1. ' Applicant Khalid Mahmood son of Hamr Khan is detained in Crime No,9/92 under Article 3/4 of Prohibition (Enforcement of Hadd), 1979, as also under some provisions of the Customs Act, for which separate challan seems to have been submitted against him, before the Customs Court. As far the case under Article 3/4 against him and co-accused, same is pending before Additional Sessions Judge, Malir, Karachi, where an application for bail was moved on behalf of the applicant, which is dismissed on 19-1-1995. The applicant has, therefore, approached this Court for bail.
2. ' The F.I.R. Was lodged by Inspector Hussail Ali Baloch of F.I.A., I&AS Seaport, Karachi, on 11-12-1993. It is stated that on the basis of a secret information that a foreign national with the active connivance of the officials. Of the Government agencies working at Jinnah Terminal, Karachi, was attempting to smuggle contraband items like heroin powder through K.L.M. Flight, which was scheduled to depart for Amsterdam. The Inspector, assisted by his colleagues and with the permission of his superiors kept strict vigil over the area through which the foreign national was to pass. The party took position near toilet in front of Gate No,23 when they noticed a foreigner along with another person having entered the toilet. The two accused were then apprehended and from the personal search of the foreigner, two polythene bags wrapped with his knee caps were secured, each containing approximately 2-1/2 Kgs. Of heroin powder. His Italian passport and other documents were also taken into possession. During interrogation the said foreigner, whose name was disclosed as Tisi Lorenzo, led the information that the heroin powder was given to him by one Omair, the other person who entered in the toilet Omair was also arrested and similar quantity of heroin powder was recovered from him which he had wrapped around hiiiknee caps. Some other documents which are referred in the F.I.R., were also recovered.
3. ' On interrogation, accused Omair Ahmad disclosed that the applicant Khalid Mahmood was the other associate with him and Tisi Lorenzo. A raid was conducted at the house of applicant, situated at Usman Ghani Road, Manzoor Colony, Karachi, and from the search of his house heroin powder weighing 20 Kgs. Was recovered. Applicant was also arrested and the recovered stuff taken into possession.
4. ' I have heard applicant's learned counsel and the D.A.-G. The contention of Mr. Muhammad Ilyas Khan, learned counsel for the applicant is that Article 3 of the Order is not applicable in the present case but if the prosecution version is believed, the case would fall under Article 4 of the Order. In such circumstances according to the applicant's learned Advocate, because the recovery was not effected from a public place, the offence would not be cognizable, as provided under Article 16 of the Order. Further, contention of the learned counsel is that for the purpose of search of a house for offences under Article 3/4 of the Order, a warrant, as provided under Article 22 of the Order, was necessarily to be obtained but the same was not done although the Inspector had advance information that he was going to conduct a raid at a house pointed out by co-accused. The raid, the recovery and the arrest of the applicant in the circumstances become illegal. He has referred to the cases reported in PLD 1990 Pesh. 158, PLD 1988 Lah. 574 and 1985 PCr.LJ 1353.
5. ' Another contention of the learned counsel is that applicant was shown arrested on 11-12-1993 and has been in custody for more than one year and the trial is not concluded for no act or omission on the part of the applicant and, therefore, under third proviso to subsection (1) of section 497, Cr.P.C.
6. The applicant has qualified to be enlarged on bail. He has referred to the case of Zahid Hussain Shah v. The State PLD 1995 SC 49.
7. ' Learned D.A.-G. While opposing this bail application, vehemently argued that the applicant Khalid Mahmood was one of the accomplice, two having been arrested at the airport and who during interrogation disclosed applicant's name, necessitating the conducting of a raid at his residence which resulted into recovery of a huge quantity of heroin powder. As to the delay in conclusion of trial the learned D.A.G. Contends that because another case under the Customs Act was also registered and the trial of the applicant is pending before different Courts, some delay has been caused which cannot be attributed to the prosecution and the fact that applicant is a dangerous criminal dealing with huge quantity of narcotics he would not be entitled to bail under fourth proviso of subsection (1) of section 497, Cr.P.C. It is also argued that the raid was conducted at the house of the applicant during odd hours of the night and independent witnesses, therefore, could not be associated and further that the raid and search proceedings were being kept very secret.
8. I have considered the above contentions and have perused the impugned order, the F.I.R. In this case and the case-law cited by the applicant's learned Advocate. In my view the offence would fall under Article 4 of the Order and not Article 3 thereof. In such a case it was mandatory on the Seizing Officer/ Insepctor-complainant to have obtained a warrant under Article 22 of the Order before conducting search and affecting arrest of the applicant. The recovery is said to have been effected from inside the house of the applicant and under Article 16(1)(b) an offence would be cognizable only if committed at a public place. The offence, for which the applicant is charged, therefore, is not a cognizable offence, as laid down in the above provision. The delay in conclusion of trial cannot be attributed to the applicant. The law by now is very clear that if the delay is not occasioned by any act or omission on the part of the accused 'he would be entitled to bail as a matter of right under third proviso of subsection (1) of section 497, Cr.P.C. Irrespective of the huge quantity of heroin, allegedly recovered from the house of the applicant, his case in my view requires further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. As there are reasonable grounds to believe that he is not guilty of an offence punishable with death, imprisonment for life or for ten years. I am, therefore, inclined to grant him bail and the applicant shall be so released if he furnishes one surety in the sum of Rs,5,00,000 (Rupees five lacs) with P.R.
9. Bond in the like amount to the satisfaction of the learned trial Court.