1. ' The facts of the prosecution case are that on 17-10-1995 complainant Pir Bashir Ahmad Sarhandi, Platoon Commander, University Force, Jamshoro, received wireless message from S.P. To arrive at L.M.C. Octroi Post along with subordinate staff, Inspector Pir Bashir Ahmed Sarhandi along with A.S.I.
2. Rana Jangsher, P.C. Muhammad Saleem, P.C. Khursheed Ahmed, P.C. Ghualm Freed, P.C.Ziauddin, P.C. Hoth Khan, P.C. Lal Zaib, PC Muhammad Ismail, P.C. Rahim Bux, P.C. Amir Hussain, P.C. Abdul Sattar, P.C. Majid Hussain, P.C. Driver Fazal-ur-Rehman proceeded there on Government vehicle after making usual entry in the Police Roznamcha. At about 1-00 p.m. Sikander Ali Mangsi S.P. Kotri arrived there and told that he has received spy information that narcotics dealer Zahir Shah along with his associates would take narcotics for sale on Suzuki No,U-0911 from Jamshoro Colony, as such complainant Inspector Pir Bashir Ahmad was ordered to observe Naka Bandi for their arrest, at about 1-30 p.m. They saw the above Suzuki coming from Railway Crossing on Super High Way.
3. Seeing police two persons got down from Suzuki and ran away in jungle, to whom they identified as Zahir Shah and Muhammad Moosa Pathan. One person jumped down from Suzuki and fell down and received injury on his left arm. He was caught hold, another person in the Suzuki was also dragged out from the Suzuki. The injured person disclosed his name as Sadain son of Muhammad Khan Pathan and another disclosed his name as Zahid son of Habibullah Pathan. Both were arrested and their person was searched, from the side pocket of the shirt of the applicant Sadain one bundle in plastic bag containing Charas was secured and from pocket of waist-coat of Zahid of bundle of opium plastic bag was recovered, thereafter Suzuki was searched and from its dash board two bundles of charas in plastic bag were secured. Charas secured from Sadain weighed one kilogram whereas opium secured from Zahid weighed one kilogram. Police also secured two kilogram of Charas from the dash-board of the Suzuki. From the above bundles of Charas awful opium 250 grams were taken as sample for examination of Chemical Examiner. One National Identity Card and Rs,180 were also secured from Sadain. Mashirnatna for Seizure of Suzuki, Charas and Opium was prepared on the spot by Inspector Pir Bashir Ahmad Sarhandi in presence of Mashirs A.S.I. Rana Jangsher and P.C. Muhammad Saleem.
4. ' After usual investigation charge-sheet against the applicants was submitted by the police for the offences under Articles 3, and 4 of Prohibition (Enforcement of Hadd) Order, 1979 read with sections 6/8 and 9 of the Control of Narcotic Substances Ordinance, 1995 before the A.D.M. Kotri on 23-10- 1995.
5. ' Bail application on behalf of applicants/accused was moved before the Special Judge, Narcotics, Dadu which was rejected by -the learned trial Court vide order dated 23-12-1997 Hence applicants have approached this Court for bail.
6. ' Mr. Shuaib Shibli, learned Counsel for the applicants contends that accused/applicants are in custody since 17-10-1995, since then even formal charge has not been framed by the learned trial Court, that not on a single day the accused/applicants were produced by the Jail Authorities before the Trial Court, Chemical Analyser's Report has not yet been obtained/submitted by the police before the trial Court, delay whatsoever is not attributed to the accused/applicants or anybody acting on their behalf. That in view of the provisions of section 9 of the Anti-Narcotics Substance Act, 1997 maximum punishment provided for the offences is up to seven years, accused/applicants are not required in any other case and they are not previous convict. The learned counsel refers (1) Zahid Husain Shah v. The State PLD 1995 SC 49, (2) Abdul Khalique v. The State PLD 1990 Karachi 448, (3) Gul Muhammad and 2 others v. The State 1987 PCr.LJ 737, (4) Shekil v. The State PLD 1997 Kar. 172 and (5) Jaggat Ram v. The State 1997 SCMR 361 and an unreported judgment of a D.B. Of this Court in Criminal Bail Application No, 602 of 1997.
7. ' Mr. Shaikh Azizur Rehman, the learned counsel for Advocate-General contends that in view of the provision of section 51 of the Anti-Narcotics Substance Act, 1997 accused/applicants are not entitled to be released on bail by this Court as the punishment provided is death. However, so for the facts stated by the learned counsel for the applicants, the State counsel does not controvert the same. He raises objections for grant of bail only in view of the provisions of section 51 of the Anti-Narcotics Act, 1997.
8. ' We would like to discuss the case-law cited by Mr. Shuaib Shibli, learned counsel for the applicants:
(1) PLD 1995 SC 49. Their Lordships have held that right of an accused person to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. Is a statutory which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused to get bail under the third proviso of section 497(1) is not left to the discretion of the Court but is controlled by that proviso.
9. The bail under the third proviso to section 497(1), Cr.P.C. Can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on his behalf.
(2) PLD 1990 Kar.
448. In this case Full. Bench of this Court while considering the provisions of Terrorist Activities (Special Courts) Act, (XV of 1973) sections 7, 561-A end 426, Cr.P.C. Observed that while power of appeal is given to the High Court, power of grant of bail has been expressly taken away by mentioning in clear language that "no order can be passed under section 426, Cr.P.C. Expression no court in section 7 includes High Court hearing appeal. High Court under section 561-A, Cr.P.C., however, has power to make such orders as may be necessary to give effect to any order under Criminal Procedure Code or to prevent abuse of process of any Court or otherwise to secure ends of justice.
(3) 1987 PCr.LJ 737. Learned D.B. Of this Court has observed that power of High Court under section 497, Cr.P.C. To grant bail to an under trial prisoner, facing trial before a Special Court constituted under Act of 1975 held remained unaffected and High Court could grant bail on any grounds available under section 497, Cr.P.C.
(4) PLD 1997 Kar.
172. Learned D.B. Of this Court in this matter held that where the case of accused clearly falls under the third proviso of section 497(1) Cr.P.C. Accused is entitled to bail as of right leaving no discretion with the Court.
(5) 1997 SCMR 361. Their Lordships of the Supreme Court have observed that since accused was neither involved in any other case nor he had - ever been prosecuted earlier in any case. Nothing was available on the record in support of any other criminal activity or criminal conduct of the accused which could lead to the conclusion that he fell within the category of hardened, desperate or dangerous criminals. Mere fact that at the time of the commission of the offence the accused was allegedly found transporting heroin during day time on a donkey cart was not sufficient to hold him as a hardened, desperate or dangerous criminal and bail was granted.
10. It would be pertinent to mention here that prior to this bail application, Bail Application bearing No, 66 of 1996 was filed on behalf of the applicants which was dismissed by a D.B. Of this Court vide order dated 6-3-1996. We are also conscious of the fact that offence of drug trafficking no doubt has created problems for the country and the society at large and this menace can only be curbed provided Government functionaries assigned the job of investigation, complete the investigation in time and also obtain necessary circumstantial evidence like that of Chemical Examiner's Report, in this case it is unfortunate aspect of the case that so many time bail applications on behalf of the applicants were moved which were rejected by the Courts even then after lapse of more than two years the prosecution did not take efforts to produce the accused before the trial Court so that trial could be concluded. The applicants even were not produced before the trial Court so that charge could be framed, Chemical Examiner's Report which is very necessary to substantiate the claim of the prosecution. That the substance so recovered actual falls under the provisions of the Anti- Narcotics Substance Act, 1997 which report even today is not available with the learned counsel for the State. The delay whatsoever occasioned in the conclusion of the trial, in any case, is not attributed to accused/applicants or anybody acting on their behalf and previous conviction even is not alleged against the accused/applicants. Moreover, according to the prosecution even no other criminal case is pending against the applicants/accused. The provision of section 51 of the Anti-Narcotics Substance Act, 1997 were not available in the Anti-Narcotics Ordinance 1995 which was promulgated on 8-4-1995 whereas Anti-Narcotics Substances Act, 1997 has been promulgated on 12-4-1997. Advisedly we refrain to dialate upon the applicability of section 51 of the Anti-Narcotics Substances Act, 1997 at this stage which may prejudice case of either party before the trial Court.
11. ' The case-law cited by Mr. Shuaib Shibli, Advocate on behalf of the applicants is relevant, helpful and applicable to the case of the present applicants. Under the circumstances mentioned hereinabove which we respectfully follow.
12. For the foregoing reasons keeping in view the delay occasioned in the conclusion of trial coupled with non-availability of Chemical Examiner's Report, non-pendency of any case against the applicants, even no previous conviction is alleged against the accused/applicants under the circumstances, prima facie case of the applicants, at least, requires consideration for bail which accordingly is hereby granted and applicants may be released on bail on furnishing solvent surety in the sum of Rs,7,00,000 each with P.R. Bond in the like amount to the satisfaction of the trial Court.
13. ' Before parting with this order we would like to observe that in this case gross negligence is attributed to Government functionaries viz. Police/Jail Authorities and Chemical Examiner. A copy of this order be sent to the. Secretary Home Department, Sindh so as to hold proper inquiry and take suitable action against the responsible officers in this matter. The outcome of the inquiry and action so taken may be communicated to this Court.
14. ' Order accordingly.