1. ' This is an application for bail in a case under section 384 of Prohibition (Enforcement of Hadd)
2. Order, 1979, registered at Police Station Airport, Karachi, on 17-8-1984 at 20-15 hours.
3. ' The facts of the prosecution case are that complainant received spy information that heavy quantity of heroin would be despatched by K.L.M. Airlines and would be brought in a car No,178-236 as such, he (Chaudhry Faryad Hussain) alongwith his staff waited at the Airport Star Gate. At about 01-30 hours a car No,178-236 driven by one Muqaddas and applicant Nasim Ahmed was sitting infront seat with him. The car came city and turned towards the airport from the Star Gate. It was followed by the chasing party and was stopped in the back side lane of Midway House leading to Terminal No,2. Muqaddas came out from the car and ran away in a Honda Civic. He was also followed by official jeep but on account of darkness they could not reach them. Applicant, Nasim Ahmad, was arrested. It is stated in the F.I.R. That Muqaddas left his car and ran away, therefore, complainant and others opened the dash-board of the car from where one purse, one telephonic diary, one photograph of Muqaddas and airways bill of P.I.A. Bearing No,98308400 were recovered.
4. The dickey of the car was opened and found three hard-board cartons containing 45 K.G. Of heroin. The case under sections 3 and 4 of the Ordinance read with section 25 was registered.
5. ' During the investigation a bail application was moved in the Court of Sessions Judge, Karachi, who rejected the same by an order, dated 30-9-1984.
6. ' Mr. Raja Qureshi, Advocate appearing for the applicant has contended that car from which the heroin was found does not belong to applicant, Nasim Ahmed, but it is admittedly is of co-accused Muqaddas, who was driving the same at the time of incident. His contention is that applicant is working as Traffic Assistant in K.L.M. And was going at the relevant time to Karachi Airport, to his duty. He has argued that there is no other evidence against the applicant except that he was found in the car belonging to Muqaddas. The learned counsel has referred to a case reported in 1983 P Cr.
7. L J 2476 and PLD 1984 SC (Shariat Bench) 278 and submitted that at the best presently it would be argued by the prosecution that applicant is a carrier.
8. ' This application came up for hearing on 3-9-1984 when Mr. Muhammad Ibrahim Memon, learned Additional Advocate-General pointed out that he has been informed by Muhammad Ayoub Bhatti, S.I.P. That reference has been made in this matter to Martial Law Authorities for submitting the case to a Military Court. As such he asked for a time to produce copy of an order of Martial Law Authorities, therefore, the matter was adjourned to 5-9-1984 at the joint request of the learned defence counsel and A.A.-G. However, this application has been heard on 10-9-1984.
9. ' Mr. Muhammad Ibrahim Memon, Additional Advocate-General has submitted that S.I.P.
10. Muhammad Ayoub has informed him that he has got the instructions to proceed with the matter even though reference is made to refer the case to a Military Court. During the arguments he was assisted by complainant Choudhry Faryad Hussain and Muhammad Ayoub Bhatti, S.I.P. The learned Additional Advocate-General submitted that he has no objection to the grant of bail at this stage as there is no sufficient evidence against the applicant. He has submitted that it may be left open to trial Court to cancel the bail if further evidence is brought on record by the prosecution.
11. ' I have perused the police paper and find that on 2-9-1984, the Assistant Inspector-General Police, Crime Branch, Karachi, has made a reference to D.M.L.A. For applying M.L.O.103 to the present case on the ground that during investigation very influential sources and Government officials appear to have been on the back and supporting the menace. The decision on the reference is awaited and in the meanwhile challan of the case has been filed in the Court of Additional City Magistrate (East), Karachi.
12. ' Mr.Muhammad Ibrahim Memon, learned Additional AdovcateGeneral has further submitted that in this case P.D.S.P., C.P.O. Karachi has given opinion that the case against the applicant is weak.
13. ' I have considered the points raised in the arguments by learned counsel appearing for the applicant as well as of the learned Additional Advocate-General. In the instant case a huge quantity of heroin, weighing more than one maund has been recovered from a car in which applicant was found with co-accused Muqaddas in odd hours of night when Muqaddas ran away and applicant was arrested. The consignment of narcotic was to be dispatched by K.L.M. When applicant is Assistant Manager of that Airlines and Air-way bill was found from the same car.
14. Furthermore, one P.W. Muhammad Rafique, Assistant Manager Traffic, K.L.M. a colleague of applicant in his 164, Cr. P.C. Statement stated that applicant asked him some time ago that quantity of narcotic is to be despatched to Holland and he should help him but Muhammad Rafique refused. This witness was cross-examined by applicant and he has not alleged any enmity with Muhammad Rafique. The car in which applicant was found was going towards airport. Heroin business is a dangerous menace and now sentence for the offence under section 4 of the Prohibition (Hadd) Ordinance, 1979 has been enhanced to imprisonment of life. In my view the prima facie case is made out. The application at this stage is premature as investigation is not complete. However, applicant is at liberty to repeat the application fresh grounds, if so advised, when investigation is completed and the case is sent up to trial Court.
15. ' Application is dismissed.
16. ' Observations made in this order are of tentative nature and should not be taken into consideration by the trial Court. The case to be decided on merits and according to law.
17. Bail declined.