1. ' By this application the applicant seeks cancellation of bail granted to him in Special Case No,26 of 1997 (The State v, Wali Muhammad), registered under section 156(1)(8) of the Customs Act, 1969.
2. ' The brief facts of the prosecution case are that staff of Directorate-General of Intelligence and Investigation (Customs and Excise), Karachi, received Credible information that a syndicate of smugglers operating from upcountry and smuggling Charas/heroin powder and are transporting the same in trucks to Karachi. The two brothers namely, the applicant and co-accused Fazal Muhammad are operational, functional, planner, custodian and involved in the organized crime and had recently purchased a plot measuring 720 square yards for dumping of narcotics for smuggling the same out of Pakistan with the active connivance of the other members of the syndicate.
3. ' In pursuance of the above information, a raiding party was arranged under the supervision of Dr. Kamal Azhar Minhas, Dy. Director-General of Intelligence and Investigation (Customs and Excise), Karachi who raided the dumping place of the applicant and his brother, situated at Dhani Bux Goth, Karachi, on 24-1-1997 at about 10 a.m. A statement of search was given under section 163 of the Customs Act to the applicant, the owner of the place who was found available in the premises. In presence of Mashirs the premises was searched and 251 polythene bags containing smuggled Charas of foreign origin, wrapped in wrapping paper and smuggled heroin powder in plastic bags were found concealed in one of the rooms of the premises. The Charas in slabs was found with golden marks and numbers Mezar, Kabul A. Turkamanistan A one & 222. The abovesaid Charas and hernin were weighed in presence of two Mashirs and the applicant which became 10040 Kgs. Of Charas and 450 grams of heroin powder. Three representative samples approximately 30 grams each of Charas and three representative samples of heroin powder weighing 15 grams were drawn and sealed on the spot, duly signed by the witnesses and the applicant. On personal search of the applicant, his N.I.C. No,519-56-231335 was also recovered. The said Charas as well as heroin powder were sealed separately under Mashirnama. The inventory was prepared at the spot. Duly signed by the witnesses and the applicant was arrested and notice under section 171 of the Customs Act, 1969 was served upon him. It is further mentioned that during the investigation the applicant disclosed the name of his brother as Fazal Muhammad, actively involved in the smuggling of Charas.
4. ' The case was challaned before the Special Judge (Customs and Taxation), Karachi, where application for grant of bail on the ground of delay was filed and Mr. Jahangir S. Bhatti, a link Judge, granted bail to the applicant.
5. ' I have heard Mr. Syed Tariq Ali, the learned Standing Counsel, for the applicant and Mr. Ilam Din Khattak, the learned counsel for the respondent.
6. ' It is contended by the learned Standing Counsel on behalf of the complainant/applicant that the bail in this case has not been granted by incharge Special Judge (Customs and Taxation), Karachi, but has been granted by Mr. Jehangir S. Bhatti, a link Judge for certain period. According to him the applicant is involved in transporting and smuggling huge quantity of narcotics from upcountry and onwards for smuggling out of Pakistan through his associates consisting of Gang of Smugglers. In this case also' about 10040 kgs. Of Charas of foreign origin and 450 grams of heroin powder was recovered from one of the rooms in possession of the applicant in his presence and such quantity of narcotics substance could only be kept in possession by a hardened, desperate or dangerous criminal. Irrespective of this, the learned Standing Counsel contended that the act itself is an act of terrorism and in these circumstances the case of the applicant would be covered under fourth proviso to section 497, Cr.P.C. With regard to the grant of bail under third proviso it is argued that the same too was not available to the applicant at the time he was granted bail. According to him charge in the case was framed on 17-11-1997 and it was on 6-1-1998, when P. Ws. Were present, the case was adjourned because of absence of defence counsel. Thereafter, on each and every date of hearing P.Ws. And Investigating Officer were all along present and never absented on a singly date of hearing as such burden that the case did not proceed cannot lie on the shoulders of the prosecution. The learned Standing Counsel further pointed out that on 17-3-1998, 25-3-1998 and 2- 4-1998 two P.Ws. And Investigating Officer were present but the diaries show that it was by.
7. Consent the matter was adjourned.
8. ' On the other hand, Mr. Ilam Din Khattak, the learned counsel for the respondent vehemently controverted the above contention of the applicant's counsel and contended that the respondent has been allowed bail rightly under third proviso to section 497, Cr.P.C. According to him, the applicant was arrested on 24-1-1997 and is in custody all along but his case has not yet concluded as such even if the period of adjournments obtained by him is excluded, even then he would be entitled to the relief. He admits that on 6-1-1998 the matter was adjourned for want of defence counsel. He also concedes that, as pointed out by the learned counsel for the applicant, on the above-referred dates the matter was adjourned by the consent of respondent's counsel and the State Counsel. He lastly submitted that the respondent's case would not be covered by fourth proviso to section 497, Cr.P.C. As according to him mere possession of alleged Charas and heroin powder is not sufficient to term him to be a desperate, dangerous or herdened criminal. In support of his contention he relied upon the case-law reported in 1997 SCM R 361, PLD 1990 SC 934, 1996 PCr.LJ 863, 1993 SCM R 525, 1995 PCr.LJ 1683, PLD 1995 SC 95, 1997 PCr.LJ 189 and PLD 1992 Kar.
9. 172.
10. ' I have given anxious thought to the contentions raised at bar by the learned counsel for the parties and have gone through the case diaries and the impugned ing bail to the respondent by the learned trial Court. According to the F.I.R. The applicant as well as his brother are the members of gang which transports the narcotics in huge quantity from upcountry for onward smuggling out of Pakistan. In this case 10040 kgs. Of foreign origin Charas and 450 grams of heroin powder were recovered from the room in possession of the applicant in his presence, for which a notice under section 171 of the Customs Act, 1969 was served upon him, to which he could not reply in any manner. The abovesaid act can only be done by a person of desperate mind and is sufficient to conclude that he is a dangerous and hardened criminal. Even above that such an act can be the act of terrorism as the alleged offence is not only an offences against the society but attacks and paralysis the precious lives of a number of innocent persons.
11. Adverting to the grant of bail on statutory delay in the conclusion of trial, I am of the opinion that the same too was not available to the applicant and has wrongly been allowed. Admittedly the applicant was arrested in this case on 24-1-1997 and charge was framed on 17-11-1997. On 6-1- 1998, all P.Ws. Were in attendance but the case was adjourned because of absence of defence counsel and thereafter, on all the dates P.Ws. Were all along present. From 25-2-1998 till 12-3-1998 bail application was filed and the Court was dealing with the same alone. On 17-3-1998, 25-3-1998 and 2-4-1998, P.Ws. And case property were available but the case was adjourned by consent for recording evidence and disposal of bail application. Apparently from these diaries it is transparent that time was sought for the first time on behalf of the applicant on 6-1-1998 before completion of the statutory period of one year. If time had not been sought, the case would have proceeded and ended on that date alone. Irrespective of this, on 17-3-1998, 25-3-1998 and 2-4-1998 the case was adjourned with the consent of defence counsel alone which factor goes against the applicant.
12. From the perusal of entire diaries the presence of P.Ws. On each and every date of hearing has been established, as such it cannot be said that the delay in the conclusion of trial has occurred because of absence of prosecution witnesses.
13. ' The case-law referred by the respondent's counsel is on different facts and circumstances and has no bearing with the facts of the respondent's case.
14. ' For the foregoing I am of the view that the order of the learned Trial Court is not in accordance with law and has been passed without applying mind to the factual as well as legal aspects of the matter. The same is recalled and this c bail is cancelled. The Trial Court is directed to take the applicant in custody if he surrenders or otherwise N.B.Ws. Be issued against him.
15. Bail cancelled.