1. ' Applicants Mubarak Ali and Rizwan Ellahi, are facing trial in a case registered against them through an F.I.R. Lodged by Mr. Abdul Qadir Soomro, Assistant E.T.O. On 8-12-1994. The facts of the case in short are to the effect that on a spy information the Excise Police followed a car and stopped it near Liaquat National Hospital. The persons riding in the car were searched. Applicant Mubarak Ali was sitting on the driving seat and from his possession two packets containing heroin powder were secured. Similarly applicant Rizwan Ellahi who was also in the car was found in possession of 1 Kg. Heroin. There were two other passengers one of whom was a Kenyan national, two passports in name of applicant Mubarak Ali were also secured. The remaining co-accused each had a passport with himself. This had happened on 8-12-1994.
2. ' The applicants are facing trial from the date of their arrest and continuously till this date they are in custody. They are not held liable for the delay in.Disposal of their case.
3. ' The learned counsel for the applicants had pointed out that earlier an application for their bail was rejected by this Court (Criminal Bail Application No,288 of 1996) on 16-10-1996, thereafter, the applicants again approached the trial Court for bail but the trial Court has refused the request of the applicant holding that although on the ground of statutory delay they became entitled to the grant of bail but since they were found in possession of dangerous drug i,e, heroin powder which they were transporting, they were hardened, desperate and dangerous criminals and therefore, they were not entitled to the concession of bail which is provided by 4th proviso to subsection (1) to section 497, Cr.P.C. The learned counsel appearing for Advocate-General, Sindh, has opposed the grant of the bail to the applicants on the same ground which found weight with the trial Court.
4. ' I have considered the arguments of the learned counsel for the applicants who has contended that for the purpose of holding a person to be affected by the 4th proviso to section 497(1), Cr.P.C. It is necessary that the prosecution place on record some material which may prove that the applicant is previous convict, or which may prove that he is desperate, dangerous and hardened criminal. The contention of the learned counsel for the applicants is that no such material has been placed by the prosecution before this Court in spite of seeking time on many dates.
5. ' The case of the applicants appears to be governed by the principle laid down by the Supreme Court in the case of Jaggat Ram v. The State 1997 SCM R 361 wherein under similar circumstances bail was allowed to an applicant who was transporting 25 Kg. Of heroin powder but was caught during day time. It was held that in the absence of the material proving the applicant to be a previous convict, or a dangerous, desperate or hardened criminal, mere fact of his having been found in possession of 25 Kg. Heroin powder while transporting same should not by itself make the applicant to be affected by the definition of hardened, desperate or dangerous criminal. He was not a previous convict.
6. The facts of the present case also disclose that there was no material in possession of the prosecution to show that the applicant is a previous convict. There is no record laid down before this Court by the prosecution to show that the applicants are involved in other cases. In the earlier order of this Court the bail was refused to the applicants on the ground that since they were found in possession of the dangerous drug, they must be hardened, dangerous and desperate criminals on that account. But in view of the principle laid down in the case of Jaggat Ram v. The State, I find that this circumstance alone should not be considered as the proof of the applicants being desperate, dangerous and hardened criminals. Therefore, in view of the principle relied on by the Supreme Court I find that the applicants' case is similar to the case of Jaggat Ram. Under these circumstances this application is allowed. The applicants are granted bail each in the sum of Rs,2,00,000 (two lacs), with two sureties each in the sum of Rs,1,00,000 (one lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.