MUHAMMAD ROSHAN ESSANI, J.--- The facts leading to the present application for bail are that applicant Haji Ramzan is facing trial in Special Case No,105 of 1997 before learned Special Judge, Karachi (West), which is punishable under section 9(c) of Control of Narcotic Substances Act, 1997.
It arose out of F.I.R. No,1 of 1997 of Police Station Jackson, Karachi, which was initially registered under section 3/4 Prohibition (Enforcement of Hadd) Order, 1979.
2. The brief facts of the prosecution case as disclosed in the F.I.R. Lodged by complainant S. H .0. /S. -I. Ali Asghar Shah on 2-1-1997 are reproduced hereinbelow:-- " Today I, S.H.O./S.-I. Ali Asghar Shah alongwith S.-I. Kashif, A.S.-I. Shah, Muhammad, P.C. Faiz Ahmed, Buckle No,2209, P.C. Nasir, Buckle No,4791 were on patrolling in mobile in the area. On spy information reached at a hut near Khan Road, Gulshan, Sikandarabad, Karachi, which was pointed out by the informer. At about 5-45 p.m. Two persons were present in the hut, on seeing me i,e, S.H.O.
Stood up. By strategy/planning and with the help of co-associates we encircled the but and arrested two persons. We checked the but and recovered 8 plastic bags containing 308 kilograms Charas (canabis resin). On enquiry, both persons disclosed their names as Shakil-ur-Rehman son of Abdul Hanan and Nasib Qadir son of Muhammad Qadir. On personal search Rs,300 were recovered from Shakil-ur-Rehman and Rs,200 from Nasib Qadir, which was from the sale of Charas (canabis resin). One bag of Charas weighing 1 kilogram was separately sealed for chemical analysis. Remaining seized property was separately sealed. Both the accused were arrested under section 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 and were brought in mobile alongwith the property at the police station where F.I.R. Was lodged. The recovered property was deposited in Malkhana and matter was entrusted to S.-I. Kashif Nadim for investigation."
3. During the investigation arrested accused Shakil-ur-Rehman and Nasib Qadir were released. On 13-4-1997 applicant/accused was arrested and sent up to stand trial under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979.
4. The applicant/accused was granted bail by the trial Court on 26-8-1997.
5. After the promulgation of Control of Narcotic Substances Act, 1997, the learned trial Judge after hearing the counsel for both the parties recalled the order of grant of bail and remanded the applicants/accused to judicial custody by impugned order, dated 21-9-1999. The charge under Control of Narcotic Substances Act, 1997 was also framed against the applicants/accused by the trial Court.
6. We have heard S.M. Ismail Shah, learned counsel for the applicant/accused and Mr. Habib Ahmed, learned Assistant Advocate-General, Sindh, on behalf of the State. The latter conceded to the grant of bail. We have also perused the material placed on record as well as the police record with the assistance of learned counsel for the parties.
7. The perusal of record shows that during interrogation the accused Shakil-ur-Rehman and Nasib Qadir denied their complicity in the commission of crime. The reason of their presence as disclosed by them was that they had gone to that area in connection with their personal work and were waiting to enquire about an address, when police arrived and they were arrested. The inhabitants of area informed the police that the narcotic belonged to applicant/accused Haji Ramzan co- accused Fateh Muhammad, Nur Muhammad and Haji Halal. They had brought the narcotic in a truck and damped it in order to smu ggle the same abroad. Such report was submitted by the S.H.O. Police Station Jackson District West, Karachi, to the concerned Court and that accused nominated in the F.I.R. Were released and present applicant/accused and co-accused were sent up under charge-sheet to the concerned Court showing them as absconders. On 13-4-1997 present applicant/accused was arrested by the police and on 14-4-1997 he was remanded to judicial custody. On 26-4-1997 applicant/accused was granted bail by the trial Court. The order of the grant of bail was recalled on 21-9-1999 by impugned order in the circumstances stated hereinabove.
8. The record further shows that neighbours namely, P. Ws. Tariq Mehmud and Dr. Samijah fully implicated the applicant/accused and absconding accused in their statements under section 161, Cr.P.C. The trial Court has framed the charge and the case is ripe for recording of evidence by the trial Court.
9. The contention of the learned counsel for the State as well as of learned counsel for the applicant/accused that the persons named in the F.I.R. Were let off and that the present applicant/accused was not nominated in the F.I.R. And that he was sent up on the evidence of two witnesses said to be of the locality necessitates further enquiry and that, therefore, he is entitled to bail, in our view would tantamount to deeper appreciation/assessment of evidence at bail stage. It is well-settled that for the purpose of grant or refusal of bail only tentative assessment is to be made and deeper appreciation or evaluation of evidence is not warranted by law.
10. As per prosecution case, a huge quantity, i,e, 308 kilograms of Charas (canabis resin) was brought and dumped by the applicant/accused and his companion accused for smuggling abroad. The report of Chemical Analyser is positive. The offence under section 9(c) of Control of Narcotic Substances Act, 1997 is punishable with death or imprisonment for life and fine.
11. The contention of the learned counsel for applicant/accused that the proceedings before trial Court are coram non judice has also no force.
12. Section 50(ii) of Control of Narcotic Substances Act, 1997, provides that after the promulgation of the said Act all cases stood transferred to the respective special Courts comprising of Sessions Judges or Additional Sessions Judges and they were only competent to take cognizance in such cases. Thus, the said Act would operate retrospectively. In the circumstances, therefore, the learned Special Judge/Sessions Judge was not devoid of jurisdiction to proceed with this case.
13. The learned A.A.-G. Mr. Habib Ahmed, urged that direction may be issued by this Court to the trial Court that the accused named in the F.I.R. Be joined as co-accused in this case. We are not called upon to pass such order in a matter like this at this stage.
14. While deciding a bail application this Court cannot issue such a direction. If the trial Court upon the evidence brought on record by the parties comes to a just conclusion that the accused, who were let off during the course of investigation or thereafter by prosecution under section 169, Cr.P.C.
They could be legally joined as co-accused by the trial Court. This Court cannot embark upon the powers/functions of the trial Court at this stage in a bail matter.
15. Consequently, looking towards the peculiar facts and circumstances of the case, we do not agree with the submissions of the learned counsel or the applicant/accused as well as learned A.A.-G. Mr. Habib Ahmed, who appeared on behalf of the State that this was a fit case for grant of bail.
16. The authorities in the cases of Tariq Bashir and others v. The State PLD 1995 SC 34 and Amir v.
The State PLD 1972 SC 277, cited by the learned counsel for the applicant/accused in support of his arguments advanced before us, are distinguishable from the facts and circumstances of the present case and they are of no help to the applicant/accused.
17. Resultantly, this bail application stands dismissed. However, the trial Court is directed to dispose of the main case according to law, as early as possible.
18. The observations made hereinabove are purely tentative in nature and the learned trial Court is free to arrive at its own independent conclusion while deciding the main case and it shall not be influenced by whatever is stated hereinabove.