2012 PLP 1521 (MLD)

AZMATULLAH MALIK, J.

The petitioner Gul Anwar son of Said Gul r/o Hassan Ghari P.O. Sakhi Cheshma, District Peshawar seeks his release on bail in case F.I.R. No.64 dated 22-9-2011, under sections 9C CNSA, 1997 of Police Station ANF, Peshawar.

2. On receipt of information to the High ups of ANF Authorities to the effect that narcotics smuggler Muhammad Shafique and Muhammad Rafi through their agent Gul Anwar has brought the narcotics to customs dry port Peshawar concealed in the cots and other luggage in order to smuggle the same to Australia. On this information Mushtaq Ahmad S.-I. of Police Station of ANF along with other officials reached custom dry port Peshawar along with Superintendent Customs Amanullah and inquired about the consignment. A person was found present with the luggage who was overpowered and on query disclosed his name as Gul Anwar son of Said Gul. There at the spot cursory interrogation was made during which Anwar admitted the concealment of heroin in the cots. Sequel to this information cots was broken/opened and from the said cots seven KG of heroin powder was recovered. The narcotics recovered from the cots were taken into possession by the complainant on further interrogation Gul Anwar disclosed that the consignment belongs to Muhammad Shafique and Muhammad Shafi. The complainant separated parcels for chemical analysis while rest of the lot was also sealed into another parcel. On the report of complainant present case was registered.

3. Learned counsel for the petitioner mainly argued that the petitioner is custom clearing agent and neither he is exporter nor the owner of cots from which the alleged recovery of contraband was made. That the job of petitioner was only to facilitate the transaction of exporters being a custom clearing agent and he is doing this job for the last 9/10 years. He also argued that from the entire investigation nothing was brought on record to show the involvement of petitioner with the actual exporters. He further argued that Muhammad Rafi Manager of Pak Afghan Trading has also given undertaking stating therein that the consignment in question does not contain any antique, narcotics, drugs explosive or any such item in case the same is found he would be responsible for it. The goods were being legally exported to Australia by the Afghan Trading Import and Export Company under valid documents. The accused/petitioner having no concern with the stuff recovered from the concealed area of the cots from a cavities secretly made therein and it was not the petitioner who claimed the ownership of said cots, his case therefore falls under subsection (2) of section 497, Cr.P.C. entitling petitioner to the concession of bail. In support of his argument he placed reliance upon the judgment of this Court titled "Abdul Jalil v. The State Criminal Miscellaneous No.1274 of 2009 and Criminal Miscellaneous No.1290 of 2003 titled Fazal Badshah v. The State where bail was granted to the custom clearing agent in a similar circumstances.

4. Learned counsel appearing on behalf of ANF vehemently opposed the grant of bail to the petitioner on the ground that accused is directly charged in the F.I.R. and in his presence narcotics was recovered from the cots being exported to Australia. He further argued that the presence of petitioner at the time of recovery of narcotics shows his conscious knowledge about the concealment of heroin in the cots. He lastly argued that accused in his statement recorded under section 161, Cr.P.C. admitted his crime, therefore, he does not deserve the concession of bail.

5. I have heard the arguments of the counsel for the parties and have gone through the record.

6. No doubt accused/petitioner was apprehended by the ANF authority by the time when the consignment was being loaded in the container for onward export to Australia and from the consignment which consist of cots and other luggage heroin concealed in the secret portion of the cots like arm was also recovered, but the perusal of record would show that petitioner is a custom clearing agent who facilitated the export of cots to Australia to the Pak Afghan Trade Company on valid documents including the undertaking of the Manager. The I.O. of the case vide recovery memo. took into his possession the documents pertaining to export of the cots through ship from one Muhammad Aftab Cargo Agency of ACE Office situated in Hussain Plaza Khyber Bazar Peshawar. Further the office of Pak Afghan Trading Import Export situated in Hussain Plaza Room No. 48 Peshawar was also searched by breaking the locks of the office and recovered many documents there from. The prosecution further failed to establish the requisite conscious knowledge of the petitioner about the presence of narcotics in the cots because the stuff was so tactfully concealed which was not open to visual inspection. There is also no evidence whatsoever to show that the petitioner was aware that the cots which contained heroin.

7. Even if the arguments of learned counsel for the ANF is accepted that petitioner was present at the time of alleged recovery this itself would not disentitle accused/petitioner to the concession of bail because mere presence without knowledge of the concealment of narcotics in the cots does not automatically makes the accused responsible for the alleged recovery.

8. From the perusal of record and discussion made above I am inclined to admit the petitioner to bail as in the given circumstances the case of petitioner calls for further inquiry thus entitling him to the concession of bail. The petitioner being only a clearing agent is admitted to bail provided he furnishes bail bond to the tune of Rs.5,00,000 with two sureties each in the like amount to the satisfaction of Alaqa/Judicial Magistrate who shall see that the sureties are local, reliable and men of means. M.W.A./214/P Bail granted.