P L D 1989 KARACHI 93 (PLP)

This application under section 498, Cr.P.C. has been presented on behalf of an accused who is facing trial for an offence under Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979, before the learned Sessions Judge (South) Karachi. The accused was arrested on 16-6-1987 for allegedly possessing 28 Kg. Heroin. He is since then continuously in custody. Application for bail was presented under section 497, Cr.P.C. before the learned trial Court on two grounds, namely, that the accused is aged about 90 years and, secondly, that he has remained in jail for more than one year. The learned trial Court has dismissed the said application by- his impugned order, dated 1-8-1988 with the following observations: "The case against the accused is recovery of 26 Kg. of Heroin, who is Afghan Refugee. The prosecution evidence has been recorded. The statement and (sic) defence if any is to be examined. There is every likelihood that accused who is Afghan Refugee may abscond after getting the bail." Mr. Gul Zaman Khan, learned counsel for the applicant, vehemently urged that the applicant is entitled to be enlarged on bail under third proviso to section 497(1), Cr.P.C. for having remained in custody for over a year. He also urged with vehemence that on account of his old age he is entitled to be given the benefit of being granted bail. He also urged that the alleged recovery of Heroin ,was effect from the house of the accused, which is not a public place and hence he cannot be convicted for the offence with which he is charged. Mr. A.G. Mangi, Additional A.G_ on the contrary, opposed the bail application by contending that the applicant is a foreigner and that he is a desperate and dangerous criminal and hence his case does not fall within the third proviso to section 497 (1) . C r. P C, . He also submitted that he had been seeking adjournments and if the period so spent is taken into consideration, the period of his detention will fall short of one year and hence he would not be entitled to the benefit of the aforesaid proviso 3 to section 497(1), Cr.P.C. I have given due consideration to the submissions made by the learned counsel for the parties and have also gone through the relevant record available with the Addl. A.G. A perusal of the record shows that the applicant had obtained adjournments on four occasions. The total period thus spent or the delay in the trial 'occasioned by an act of the accused applicant comes to 31 days. Even if the said period is excluded, then too it is obvious that he has remained in custody for over a year and hence has become entitled to the, benefit of being enlarged on. bail under the third proviso to section 497(1); Cr.P.C. In so far as the contention of the applicant's being a desperate and dangerous criminal is concerned, there is no iota of evidence available on record and at least none could b-e brought to my notice to hold that contention good. Moreover, the legislature in its own wisdom has not considered it advisable to make any distinction in the application of the above-said 'proviso'. between a 'foreigner' and a , Pakistani national. In this view of the matter, the applicant, in my opinion. cannot be denied the benefit of the third proviso. With regard to the other two above-noted contentions raised by the learned counsel for the applicant, suffice it to observe that since the applicant -is entitled to be granted bail under the aforesaid mandatory provision of law it is not necessary to consider the said grounds and record a finding in respect thereof. Mr. A.G. Mangi, Addl. A.G. presses that the amount of surety should not be less than Rs.5,00,000 looking to the quantity of the Heroin involved in the case and also in appreciation of the fact that the applicant is a foreigner. I, therefore, enlarge the applicant to bail on his furnishing a surety in the sum of Rs.3,00,000 with P.R. bond in the like amount to the satisfaction of the trial Court. M.A.K./Z-69/K Bail granted.