1. ALI MUHAMMAD BALOCH, J. - Applicant Khalid Yousuf Malik, is facing trial in a case reported against him by Abrar Ahmed Preventive Officer Customs House Karachi, on 12.7.1995.
2. The facts of the case in nut-shell are that on the night between 11th & 12th July, 1995, Abrar Ahmed, found in the baggage of three out-going passengers heroin powder wrapped in 139 polythene packets, cleverly concealed in the side walls of the suit cases. The passengers were Christopher Rollins Kelly, Carrie Leigh Dempsey and Jody Lynn Robledo. The heroin powder was seized, the passengers were arrested and Investigation was carried out. As the result of the investigation in the final charge-sheet the three passengers and the present applicant were shown as accused and in the trial in the Court of Special Judge (Customs & Taxation) Karachi, the three passengers who are foreigners and were leaving for America, pleaded their guilt and they were convicted and sentenced to undergo R.I. 5 years and pay fine of Rs. 20,000,00/-.
3. As regards the present applicant he did not plead guilty and claimed to be tried and since then he is reported to be in custody till this date while the case has not made progress against him.
4. Allegation against the present applicant is that the applicant was the person who had provided the heroin powder to the co-accused who were attempting to take it away out of Pakistan, when they were arrested and the heroin was secured from their possession and they had pleaded guilty.
5. It is the case of the prosecution that the co-accused and the present applicant were staying in a hotel in Lahore, where the applicant was using a fake name of Abdul Mateen.
6. Learned counsel for the applicant while arguing the bail application urged that the applicant has been involved falsely. He stated that the applicant has remained in jail for more than l2 months and has not attributed any delay to the proceedings and therefore, he is entitled to be released on bail. The learned D.A.G, has vehemently opposed grant of the bail to the applicant and has pointed out that the prosecution is in possession of the evidence to show the applicant while using fake name of Abdul Mateen, had borne the expenses of the stay in the hotel of the co-accused and that the prosecution has also evidence to show link between the co-accused and the applicant from the telephone record. As regards the delay, learned D.A.G, stated that witnesses belong to Lahore, while the trial has to take place in Karachi, and that the prosecution has been making all efforts to see that the trial takes place at an early date. Learned D.A.G, also informed that the prosecution intends to examine PWs. Mehdi Raza, the Manager of the hotel at Lahore, Aslam Hayat, the Waiter and Naseer Ahmed Storekeeper, whose evidence shows that the applicant was in league with the co-accused who had already been convicted and that he had provided them suit-cases from which the heroin was recovered. The learned counsel for the applicant made an attempt to show that evidence of these witnesses cannot lead to the result that the applicant had supplied the heroin powder to the co-accused.
7. This is the stage of bail and deeper appreciation of the evidence is not permitted by law and this Court also does not want to made any observation which may prejudice the trial Court. The trial Court in its order rejecting the bail application has observed that the prosecution had brought on record the fact that the applicant Khalid Yousuf Malik, had stayed with the foreigner co-accused at the hotel in Lahore, under the fake name of Abdul Mateen, through the evidence of PWs. Mehdi Raza, who was the Manager of the hotel, PW Assad Receptionist and telephone operator, PW Aslam Hayat, Waiter and PW Naseer Ahmed, Store-keeper. The same witnesses in their evidence proved that all the expenses of the boarding and lodging of the co- accused in the hotel were borne by the applicant.
8. In presence of such material, and looking to all the circumstances of this case I do not consider this case a fit case for grant of bail to the applicant. Even though the applicant has remained in jail beyond l2 months, in this case. I do not consider that the applicant will be entitled to be released on bail even on the ground of delay as the applicant appears to be a dangerous criminal within the meaning of 4th proviso to Section 497 Cr.P.C. As a result, this application is dismissed.