotterdam) for intimation and coordination of group members. The goods were loaded under his supervision in the containers at Mama Godown on 29.06.2022. He got Container Release Order (CRO) of both containers and uploaded the same on said WhatsApp group for intimation and further coordination. After collection of CRO, he visited office of M/s. Al Kasib and personally handed it over to one of the employees of M/s. Al-Kasib. Weighment of both the said containers were made by Fida Muhammad from Muslim Kanta, Mauripur and the weighment slip was uploaded by him on the said WhatsApp group for preparation of the GD.
Mairajuddin, an employee of M/s. Al Kasib, filed the GD on 29.06.2022 and he got repeated instructions from Fida Muhammad regarding quantity and value of goods for declaration. During the preparation of the GD, there was confusion about the quantity; Mairajuddin asked Fida Muhammad about correct value and quantity which he accordingly advised. The evidences collected during investigation and analysis of the forensic report, WhatsApp conversation, voice notes, videos, images, text messages, CDR, bank accounts, WeBOC profile, data of NADRA, information/ data of Excise and Taxation Department Sindh, statements of the owners of M/s. Rao Salt Factory and said Plot, prima facie reveal the mens rea of applicant Fida Muhammad in planning and execution of massive smuggling attempt with the connivance of his accomplices.
11. It also appears that applicant Fida Muhammad during his business activities from 04.02.2022 to 29.06.2022 shipped six consignments to four different destinations by using services of three different export companies. Out of them, he used financial instrument of the M/s. Qtinity in following three shipments:-
(i) Consignment of cotton rolls grey fabric, exported vide GD No. KPEX-SB-147422, dated 15.04.2022 destined for Rotterdam.
(ii) Consignment of cotton rolls grey fabric (plain weave), exported vide GD No. KPPE-SB-298611, dated 14.06.2022 destined for Rotterdam (subject matter of the F.I.R. No. SI/M1SC/22/2022-EIB/EXP- PMQB)
(iii) Consignment of Himalayan Pink Salt vide GD No. KPEX-SB-182651, dated 29.06.2022 to Melbourne, Australia. (subject matter of the present F.I.R.)
During the course of investigation, it transpired that the applicant Fida Muhammad had earlier exported a consignment of grey fabric under GD No. KPPE-SB-298611 in container No.MSCU6590981 (referred to in sub-para (ii) above) from the Collectorate of Customs Exports, Port Muhammad Bin Qasim ("PMBQ"), Karachi to Rotterdam, Netherlands, which was en route but brought back to Pakistan without offloading at the destination by approaching to shipping agency, namely, M/s. Sharaf Shipping Agency vide Customs Collectorate's letter, dated 07.07.2022. The said consignment arrived back on 16.08.2022 at IC3 Yard, PMBQ, Karachi, where a joint team comprising of examination staff of Collectorate of Customs Exports, Karachi and Collectorate of Customs Exports (PMBQ), Karachi destuffed the goods of the container, which led to recovery of wrapped cones beneath the fabric containing concealed 380 Kg of heroin and for that a separate F.I.R. being No. SI/MISC/22/2022-EIB/EXP-PMQB), dated 22.08.2022, was registered at Collectorate of Customs Exports PMBQ, Karachi.
12. As regard applicant Humair Qureshi, it appears that he is the proprietor of M/s. Qtinity that shipped three consignments owned by Fida Muhammad including the two from which narcotics were recovered. As per prosecution, he arranged financial instrument for the shipment of the impugned Consignment to Fida Muhammad. From the Interim Challan, it is established that he was not found beneficiary of the sale proceeds of the contrabands. In Interim Challan-II, Final Challan and Supplementary Challan, he has been nominated as an accused for the alleged offence under the Act without assigning any role. As per learned counsel for the Customs Department, he failed to exercise due diligence and thereby he allowed unauthorized use of his firm (M/s. Qtinity) by Fida Muhammad to export his consignment. Such act of the applicant Humair Qureshi is in violation of section 155E of the Customs Act, 1969 for which User ID of M/s. Qtinity has been blocked. However, as per material available with prosecution, the said applicant has not been found involved in purchasing of salt and packing material for using in smuggling of ICE or in hiring of the plot where the goods were placed and packed or in funding of the shipment; transportation of the goods from the warehouse to the port. It is also an admitted position from the record that no incriminating evidence is available with prosecution against the said applicant to connect him with the commission an offence under the Act. Merely using export I.D, license, etc., of the said applicant's company does not constitute per se any offence under the Act. Hence, in such a situation keeping the said applicant behind the bar for an indefinite period will serve no purpose.
13. From the tentative assessm ent of the evidence on record, it appears that the prosecution has sufficient material against the applicant Fida Muhammad to connect him with the commission of alleged offence carrying punishment for death or imprisonment for life. No case for granting bail to him on the ground of further inquiry has been made out. Every hypothetical question which could be imagined would not make it a case of further enquiry simply for the reason that it could be answered by the trial Court subsequently after evaluation of evidence. His claim with regard to false implication is an issue that cannot be attended without going beyond the scope of tentative assessm ent, an attempt prohibited by law. The case-law cited by the learned counsel for applicant Fida Muhammad being on distinguishable facts do not advance the case of the said applicant for the grant of post-arrest bail. It may be observed that trafficking/smuggling of ICE in huge quantity can have devastating effects on the society generally and it is a threat to honour of the country in international community particularly; hence, Cr. Bail Application No. 296 of 2023 filed on his behalf is dismissed, accordingly.
14. So far, the bail plea of applicant. Humair Qureshi is concerned, I have found the case against him as one of further inquiry as envisaged under subsection (2) of Section 497, Cr.P.C.; consequently, Cr. Bail Application No. 842 of 2023 filed on his behalf is allowed by admitting him to post-arrest bail subject to his furnishing solvent surety in the sum of Rs.10,00,000/- (Rupees Ten Lac Only) and P.R.Bond for like amount to the satisfaction of the trial Court.
15. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicants on merits. In case applicant Humair Qureshi misuses the concession of bail in any manner, it would be open for the trial Court to cancel his bail after issuing him the requisite notice.
16. Above are the reasons of my short order dated 16.06.2023.