' Applicant Syed Asif Ali is facing trial for offences under sections 6 to 9, 12, 14, 15 of the Control of Narcotic Substances Act, 1997 read with sections 120-B, 471, 34, P.P.C. (F.I.R. No,6 of 1998 Police Station A.N.F., P.S.1, Malir, Karachi), before the Special Court (Anti-Narcotics), Malir.
2. Brief facts of the prosecution case as per the F.I.R. Registered on 17-4-1998 are reproduced hereunder:-- ' "On receipt of Letter K.C.A./222/British DLO, dated 14-3-1998 from H.D./Hq. A.N.F. Karachi with the direction to supervise the control delivery. The undersigned Inspector during custom examination of consignment at AFU/Kar on 15-4-1998 seized one box from the consignment of 183 packs exported by Messrs Marvelous Int. Traders M/4, Mezzanine floor, Dada Garden Jamaluddin Afghani Road, Karachi, consigned to Messrs Choudhry & Brothers Fresh Fruit and Vegetable Unit-10, Heathrow Int. Trade, East Green Lane Honsio, Middle Sex, London Phone Nos.0181-5778033/Fax; 0181- 575150, vide shipping Bill No,187024, dated 14-4-1998/Airway Bill No,618 KHI 4968-0013, dated 15-4- 1998. The box was opened in the presence of P.Ws. Namely Inspector Mehmood Baig, (2) H.C.
Muhammad Aslam, (3) Muhammad Shoaib and found containing 10 slabs of Hashish weighing 10 Kgs in steel box packed in carton. The samples of 10 grams from each slab were drawn, samples and case property drug peas seized. On 17-4-1998 another Letter No,KCA-222 British Dlo was received from RD. ANF H.Q. Karachi to the effect to initiate legal action against the culprits as H.M.
Customs London seized 530-Kgs. Of Hashish of the abovesaid consignment. On enquiry it revealed that (1) Fahim Ahmed alias Zaheer Muhammad, his uncle (2) Wakeel Ahmed Siddique (3)
Muhammad Hanif Khan Cargo Assistant Supervisor of P.I.A., (4) Saeed (5) Masood alias Billa ExP.I.A.
Employee and others exporters and members of Drug Syndicate are fully involved in the illicit export of Hashish consignment to U.K. London under the guise of fruit and vegetables exporters.
' From the abovementioned facts a case is made out against the above accused persons under sections 6/7, 8/14, 9/15 of C.N.S.A./97 read with 120(B) and 34, P.P.C. Accordingly case is registered and investigation is taken up by the undersigned.
(Sd.) 174-1998 (Inspector)/Investigating Officer
3. The charge in the case has been framed against the applicant and the co-accused, and one witness has been examined by the prosecution. The charge relates to export of about 540 Kgs. Of Charas out of which 10 Kgs. Were secured at Karachi International Airport, while the rest quantity of consignment was secured at London by H.M. Customs.
4. We have heard Mr. I.A. Hashmi, learned counsel for the applicant and Mr. Shoaib M. Ashraf, Special Prosecutor for the State/A.N.F. And have also perused the record. It was argued by Mr. Hashmi that the applicant was innocent, was falsely implicated and there was no direct or indirect evidence against him with the prosecution. It was further argued that on 15-3-1999 a party headed by P.W. Mehmood Baig, Assistant Director, A.N.F. Came to the residence of the applicant, took him away and falsely implicated him for allegedly possessing 10 Kgs. Of Hashish in which case the applicant stands released on bail. It was lastly urged by the learned counsel that the name of the applicant is neither mentioned in the F.I.R. Nor in the interim challan but he has been shown as an absconding accused in the subsequent/final challan and in any case the case against the applicant required further inquiry as contemplated under section 497(2), Cr.P.C. Reliance was placed upon the case reported as Gulzaman v. The State 1999 SCM R 1271.
5. On the other hand Mr. Shoaib M. Ashraf, learned Special Prosecutor contended that the applicant was connected with the gang of co-accused engaged in the illicit business of smuggling narcotics in the name and style of Messrs Marvelous International Traders, Karachi and Messrs Chaudhry & Brothers, doing the same business in the fake name of fresh fruit and vegetable dealers at Middle Sex, London. It was further argued that the applicant and other co-accused shown absconders in the challan were the abettors/conspirators in the abovementioned crime and bail to co-accused Vakil Ahmed has already been rejected by this Court on merits vide order, dated 11-1-1999. While forcefully opposing the bail to the applicant the Special Prosecutor placed his reliance upon the cases reported as Mehboobur-Rehman v. The State 2000 PCr.LJ 569 and The State v Mobin Khan 2000 SCM R 299.
6. In the case of Gulzaman, it has been observed that applicability of sections 496, 497 and 498 of the Cr.P.C. Is not totally barred in respect of matter under the Control of Narcotic Substances Act but the only prohibition is on the grant of bail to the person accused of offence punishable with death, while in other case under the Act bail may be allowed in suitable cases. Thus, the prohibition in respect of bail to a person charged with an offence relating to narcotics, punishable with death, has not been declared ineffective in this case. In the case of The State v. Mobin Khan also the Supreme Court has recognized the prohibition in respect of grant of bail in the narcotic cases where the offence is punishable with death.
7. In the case Mehboob-ur-Rehman v. The State, a Division Bench of this Court rejected the bail plea of the applicant-accused, holding that there was a bar under section 51(1) under the Control of Narcotic Substances Act to grant bail to an accused if the trial Court has framed the charge against him for an offence under the Act, which is punishable with death.
8. The charge against the applicant in this case, punishable with sentence of death has been framed already and one prosecution witness is examined. The order passed in the case of Mehboob-ur-Rehman was challenged before the Honourable Supreme Court in Criminal Petition No,43 of 2000, wherein the Honourable Supreme Court while declining to interfere with the said order of this Court refused leave to appeal. To us, there are no reasons/material to take a different view than the one taken by this Court.
9. In view of the above, the bail application is dismissed. We would, however, direct the learned trial Court to conclude the trial as early as possible.