1. ' Sanab Gul, Preventive Officer, Custom House, Karachi lodged the F.I.R. On 28-10-1994 which is as follows:-- If while performing my duty at the International Departure Hall, Jinnah Terminal Complex, Quaid-i- Azam International Airport, Karachi, I intercepted a person namely Usman Akbar of dual nationality, holding British Passport No,700292180, who was leaving for Copenhagen via Abu Dhabi by P.I.A.
2. Flight No,PK-285. The passenger named above was asked to declare whether he was carrying any contraband goods i,e, narcotics etc. In his baggage or on his person to which he replied in negative. Being dissatisfied with his declaration his baggage consisting of one blue color 'Eminent' suitcase and a brief case were subjected to thorough examination in presence of two independent witnesses Messrs Mithal Shah and Sajid Awan which resulted in the recovery of 8 numbers polythene bags containing Brown Heroin in powder and solidified form, which were cleverly concealed in the false top and bottom of the suit case. However, nothing objectionable was recovered from his brief case. The heroin powder, so recovered on weighment was found to be 1.9 Kgs. (gross), which was seized along with containers and travelling documents of the passenger under a Mashirnama. Six representative samples of the seized heroin (three each of powder and solidified heroin) were also drawn duly sealed and signed by the above witnesses. It is worth mentioning that a pocket dairy containing various domestic/international addresses with telephone numbers along with Aero Asia Domestic Ticket No,532- 691784 in the name of one Mr. Faisal Khan was also recovered during the personal search of the accused person named above.
3. During preliminary investigations it was transpired that Mr. Faisal Khan from Attack District has masterminded the plan of heroin smuggling and according to accused person the above recovered diary and D/ticket also belong to him. Accused passenger namely Usman Akbar was arrested and served with a notice under section 171 of the Customs Act, 1969."
4. ' After usual investigation Mumtaz H. Khan, Investigating Officer, Custom submitted charge-sheet in the Court of Special Judge (Customs and Taxation), Karachi on 10-11-1994. Thereafter on 7-2-1995 charge was framed by the learned trial Court.
5. ' The bail application moved on behalf of the accused/applicant was rejected by the learned trial Court vide its order, dated 21-3-1996, hence he has approached this Court through this application for bail.
6. ' I have heard Mr. Syed Ghazanfar Ali Shah, the learned counsel for the applicant. The learned counsel has contended that statutory delay so happened in this case is not because of any fault at the end of accused and all the delaying tactics for concluding the trial solely rests on the shoulder of the prosecution. He has also contended that the applicant is a student of M.B.,B.S. And his involvement in the present incident is totally out of question and he has been made victim of this case. The learned counsel has cited case-law which would be discussed later on., ' I have also heard Mr. M. Roshan Essani, the learned D.A.-G. The learned D.A.-G. Has contended that delay whatsoever had occasioned is due to the conduct of the applicant himself, as on three dates of hearing cross-examination of the complainant could not be concluded. That prima facie prosecution has collected sufficient evidence against the applicant to connect him to be a person involved in drug trafficking alongwith Faisal Ali Khan who is an International Drug Trafficker and he had a thorough knowledge of drug trafficking, as a number of local and International addresses were found in the diary. Amongst other addresses, an address of G. Shanon was also found, where the accused person had to deliver heroin stuffed suit case. That an Aero Asian ticket was also recovered which revealed that Faisal Ali Khan had reached here from Islamabad on 28-10-1994 by Aero Asia Flight No,101. Both the accused persons were checked in Room No,203 of Hotel Zeeshan at Tariq Road, Karachi. According to the hotel record they were, checked in, the said hotel at about 4- 30 p.m. On 28-10-1994 and shared the same room. It was further discovered from the record of the hotel that the accused person checked out at about 5-30 p.m. And Faisal Ali Khan checked out at about 7-30 p.m. Efforts are being made to arrest absconding person namely Faisal Ali Khan. Danish D.L.O. Was also informed about the case and the name of the recipient i,e, G. Shanon who was to receive drugs in Copenhagen. Due to coordination and sharing of information, G. Shanon was arrested in Copenhagen and heroin powder was recovered and seized from him.
7. ' I would like to discuss all the authorities which are cited by the learned counsel for the applicant/accused and by the learned D.A.-G. For the State. The learned counsel for the applicant cited the following authorities which are as under:--
(1) Ahrar Muhammad and others v. The State PLD 1974 SC 224. The observations of the Honorable Supreme Court are as under:- "We have also carefully examined the order-sheets filed by the learned counsel for the State but are unable to agree with him that the conduct of the defense has been equally reprehensible in this case. By far the majority of the adjournments are not due to any fault of the defense. The responsibility for them lies either on the prosecution or the Court, which we regret to say, has displayed a degree of laxity that can only be described as deplorable. We 'have not been able to resist the impression that it appeared even willing to accept a request for adjournment."
8. ' This authority in my humble view is not helpful to the case of the accused/applicant. So far as this case is concerned the cross-examination was reserved at the request of the learned defence counsel and on 9-4-1995 and on 19-4-1995 the complainant could not be cross-examined due to the adjournment applications moved by the learned defence counsel. The case has proceeded and in examination-in-chief prima facie the complainant has fully implicated the accused/applicant and during investigation police has recovered British Passport No,700292180 of the applicant and Air France Ticket No,2-057-94-77892163-6 and pocket diary with D/Tikt.532- 691784(A/Asia) valued Pak. Rs,57,000.
(2) Muhammad Iqbal Zafar v. The State 1977 SCM R 474. The observation of the Honourable Supreme Court are as under:-- ".... According to the learned counsel for the State the investigation in the case had been completed and challan put in Court but he admitted that so far no sanction for prosecution of the Government servants had been obtained. He also admitted that there were about seventy prosecution witnesses in the case which involved a huge record. Under these circumstances the trial of the case in the Court of the Special Judge would take years to complete and we therefore, consider it a fit case to allow bail to the accused who has already been in lock-up for sufficient time."
9. ' In my humble view this authority is not applicable to the facts of the present case. Herein the case in hand the applicant is not a Government servant and sanction for prosecution is not required.
10. Moreover charge-sheet has been submitted by the prosecution and case has proceeded in the trial Court where evidence of complainant has been recorded in which he has fully implicated the accused and cross-examination could not be carried on due to adjournment applications of the learned defense counsel.
(3) Wazir Khan v. The State 1983 SCM R 427. The observations of the Supreme Court are as under:- "We issued notice to the State and have heard both the learned counsel for the petitioner as well as the learned counsel appearing on behalf of the State. The latter informed that Muhammad Khan, co-accused who is a Naik in the Pakistan Army has, indeed not been apprehended and the reason for the inability of the police to arrest him is that the Military authorities have refused to surrender his custody. From this it is obvious that the delay which has occurred in the commencement of the trial is neither attributable to the petitioner nor to any other person acting on his behalf' and it is not proper that the petitioner should suffer merely because the police is unable to apprehend Muhammad Khan, co-accused. The petition is. Therefore, converted into appeal and allowed."
11. ' This authority is quite different and distinguishable from the facts of the present case. In the cited case the custody of the person was to be taken from the Military Authorities whereas in the present case the accused has been charge-sheeted and the case has proceeded as already observed hereinabove in the earlier part of this order, therefore, in my humble view this authority is not applicable to the facts of the present case.
(4) Tariq Butt v. The State 1990 SCM R 1090. The Honorable Supreme Court held as under:-- "There is no satisfactory explanation why the trial has not so far been concluded. Although it is said that some of the adjournments made by the trial Court were at the request of the co-accused of the petitioner, it is not however, the case of the learned Deputy Attorney-General that any of these adjournments was sought by or occasioned by the conduct of the petitioner."
12. ' This authority is also not favorable to the case of the applicant because here in this case three adjournments were obtained by the learned defense counsel and the witness could not be cross- examined.
(5) Muhammad Ali Khan v. The State PLD 1991' Pesh.
66. A learned Single Judge of Peshawar High Court has held as under:- "The petitioner was arrested on 28-12-1987 and his trial has not yet commenced. This delay is not shown to have been occasioned by any act or omission of the accused or any other person acting on his behalf within the contemplation of subsection (1) of section 497, Cr.P.C. Similarly the plea of the petitioner for bail does not also fall within the mischief of fourth proviso to subsection (1) of section 497 ibid."
13. ' This authority is also not applicable to the facts of the present case as mentioned hereinabove.
14. The case was adjourned at the request of the learned defense counsel and whatever delay occasioned is due to the application of the person acting on behalf of the accused.
15. ' Mr. Muhammad Roshan Essani, the learned D.A.-G. Has cited the following case-law. In the case of Akhtar Abbas v. The State PLD 1982 SC 424. The observations of the Honourable Supreme Court are as under:-- "We regret we are not impressed by these submissions, as we find that the requirements of the law is not fulfilled in this case, as at least on eight occasions adjournments were sought by the defense for one reason or the other. In such a case it does not appear to be the intention of the law to calculate the amount of delay caused by the defense. All that is necessary is to see whether the finalization of the trial has, in any manner, been delayed by an act or omission on the part of the accused. In the present case, the delay is partly attributable to the accused. The submission that the date in question was not fixed for the hearing of the case is not correct. On the contrary, it is clear from the order sheet of the trial Court on these dates most of the witnesses were summoned and were present, but their examination had to be postponed owing to the request made by the defense counsel."
16. ' This authority is helpful to the case of the prosecution inasmuch as three adjournments were obtained by the defense counsel as such the cross-examination of the complainant could not be concluded. It would be pertinent to reproduce section 497(3):-- "Section 497(3).--- Provided further that the Court shall except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, direct that any person shall be released on bail---
(a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(b) who, being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not be concluded: ' Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism."
17. I have gone through the material placed with the case. According to the charge-sheet it is an admitted fact that sufficient quantity of heroin powder has been recovered from the possession of the accused/applicant who is holding British Passport bearing No,700292180. The documents including diary and domestic ticket and the record of Zeeshan Hotel, Karachi prima facie establish that accused is a member of a gang of the persons who are involved locally and internationally in the drug trafficking out of whom Faisal Ali Khan has been shown as absconder and according to D.A.-G. Efforts are underway for his apprehension and one G. Shanon of Copenhagen was arrested by the authorities in Denmark and heroin was recovered and seized from him. The examination-in chief of the witness is recorded on behalf of the prosecution in which he has fully implicated the accused/applicant. Case has proceeded and admittedly the cross-examination could not be carried on due to the adjournment applications moved by the learned defense counsel. The case- law cited by the learned counsel for the applicant is not helpful to the case of the applicant/accused. Whereas the case-law cited by the learned D.A.-G. Is helpful to the case of the prosecution. Moreover, delay whatsoever occasioned is due to the person who was acting on behalf of the accused/applicant in getting adjournments. Consequently case for bail on account of delay is not made out and this application is dismissed. However, the trial Court is required to complete the trial within a period of four months from receiving the order by proceeding expeditiously/day to day in the matter.