2017 P Cr (PLP)

RASHEED AHMED SOOMRO, J.

Through instant post-arrest bail application, applicant, namely, Sabar Shah son of Haybat Shah seeks bail in Crime FIR No. 12 of 2016, registered under sections 6/9-B, C.N.S. Act, 1997 at Police Station Customs, Karachi. His bail application was declined by the learned Special Judge, CNS-II, Karachi, vide order dated 08.09.2016.

2. Relevant facts of the prosecution case are that on the intervening night of 22nd/23rd June, 2016, while the complainant was present between 2200 to 0800 hours at International Departure Hall, Jinnah International Airport, Karachi and attending to the baggage examination/clearance of outgoing passengers through various flights. At about 2345 hours, a passenger was intercepted later on identified as Sabar Shah son of Haybat Shah, holding Pakistani Passport No.NP5142362 (New) and NP5142361 (old) and CNIC No. 56503-1035236-3 who was leaving for Muscat by PIA Flight No.PK

225. The passenger named above was diverted to Customs Examination counter where he was asked to declare if he was carrying any contraband goods viz: narcotics or currency etc. in his baggage or on his person to which, he denied. Being dissatisfied with the passenger's declaration, his baggage comprising of one brown color Trolley suit case was examined in presence of two witnesses namely Muhammad Akbar and Muhammad Riaz (Jamadars Customs). The examination of the suit case found to contain his personal wearing. However, owing to strong suspicion, his brown color shoes worn by the passenger were also subjected to detailed examination which yielded the recovery of 2 polythene packets (one from each shoe), which were cleverly concealed in the inner sole of the shoes. The polythene packets were further opened and recovered 560 grams. (net) hashish there from. There hashish was instantly tested with the Narco Testing Kit which gave positive inference of hashish. Therefore, the contraband hashish so recovered was seized along with containers (pair of brown color shoes and two polythene bags) and traveling documents of the accused passenger under the cover of a mashirnama prepared on the spot. Three representative samples from the bulk of seized hashish were also drawn and sealed under signatures of the mashirs. Accused passenger Sabar Shah was arrested and served with a notice of arrest. FIR was lodged accordingly.

3. Learned counsel for applicant contended that the alleged incident had taken place on 22.06.2016 at 2345 hours but the FIR was lodged on 23.06.2016 at 0900 hours with the delay of nine hours. Learned counsel for applicant next contended that there is contradiction in the letter No.DEC-12/2016-JIAP, dated 25.02.2016, addressed to the Chief Drug Control and Traditional Medicines Centre, National Institute of Health, Islamabad, wherein quantity of Hashish was shown 600 grams while as per the FIR and charge-sheet, the quantity of the Hashish has been shown as 560 grams, which creates serious doubt in the prosecution story. Learned counsel for applicant next contended that the alleged incident had taken place on 22.06.2016 at 2345 hours while in the letter addressed to Chief Drug Control and Traditional Medicines Centre, National Institute of Health, Islamabad, the date was mentioned as 22.02.2016 for four months and three days prior to alleged incident, which also creates serious doubt in the prosecution story. He next contended that the prosecution has failed to associate any independent/private witness at the time of alleged search and recovery. He lastly argued that the alleged offence does not fall within the prohibitory clause of section 497, Cr.P.C., therefore, he prayed for grant of bail. Learned counsel for applicant has relied upon the cases of Muhammad Ullah v. The State (2009 SCMR 954), Shahid v. The State (2013 YLR 1840), Aachar v. The State (2010 YLR 794), Muhammad Saeed Khan and others v. The State (2016 PCr.LJ 730), Sohrab v. The State (2013 YLR 786) and Muhammad Bilal v. The State (2009 MLD 335).

4. On the other hand, learned Special Prosecutor Customs vehemently opposed the grant of bail on the ground that Hashish/Charas weighing 560 grams were recovered from the possession of present applicant at International Departure Hall, Jinnah International Airport, Karachi and there is no enmity between the accused and customs officials. Learned Special Prosecutor has relied upon the cases of Afzaal Ahmed v. The State (2003 SCMR 573) and Saeed Ahmed v. The State (2003 PCr.LJ 821).

5. Heard learned counsel for applicant, learned Special Prosecutor CNF and perused the material available on record, which reveals that the alleged incident was occurred on 22.06.2016 at 2345 hours at JIAP, Karachi while FIR was lodged on 23.06.2016 at 0900 hours at the Drugs Enforcement Cell, Jinnah International Airport, Karachi but no plausible explanation has been furnished for causing such delay in the lodging of FIR. In case of Jamaluddin alias Zubair Khan v. The State (2012 SCMR 573), the Hon'ble Supreme Court has observed as under:- "Court while hearing petition for bail was kept in view the maximum sentence provided by statute but the one which was likely to be entailed in the facts and circumstances of the case Accused had been in jail for 3 months, yet commencement of his trial let alone its conclusion was not in sight, had also tilted scales of justice in favour of bail rather than jail involvement of accused in two other cases of similar nature would not come in the way of petitioner, so long as there was nothing on the record to show that accused had been convicted in any one of those. Petition for leave to appeal was converted into appeal and accused was released on bail."

6. The offence under section 9-B, C.N.S. Act, 1997 is punishable up to seven years, which does not fall within the ambit of restraining clause of section 497, Cr.P.C. Considering the peculiar circumstances of instant case, there is no probability of accused being convicted with maximum sentence provided in the schedule.

7. As per record, after completion of investigation, challan has been submitted and applicant is no more required further for investigation. PWs are officials, hence there is no apprehension of tampering with the prosecution evidence, if applicant is enlarged on bail, thus his further detention will not serve any useful purpose as the basic principle of criminal justice is bail not jail.

8. Considering the above facts and circumstances, applicant has succeeded to make out a case for grant of bail on the ground of further inquiry as contemplated in section 497(2), Cr.P.C. Consequently, applicant, namely, Sabar Shah is admitted to post arrest bail upon furnishing a solvent surety in the sum of Rs.200,000/- with PR Bonds in the like amount to the satisfaction of the learned trial Court.

9. The applicant is directed to deposit his passport before the trial Court. The observations made supra are tentative in nature and the learned trial Court shall decide the case strictly on merits. JK/S-1/Sindh Bail granted.