1. ' The applicant Muhammad Hashim Zamani who is an Afghan national was booked on flight No,BA- 146 operated by the British Airways for going to Toronto, Canada from Karachi. On the night between 19th and 20th August, 1988 he arrived at terminal No,3 of the Karachi Airport to board the said plane. Before he could be briefed for departure by the said air company the Custom Officer on duty intercepted him and on search secured heroin powder of brown colour weighing 1-1/2 Kgs.
2. From his suitcase.
3. ' The First Information Report was lodged by the said Preventive Officer and after usual investigations the applicant has been sent up to stand trial under section 156(1)(8) of the Customs Act, 1969.
4. ' The application for bail was filed before the Special Judge (Customs and Taxation) at Karachi and was supported by affidavits of two Mashirs in the case disowning to be the witnesses of the seizure.
5. Affidavits have been sworn on first April, 1989. The bail application did not find favour with the Special Judge (Customs and Taxation), Karachi and was rejected.
6. ' The present application seeking bail in the case mentioned above has been filed on the same grounds as were urged before the trial Judge. The application is supported by fresh affidavits sworn by Zahid Ali and Babu Bilal who are employed as Ground Sanitary Assistants by the Civil Aviation Authority and are Mashirs of the seizure of the contraband intoxicant. Both of them have admitted to have signed the Mashirnama but disclaimed to have witnessed the seizure.
7. ' Mr. Sohail Muzaffar, the Advocate for the applicant contends that in view of the affidavits sworn by two important prosecution witnesses, the Mashirs of seizure in the case it will not be possible for the prosecution to prove the recovery of heroin from the applicant and the applicant on that ground is entitled to the grant of bail. Reliance has been placed by him on cases reported in 1979 SCMR 30, another case reported in the same journal on page 137 and an unreported judgment passed by another Bench of this Court in Special Criminal Bail Application No,9 of 1989, Nadir Ali v. The State following the principles laid down in the two reported cases. According to him in any event the case of the applicant falls under subsection (2) of section 497 Criminal Procedure Code as a case where sufficient grounds exist for further enquiry into his guilt.
8. ' Mr. Jalaluddin Baloch, appearing for the State opposes this application as the applicant by procuring the affidavits of two witnesses of the prosecution merely proves that the applicant has in fact tampered with the evidence. Under such circumstances the applicant is not entitled to the concession of bail as tampering of evidence has always been considered to be a ground for refusal of bail.
9. ' In the case of Rehmat Ali and another v. The State reported in 1979 SC MR 30, complainant when examined under section 164, Criminal Procedure Code had actually resiled from his version stated in the First Information Report and absolved the accused of the charge. In addition to mother and sister of the deceased, the two eye-witnesses swore affidavits confirming innocence of the accused, identification of the accused on the fateful night was doubtful and a writ petition was also filed questioning impartiality of the investigation of the crime by the police. All the factors were taken together and bail was granted to the petitioners by the Honourable Supreme Court of Pakistan.
10. ' In the second case reported in Allah Bakhsh v. Nazar Hussain and others 1979 SCMR 137 Nazar Hussain Shah one of the accused in the case under section 302, Pakistan Penal Code was granted bail as affidavits of two eyewitnesses were brought on record exculpating him of the offence and medical report did not support case against him. An application for cancellation of his bail was filed in the High Court by the complainant which was rejected. Criminal Petition for Special Leave to Appeal was then taken to the Supreme Court of Pakistan which was dismissed.
11. The facts in the above-mentioned two cases are distinguishable from the facts of the present case. Both the Mashirs in this case in their respective affidavits have admitted to have signed the memo. Of seizure and have partially made obliging statements. The memo. Of seizure is like any other document which can be proved through the evidence of ascribing witnesses. In this case the memo. Of seizure of heroin can be proved by examining the seizing Officer who had prepared it.
12. The prosecution in addition thereto have circumstantial evidence like reservation of his seat in the flight in question, presence of the applicant at the departure lounge of Karachi Airport and his arrest. All these circumstances are not denied by the applicant at any stage. In the present case although evidence has not been recorded as yet but on the basis of material available on record namely the First Information Report, Challan and Investigation papers, it cannot be said that the applicant is not guilty of an offence punishable for imprisonment for 10 years. It is only when from available material and on its tentative assessment it can be ascertained that reasonable grounds do not exist for believing that the accused has committed a non-bailable offence, that advantage of the provision of further enquiry referred to in subsection (2) of section 497, Criminal Procedure Code can be availed of. In this view of the matter I am supported by the decision reported in PLD 1985 Kar. 27 The State v. Aziz alias Abdul Aziz and the case of Muhammad Sadiq v. Sadiq and others reported in PLD 1985 SC 182.
13. ' In view of .What is said above, it cannot at this stage be said that reasonable grounds for believing that the accused has committed a non-bailable offence do not exist on record of the case so as to entitle the applicant to the grant of bail on the ground for further inquiry into his guilt.
14. It has indeed become a common practice of foreign nationals particularly the Afghans who have been using our country as a conduit to smuggle out narcotics to different countries in the world.
15. Such cases have brought not only the bad name to our country but have frustrated the efforts of the Government to curb such an illicit and anti-social trade. It is indeed high time now that the Courts should take note of such a situation and adapt a strict view while exercising discretion of granting bail to such offenders.
16. ' In the circumstances of the present case mentioned hereinabove the applicant does not deserve the concession of being enlarged on bail pending his trial in the Court of Special Judge (Customs and Taxation), Karachi. The bail application is, therefore, rejected.
17. The Special Judge Customs and Taxation at Karachi shall ensure to complete the trial of this case within a period of three months and the applicant will be free to repeat his bail application before the trial Court after some evidence is recorded in the case.