ORDER: QAISER AHMED HAMIDI, J.--1. This is an application for bail made on behalf of applicant Shaz Din who is detained in Crime No, 1 & P/Misc-42/1992, dated 2nd August, 1992, under section 156(1)(8), read with section 178 of the Customs Act, 1969. The bail application made on his behalf was rejected earlier by learned Special Judge (Customs and Taxation), Karachi, vide order dated 17th September, 1992.
2. On 25th May, 1992 co-accused Rahim. Gul who had travelled under the assumed name of Muhammad Dur Khan was arrested at King Khalid International Airport, Riyadh (Saudi Arabia) and from his possession 650 grams of powder of heroin secreted inside his body was recovered. It is alleged that during the course of investigation co-accused Rahim Gut disclosed the name of present applicant as the supplier of powder of heroin and it is the case of the prosecution that co- accused Rahim Gul made confession before Qazi implicating the applicant as real beneficiary. An information was, therefore, conveyed by Consular Narcotic Affairs in Pakistan, Royal Consulate of Saudi Arabia, Karachi, to Pakistan Customs and on the basis of this information Javaid Akhtar/Moghul, Senior Preventive Officer lodged F.I.R. in this case. After usual investigation the applicant was sent up before the Special Judge (Customs and Taxation), Karachi, under an incomplete charge-sheet.
3. I have heard Mr. Ghulam Mustafa Memon, learned counsel for applicant and Mr. Fareeduddin, learned counsel for State. The latter has opposed the bail application.
4. The case of the prosecution against the applicant mainly rests upon the confessional statement made by co-accused Rahim Gul before a Qazi in Saudi Arabia wherein he is said to have implicated the applicant as the supplier of the powder of heroin and the main beneficiary. The said confessional statement is not available with the prosecuting agency. The Qazi who has recorded the confession is not made a witness and in the interim challan submitted against the applicant only three persons, viz., Javaid A. Moghul, S.P.O., Faridullah P.O. and Nazir Ahmad, Hawaldar are cited as prosecution witnesses. It is thus obvious that the prosecution agency has no intention to examine the Qazi as a prosecution witness. There is, therefore, good deal of force in the contention of learned counsel for the applicant when he states that a confession of co-accused recorded in Saudi Arabia would neither be admissible in Pakistan nor it can be used as a piece of evidence during the course of trial against the applicant.
5. Mr. Fareeduddin, learned counsel for the State has made various submissions, all very ingenious and subtle. On ;the foundation of the following facts as unfolded in the charge-sheet, he has built a superstructure of conjectures:-- "During investigation conducted by the undersigned it has been revealed that co-accused Shaz Din has a comprehensive knowledge of drug trafficking between Pakistan and Saudi Arabia. He has transpired to be instrumental in sending many Pakistani nationals to Saudia Arabia with drugs (Heroin). It has also emerged in the investigations that he knows the venue of receipt of drugs in Saudi Arabia and has also vaguely pointed out certain areas where the drugs were believed to be stored in Saudi Arabia. This vital information has been conveyed to the Consular Narcotic Affairs of Saudi Arabia based in Karachi."
6. The cases are decided upon tangible evidence, be it positive or be it circumstantial. There is, however, no warrant to prosecute a person on mere conjectures and on the basis of mere words of co-accused.
7. It is also contended on behalf of the State that there is Possibility of securing some more evidence against the applicant. I have to make use of the material before me in its present condition and not as it will appear after few months. On the material before me it appears to me that there is absolutely no evidence on record connecting the applicant with this crime.
8. The perusal of the record further reveals that efforts are being made by Government of Saudi Arabia or the extradition of the applicant so that he may be tried with co-accused Rahim Gul. This Court is not at all concerned with the question of extradition of the applicant, which is to be regulated by the provisions contained in the Extradition Act, 1972, and has only to see whether on the basis of evidence available on record in this crime the applicant is entitled to the grant of bail or not. It may, however, be added that section 19 of the Extradition Act, 1972, itself provides for the release of persons detained under the said Act on bail in the following words:-- "The provisions of the Code of Criminal Procedure, 1898, relating to bail shall apply to a fugitive offender arrested or detained under this Act in the same manner as they would apply if he were accused of committing in Pakistan the offence of which he is accused or has been convicted; and in relation to such bail the Magistrate before whom he is brought shall have, as far as may be, the same powers and jurisdiction as Court of Session under that Code."
9. Thus, from whatever point of view the matter may be looked at, it is obvious that the applicant is entitled to the grant of bail. Accordingly bail is allowed to applicant in the sum of Rs, 100,000 (Rs, one lac) with two sureties of Rs, 50,000 (Rs, fifty thousand) each and P.R. bond of the like amount to the 'satisfaction of the trial Court.