1. ' The learned Special Judge, Malir, Karachi rejected the bail application of applicant on 30-7-1999 mentioning as under,- "Having heard the arguments of the learned counsel for the applicant/accused and learned S.P.P.
2. For the State, in this case there is prima facie strong evidence showing the involvement of the accused Shahid Hussain as being the Examining Officer of the consignment, in which 800 Kilograms of Hashish was being transported by Messrs Amir Enterprises which was recovered at Toronto Airport Canada, the shipping bill and the other documents, clearing the consignment at the Airport, which consignment was examined and cleared by the applicant/accused Shahid Hussain, I find that he is not entitled to the concession of bail at this stage as under section 9(c) of the Control of Narcotic Substances Act, 1997, the punishment provided for such an offence is death or imprisonment for life, and, therefore, section 51 as held in the citation relied upon by the learned Prosecutor, of the Honourable Supreme Court, section 51 of the Act bars grant of bail under section 497, Cr.P.C. To the accused. I accordingly, with due respect to the case-law cited by the learned counsel for the applicant/ accused, which case-law is based on different facts and circumstances than those in the present case and hence are not applicable to the facts and circumstances of the present case, further, that section 14 of the Act provides as under-- ' No one shall, within or outside Pakistan, participate in, associate or conspire to commit, attempt to commit, aid abet, facilitate, incite, induce or counsel the commission of an offence punishable under this Act.
3. ' Explanation. For the purpose of this section, a person shall deem to have associated, conspired, aided, abetted, facilitated, incited, induced or counseled an offence within the meaning of this station if he does anything in a place beyond Pakistan which--
(a) would constitute an offence as if committed within Pakistan; or
(b) under the laws of such place, is an offence relating to narcotic drug, psychotropic substance or controlled substance having all the legal or analogous conditions required to constitute it as an offence punishable under this Act'.
4. ' Further the punishment for an offence committed under section 14 of the Act is provided as under:-- ' and notwithstanding anything contained in section 116 of the Pakistan Penal Code, (Act XLV of 1860), be punishable with punishment provided for the offence or such lesser punishment as may be awarded by the Court'.
5. ' Therefore, I find that considering the evidence on record prima facie involvement of the applicant/accused Shahid Hussain in the above case has been established. I, therefore, find no merit in this bail application and reject the same."
6. ' The learned Advocates for the applicant have stated that by the investigation conducted so far it is established that Agha Muhammad Aftab, Sikandar, Radia, and Muhammad Shafi acted jointly, with common intention and established a fake firm namely Messrs Amir Enterprises, 40 Al-Amna Plaza, Ground Floor, M.A. Jinnah Road, Karachi and booked one consignment of 30 cartons through Muhammad Shafi, Proprietor of Swift Cargo, who issued Airway Bill No,20-156-4550 for Lufthansa Flight No,LH-635, dated 8-1-1997. The said consignment was handled by Messrs Adnan Enterprises Clearing Agents who presented shipping bill with other relevant documents which was registered with AFU Customs, Karachi Airport vide Machine No,131673, dated 7-2-1997. On the contrary, the relevant shipping bill carries Machine No,131673, dated 7-1-1997. This discrepancy shows that the relevant shipping bill was never filed in the Registration Section of AFU. In the Registration Section, there were two clerks and one sepoy posted for this purpose. The said machine number was entered in the Customs Register on 7-2-1997 whereas the shipping bills were assigned the same number on 7-1-1997 as indicated in the F.I.R. This clearly established the bad intention of the consignee, clearing agent and the concerned clerks. The learned counsel further submitted that it is significant to point out that on 8-1-1997 at the entry gate at AFU the Customs Officials stamped the shipping bills (passed in full consignment) and entered the same in the official record against Shipping Bill No,131678 which proves that no entry regarding the consignment of Shipping Bill No,131673 has been made. It cannot be assumed that this has been done inadvertently. The stamp "shipped in full" in the Shipping Bill No,131673 is a manipulation otherwise the goods were entered against Shipping Bill No,131678 and the said shipping bill has been removed from the official record with the connivance of all beneficiaries including the officials who were posted in the Registration Section and at the entry gate AFU. Learned counsel also contended that during investigation it was established that the goods of Shipping Bill No,131573 was never entered at the entry gate AFU and also exit gate from where the goods are loaded on the Aircraft. The question of loading the said cargo on the Aircraft and its subsequent interception at Toronto Airport clearly established that the said goods were never examined by the applicant and the same were loaded on the Airport with the connivance of Airline Staff and the Customs Officer who allowed loading of the said goods on the Aircraft. It has also been argued that the procedure for freight handling in the New Cargo Complex at Karachi Airport is governed by Standing Order No,4 of 1990, dated 30-6-1990 wherein the duties and responsibilities of the officials of Cutoms and Airline Staff are clearly indicated so thai in case of any fraudulent export the responsibility may be fixed independently on each official irrespective of the fact to which department he belongs. In the subject consignment, the officials of Customs posted at Entry Gate and Exit Gate and the official of Airline Staff who loaded the goods on the Aircraft have not performed their duties according to the procedure laid down in the Standing Order No,4 of 1990 and the applicant cannot be held responsible in any way, as in the subject consignment the goods were never brought in the examination hall and subsequently, transferred to Custom Cleared Area. The official record revealed that a consignment of exported cargo has been brought at entry gate with Shipping Bill No,131678, Customs Official allowed loading and entered the particulars of Shipping Bill No,131678 which has no relevancy with the seized goods at Toronto Airport which was loaded on the Aircraft against Shipping Bill No,131673 of 30 cartons.
7. ' The learned S.P.P. Has opposed the grant of bail to the applicant because investigation has revealed his complicity with the alleged crime. The Investigating Authority had sent the signatures on the shipping bill and other documents of the transaction and consignment of the Customs Officers to the Handwriting Expert, F.I.A. Headquarters, Islamabad, for report and the expert has given his opinion. On the basis of his opinion, applicant Shahid Hussain, who was the Examining Officer was implicated and he has been sent up before Court. The offence attracts death sentence.
8. Reliance has been placed on order of Honourable Supreme Court bearing Criminal Petition No,53/K of 1998, the relevant in para.12 is as under:- "We are, therefore, inclined to hold that in view of the abovequoted subsection (1) of section 51 read with clauses (b) and (c) of section 9 of the Act, the third proviso to subsection (1) to section 497, Cr.P.C. Cannot be pressed into service in a case in which the quantity of narcotic drug or psychotropic substance or controlled substance exceeds one kilogram and which may entail, inter alia, death sentence."
9. ' The learned counsel for the applicant have relied on unreported order of this Court in Criminal Bail No,1029 of 1998 wherein similar arguments were advanced by the learned S.P.P. The relevant portion of the order is as under:-- "Mr. Shoaib Ashraf placing reliance on the judgment of the Supreme Court, dated 9-4-1999 passed in State through Deputy Director, A.N.F. v. Mobin Khan Criminal Petition No,53/K of 1998 submitted that by the aforesaid judgment, the Supreme Court had pronounced that the provisions of section 497, Cr.P.C. Would have no application for grant of bail to the accused persons charged with violation of any of the provisions of the Control of Narcotic Substances Act in view of the provisions of section 76 which gives overriding effect to the Act on other laws and section 51(1) of the Act which bars the grant of bail to the accused persons dealing in offences with narcotic substances punishable with death. A perusal of the aforesaid judgment, does not substantiate the contentions made by Mr. Shoaib Ashraf and the issue involved in the aforesaid judgment was whether the benefit of the IIIrd proviso to section 497(1), Cr.P.C. Had been excluded by section 51(1) of the Act, which the Supreme Court decided in the negative and held that if all the requirements of clause
(b) of the IIIrd proviso to section 497 were made out then there would be no bar to the enlargement of an accused facing trial of an offence under the Act, punishable with death."
10. We agree with the submission of learned S.P.P. But in this case the only piece of evidence with the prosecution is the report of the Handwriting Expert. Assuming that the report is absolutely correct but even then there is ' scope for examining the question of mens rea. The question whether he signed the documents in routine performance of his official duties or he was mixed up with the main accused who had despatched the disputed consignment. If he was mixed up with the main accused and there is evidence to show this, in that case he is not entitled to bail, but in this case there exists possibility that he may have cleared the disputed consignment without knowing the contents and in that case the benefit of bail can be given to him. As there is no such evidence to show his complicity with the main accused, we grant bail to applicant Shahid Hussain subject to furnishing of security in the sum of Rs,2,00,000 (two Lacs only) and P.R. Bond in the like amount to the satisfaction of Additional Registrar of this Court. However, we leave it to the trial Court to cancel his bail if evidence is produced, excepting the Handwriting Expert's Report, to show his complicity with the main accused.