1. ' Brief facts of the prosecution case are that Athar Meraj, Customs Officer registered the F.I.R. On behalf of the State stating therein that he received an information from HQ 45 Army AD Bds.
2. Pakistan Army that they had been informed by I.S.I. Det. Karachi that wagon No,64912 had been suspected to be containing Hashish (Charas) and that they wanted to carry out the examination of the said wagon. Army personnel further desired that Customs staff may also be associated to assist them in the contemplated exercise. Customs Party headed by Mr. Lutfullah Virk, Assistant Collector of Customs (Headquarters) Customs House, Karachi reached the Cantt. Railway Station.
3. Upon reaching there co-ordinated efforts were made and the said wagon which was stationed in railway marshalling yard of the Railway Station, Karachi was searched which resulted in the recovery of wooden boxes resembling ammunitions used by defence forces. The wooden boxes were de-stuffed from the said wagon and eventually subjected to examination. As a result of this exercise 109 wooden boxes were found to contain Hashish (Charas) which on weighment was found to be 6114 K.Gs. The Hashish so recovered and wooden boxes were seized as unclaimed, the receipt of which was handed over to the Railway authorities. The Military personnel of the above Army formation handed over the Hashish and the containers (wooden boxes) to Drug Enforcement Cell of the Preventive Collectorate Customs House, Karachi which were accordingly seized under a mashirnama which was prepared on the spot. On scrutiny of the Railway documents the declared contents were 'P.A.F. STORES' and the sender's name was given on the documents as "OC Pakistan Air Force Academy RCS' and the so-called Pakistan Air Force Stores were meant for O.C. P.A.F. Base Maripur, Karachi. After taking the possession of the seized Hashish and completing legal formalities, investigation was initiated to identify the culprits responsible for smuggling of Hashish from the Northern areas for onward smuggling to foreign ports.
4. ' After lodging of the F.I.R. Usual investigation was taken, during investigation statement of the present accused/applicant was recorded before the Director-General of I.S.I., Investigating Agency who collected evidence and submitted interim charge sheet on 3-8-1995, whereas present accused/applicant was at Peshawar Jail. Final charge-sheet was submitted on 10-11-1996 and supplementary charge sheet was again submitted on 19-3-1997.
5. ' Bail application on behalf of accused/applicant was moved before the learned trial Court which was rejected by the learned Special Judge (Customs & Taxation) Karachi vide order, dated 27-1- 1998. Hence the present bail application.
6. ' Learned counsel for the applicant/accused contends that prosecution has failed to comply with the mandatory provisions of section 173, Cr.P.C. By not submitting charge-sheet in time before the concerned Court. That the prosecution has also failed to comply with the mandatory provisions of issuing notice under section 171 of the Customs Act and in absence of such notice the whole proceedings are liable to be vitiated. That the alleged statement/confession of the applicant/accused before the Director-General of I.S.I. About the commission of the offence is not admissible under Article 38 of the Qanun-eShahadat Order. That the applicant/accused is in continuous custody for the last more than 2 and half years and the trial has not yet been concluded. That the learned trial Court while passing impugned order in which bail to the accused/applicant was refused on the ground that applicant accused is a hardened/desperate and dangerous criminal and is also convicted in another case whereas factual position is that applicant is not convicted person in the said other case as the Hon'ble Supreme Court of Pakistan has granted the leave to appeal/petition of the applicant in the above case vide order, dated 8-2- 1995. That only sample of the case property was produced before the trial Court where as all the case property was not produced and the market value of the sample is not more than 100 of rupees, hence the case of the present applicant is not covered within the provisions of the Custom Act. Learned counsel referred Bago and 2 others v. The State (1996 P.Cr 11 1818); Mirza Mazhar Ali v.
7. The State (1996 M LD 1879) Zakir Khan and others v. The State (1995 SCMR 1739) Syed Muhammad Shah and another v. The State 1993 SCM R 550; Muhammad Riaz Munna v. The State (1993 SCM R 1321) Abdul Ghani and another v. The State (1994 M LD 862) Sher Ali alias Sheri v. The State (1998 SCM R 190) Malik Muhammad Anwar v. The State (1991 P.Cr U 2335) and Muhammad Siddique v.
8. Muhammad Behram and another (1998 PCr.LJ 358).
9. ' Mr. Syed Tariq Ali, Standing Counsel contended that applicant/accused is involved in drug trafficking, prior to this he was convicted by the learned Special Judge (Customs, Taxation and Anti-Smuggling) N . -W . F . P . , Peshawar viz Case No,62 of 1993, F.I.R. No,46 dated 20-9-1992, State v. Sajid Sharif Randawa and was found guilty, convicted and sentenced to suffer six years R.I. And fine of Rs.2,00,000 under section 156(1)(8) of the Customs Act, 1969 in default of payment of fine he shall further suffer R.I. For one and a half. Years R.I. Vide judgment, dated 31-3-1994. Present applicant/accused preferred appeal before the Learned Peshawar High Court where conviction of the applicant was maintained but his sentence was reduced from 6 years to 3 years R.I. Thereafter applicant/accused preferred Criminal Petition No,63-P of 1994 before their Lordships of the Supreme Court. That the applicant/accused while serving of Flight Lt. With the Pakistan Air Force was arrested by the Customs Authorities on 20-9-1992 while attempting to smuggle narcotics/arms in his private car and his custody was taken over by the Pakistan Air Force on 20th September, 1992 to examine the possibility of trying him under the Pakistan Air Force Act, 1953 in accordance with section 123 of the Pakistan Air Force Act, 1953 but subsequently matter was referred to the Federal Government who decided to dismiss him from the service. The President of Pakistan was also pleased to approve his dismissal. Consequently he was dismissed from services and his physical custody was taken over by the Customs Authorities to proceed against him under the law. That prosecution has examined material witnesses in the case whereas only the evidence of handwriting expert is to be recorded by the trial Court. That present applicant/accused has already filed Special Criminal Review No,13 of 1997 which was admitted for regular hearing- but R&Ps of the case has been summoned by this Court which is lying here since 30-3-1998 and the case is not proceeding. That the applicant himself has not claimed/moved, before the trial Court that he may not be tried by the trial Court as provided under section 549, Cr.P.C. Which provides delivery to Military Authorities of persons liable to be tried by Court Martial. That if applicant is released on bail there is very possibility that he may misuse the concession of bail and abscond away with the result that trial in any case could not be completed.
10. ' It will be in all fairness to mention here that charge was framed by the learned trial Court on 25-11- 1996 thereafter, evidence of the following material witnesses have been recorded Athar Miraj, Abdul Jalil, Mushtaq Ahmed, Allah Wassayo Zubair and Abdul Sattar and the above witnesses have also produced the relevant documents which have been exhibited before the learned trial Court,whereas only evidence of handwriting expert is to be recorded. It would also be pertinent to mention that their Lordships of the Supreme Court while hearing Criminal Petition No,63-P of 1994 granted leave to appeal to the petitioner with the following observations:-- ' "Leave is granted to consider all these questions. However, issue notice to the petitioner and the State as to why the sentence should not be enhanced."
11. ' In view of this state of affairs of the case I would like to discuss case law referred by the learned counsel for the' accused/applicant.
12. ' (1996 PCr.LI 1818). In this matter a Criminal Miscellaneous Application was filed wherein transfer of case by Special Court to Sessions Court was challenged and learned D.B. After considering the aspects of the case observed as follows:-- ' "It was yet to be decided whether case of accused was to be tried by a Special Court or by a Sessions Court and till such decision, they could not be kept in detention for an indefinite period. In view of the inconvenience, injustice and hardship faced by the accused they were admitted to bail by High Court."
13. ' (1996 M LD 1879). In this matter applicant/accused was charged for the Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979 and learned D.B. Of this Court held that since offence with which the accused was charged was not a scheduled offence under the circumstances, Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 has no jurisdiction to proceed with his trial. Trial Court was further direction to return the case for presentation to the case having jurisdiction whereas the accused in the meantime was admitted to interim bail.
14. ' (1995 SCMR 1973); In this case appellants were convicted for an offence under section 365-A/34, P.P.C. By the learned Special Court II, Karachi Suppression of Terrorist Activities. The appeals against the convictions were dismissed. Therefore, appellants approached the Hon'ble Supreme Court, where their appeals were also dismissed. Learned counsel for the accused/applicant have drawn attention of the Court to the observations of their Lordships in this very case to the effect that as per proviso to Articles 38 and 39 of Qanun-eShahadat, confessional statement made to a police office or in presence of a police officer would be inadmissible in evidence unless it leads to discovery of a fact.
15. ' (1993 SCM R 550): In this matter appellants Syed Saeed Muhammad Shah and Khuda Baldish Sheedi were convicted as follows: ' Syed Saeed Muhammad Shah was found guilty for an offence under section 10(3) of Zina (Enforcement of Hudood) Ordinance, 1979 and was sentenced to suffer R.I. For 15 years and 30 stripes. Khuda Bakhsh Sheedi having been found guilty of abetting the offence committed by Saeed Muhammad Shah was convicted for offence under section 10(3) of the Zina Ordinance read with section 109/34, P.P.C. And was sentenced to suffer R.I. For three years.
16. ' The appellants approached the Hon'ble Supreme Court and their Lordships were pleased to set aside their convictions and sentences and appeals were allowed. Learned counsel for the applicant has drawn attention to the observations of their Lordships that statements recorded by police after delay and without explanation are to be ruled out of consideration. Whereas in this very authority their Lordships have further observed that each criminal case has its own peculiar facts and circumstances and it is the question of satisfaction of the Court which depends upon evidence produced by the parties.
17. ' (1993 SCM R 1321): In this matter bail was granted by their Lordship of the Supreme Court mainly on the ground that F.I.R. Was lodged after the delay of nearly 20 days and the witnesses were not named in the F.I.R. And police statements were recorded after 21 days from the date of incident.
18. ' (1994 M LD 862): In this matter a learned Judge of this Court was pleased to grant bail to the applicants on the ground that two prosecution witnesses were examined by the police for the first time after 20 days of the occurrence who had implicated the accused in the commission of the crime. Whereas said witnesses had not explained as to why they did not give the names of the accused and the information given by them regarding the commission of the offence immediately to the complainant.
19. ' (1998 SCM R 190) : In this case their Lordships of the Supreme Court have held that right of accused for bail under third proviso to subsection (1) of section 497, Cr.P.C. Can be defeated on any other ground except the delay mentioned in the relevant clause and the grounds provided in the fourth proviso thereof.
20. ' (1991 PCr.LJ 2335): In this case learned Judge of this Court granted bail to the applicant/accused observing that accused were apprehended on information of Interpole from Holland for exporting heroin in a consignment of dusters and that accused were in jail for more than one year and delay in concluding trial was not attributable to them. Further, that accused were involved in another case but simply for that reason could not be considered to be dangerous or hardened criminals.
21. ' (1998 PCr.LJ 358): In this case their Lordships of the Supreme Court (AJ&K) have observed that trial would be deemed to be concluded only when the statements of all the prosecution witnesses, statement of the accused under section 342, Cr.P.C. And the statements of the defence witnesses, if any have been recorded, and further that while dubbing a person as a hardened or desperate criminal each case has to be decided in view of the material on the record and not on the basis of mere allegations.
22. ' With due respect to the authorities mainly which are decisions by the Superior Courts while appeals were filed against the judgments of the Courts below and in sore cases appeals were allowed because charge-sheets were not filed before the concerned Courts, names of the accused and their witnesses were not mentioned in the F.I.R. whereas in some cases witnesses were examined with delay without plausible, proper conveniencing reasons, whereas in this case Ex.Flight Lt. Of P.A.F. Is involved and according to prosecution allegation while applicant was in active service of P.A.F, wearing the uniform her booked and despatched the alleged wooden boxes from the Railway Station Risalpur O.C. P.A.F. And were to be received as. O.C. At P.A.F. Base Maripur, Karachi. In this case inquiry was held by D.-G. I.S.I. And through detailed investigation prosecution arrested the accused/applicant and submitted charge_sheet before the trial Court where admittedly all the material prosecution witnesses have been examined and only the evidence of hand writing expert is yet to be recorded. Whereas unfortunate aspect of this case is that criminal revision application filed by the applicant bearing No,13 of 1997 was admitted by this Court on 24- 3-1998 with the following observations.
23. ' Mr. Syed Tariq Ali, Standing Counsel very rightly and friendly raises no objection if this revision application is admitted for regular hearing. Contentions raised by the learned counsel for the applicant require consideration.
24. ' Admit. Notice."
25. ' Nowhere in this order it was desired that R&Ps of the case from the learned trial Court may be summoned even then office on their own accord summoned R&Ps which is lying in this Court vide Letter No, 1140, dated 28-3-1998 and the R&Ps was received in this Court on 30-3-1998 with the result that further progress in the case could not be done.
26. ' Admittedly accused/applicant in another case was convicted by the learned Special Judge (Customs and Taxation) Peshawar. The conviction of the applicant in this case was maintained by the learned Peshawar High Court but sentence was reduced from six years R.I. To three years R.I. As mentioned hereinabove, but their lordships of the Hon'ble Supreme Court were pleased to grant leave to consider all these questions. However', notice was ordered to be issued to the petitioner and the State as to why the sentence should not be enhanced.
27. ' The contention of the learned counsel for the applicant that final charge-sheet was not submitted before the learned trial Court, that names of the witnesses does not appear in F.I.R, that any confessional statement if made by the accused before D.-G. I.S.I. Should not be considered and that trial Court has ' not jurisdiction to adjudicate the matter. In my humble opinion all these contentions are misconceived in as much as the crime so committed was committed in such a manner that prosecution no doubt took sufficient time to procure necessary evidence, documents from the concerned railway authorities and the concerned officers of Pakistan Air Force as well as D.-G. I.S.I.
28. Personnel. In this type of crimes naturally at the time of lodging of the.F.I.R. It is practically impossible to either mention the names of the accused of the witnesses till. The investigation takes place and chain of the circumstances is connected so, that culprits may be apprehended. It is also an admitted fact that in another drug trafficking case also accused/applicant stands convicted.
29. The competent Authority in view of the above facts and circumstances even without getting the order of the Court considered it fit to dismiss the applicant from the service of the Pakistan Air Force.
30. ' Nowadays it has been commonly observed that after getting bail and furnishing surety usually in drug trafficking cases accused abscond away with the result that trial before the Trial Courts are unnecessarily handicapped/suspended.
31. ' Advisedly I refrain to dilate upon the points raised, regarding non-service of notice under section 171 of the Customs Act upon the accused, non-production of the property before the trial court and alleged confession made by the accused/applicant before the D.-G., I.S.I. By the learned counsel for the, applicant/accused in detail so that the case of either party may not be prejudiced before the trial Court as the trial is likely to be concluded very soon.
32. ' For the foregoing facts, circumstances, reasons and history of the accused/appellant I find no substance or merits in this bail application which is hereby dismissed.
33. ' However keeping in view the continuous custody of the accused/applicant the learned trial Court is required to expedite the disposal of the case and conclude the trial at least within a period of 4 months from the receipts of the orders.
34. ' The R&Ps of the case bearing No,165 of 1995, State v. Sajid Sharif Randhawa received by this Court on 30-3-1998 may be returned back immediately to the learned trial Court.
35. ' Since R&Ps has been summoned from the learned trial Court. Without specific orders of this Court, explanation of the concerned person dealing with the matter may be called for, so that proper action may be taken against him. The applicant/accused may repeat the bail application before the learned trial Court if the trial is not concluded within the stipulated period if he is so advised.