ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Bail Application No.70 of 2009

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ORDER WITH SIGNATURE OF JUDGE

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                        For hearing

 

Date of hearing 23.02.2009.

 

 

            Mr. Raza Hashmi Advocate for the applicant.

            Mr. G.N. Qureshi Federal Counsel.

 

 

Mohammad Ather Saeed J.- This bail application has been filed by the two applicants against the order of the Special Judge-II (CNS) Karachi dated 22.01.2009 in Special Case No.374 of 2008 on the basis of FIR No.82 of 2008 under Section 6/9-C of Control of Narcotics Substance Act, 1997 registered with Police Station Custom, Karachi wherein their bail applications were dismissed.

 

            Brief facts of the case according to the FIR are that the applicants Bushra Shaheen and Azra Shaheen both daughters of Mohammad Afzal holding Pakistani Passport No.JF-5147131 and JR-5144101 respectively were scheduled to travel to Katmandu by PIA Flight No.PK-268 on 24.11.2008. The joint baggage of the applicants comprised of one gray color diplomat brand hard top suitcase, one dark blue Jaffar brand trolley suitcase and one dark blue color Premier brand trolley suitcase and when the above named applicants/passengers were passing the custom counter their joint baggage were examined in presence of two witnesses namely Israr Ahmad and Mansoor-ul-Hassan and upon examination all the three suitcases were apparently found to contain personal belongings of the applicants. However, due to the reasonable suspicion the suitcases were empted of their contents for further examination and when it was found that diplomat brand hard top suitcase was heavier in weight, it was ripped/broken open from which brownish color Heroin powder wrapped in polythene packing found concealed in the false bottom of the suitcase was recovered. The powder was immediately tested with Narcotics Test Kit and found positive and weighed and was found to be of 3.0 Kg. and three representative samples of approximately 05 grams each of the seized heroin were also drawn and sealed under the signatures of the above witnesses and the applicants were arrested and their belongings mentioned in the FIR were also seized by the customs authorities.

 

            I have heard Mr. Raza Hashmi learned counsel for the applicant and Mr. G.N. Qureshi learned Federal Counsel.

 

            The learned counsel for the applicant submitted that the applicants had been framed and no evidence is on record that the suitcase from which the alleged recovery of Heroin was made belonged to the applicants/accused. He submitted that there was no tag on the suitcases and it could have belonged to anybody.

 

Without prejudice to his above arguments he submitted that in the FIR it is mentioned that the three bags were joint baggage of the two applicants, but no mention was made as to which of the bag belonged to which applicant specially the bag from which the Heroin was recovered and, therefore, further enquiry is required to ascertain as to whom these three bags belonged and without such determination it is not possible to foist the crime on the applicants.

 

The learned counsel further submitted that the factual position of the case is not ascertainable as according to the FIR the three suitcases being the joint baggage of the applicants were searched and in the FIR report it is stated that in the initial examination all the three bags were found containing the personal belongings of the applicants. His objection was that, first of all, the personal belongings of the applicants which have been mentioned in the FIR have not been identified item-wise and is not mentioned in the list of description of the seized goods in entry No.5 of the FIR. He further argued that it has not been even mentioned that any personal belongings were recovered from the suitcase from which Heroin was recovered. He argued that further enquiry is needed to correctly ascertain the factual position and, therefore, due to this enquiry not being made the applicants are entitled to bail.

 

The learned counsel further submitted that the Honourable Supreme Court in the case of MUHAMAMD HASHIF Vs. The state reported in PLD 2004 SC 856 has held that unless a representative sample is taken out of each rod which has been seized from the applicant/accused it would be presumed that only the rods from which the sample had been taken was Charas and so far as the remaining rods are concerned in the absence of any sample taken out from them it would not be possible to hold that they were rods of Charas or otherwise. Although the learned counsel submitted that the judgment in this case was against the judgment in earlier case of the Honourable Supreme Court titled ALI MUHAMMAD Vs. THE STATE (PLD 2003 SCMR 54) but stated that in a judgment of a Division bench of this Court authored by me it has been held that where there are two conflicting judgments given by the Honourable Supreme Court then the one beneficial to the accused should be followed and on this principle we had followed the judgment in the case of MUHAMMAD HASHIF quoted supra and had granted bail by holding that at the most they can be convicted under Section 9-B of the Act and they were not covered under the prohibitory clause.

 

The learned counsel also relied on the following judgments:-

 

1.                  MUHAMMAD YAQOOB Vs. The State (1998 P. Cr.L.J. 128)  

2.                  Mst. RAZIA Vs. THE STATE  (2005 P. Cr.L.J. 345 Peshawar)

3.                  Mst. SAKINA BIBI and 2 others Vs. THE STATE  (1998 P. Cr.L.J. 819)

4.                  MUHAMMAD RIAZ Vs. The State  ( 2005 P. Cr.L.J. 305 Peshawar)

5.                  AMIR BUX Vs. THE STATE (2007 P. Cr. L. J. 1019.

 

The learned counsel, therefore, argued that since only 15 grams of Heroin has been sent for chemical examination, therefore, the case falls under Section 9(a) of the Control of Narcotics Substance Act and the maximum punishment for this offence is two years and therefore, he does not fall within the explanation to subsection 497 Cr.P.C. He, therefore, prayed that his bail application may be allowed.

 

The learned Federal Counsel rebutted the arguments of the learned counsel for the applicant that it was not proved that the three suitcases belonged to the applicants. He submitted that the applicants were themselves carrying these suitcases and had provided them to the custom authorities for examination themselves. He submitted that the procedure which is followed at the Airport is that if more than one passenger is traveling then when the goods are produced before the Customs for examination it is not necessary to identify which suitcase belongs to whom and on such examination the contents of such suitcases are considered to be joint property. The learned Federal Counsel further submitted that according to the First Information Report the personal belongings of the applicants alongwith two suitcases which contained only the personal belongings were not seized and, therefore, since only seized goods are mentioned in column No.5 of the FIR, therefore, there was no need to mention these personal belongings. He also submitted that the suitcase No.3 from which the Heroin was allegedly recovered also contained personal belongings but when it was to be ripped open the personal belongings were removed from the suitcase and it was ripped open after being empted of its contents. The learned counsel submitted that, therefore, no further enquiry is needed to ascertain the personal belongings of the applicants or to ascertain as to which suitcase belong to which applicant as the suitcases had been jointly presented by both the applicants for custom examination and they being the real sisters led to the presumption that all the suitcases contained their joint belongings.

 

The learned Federal Counsel then submitted that despite the fact that the entire Heroin was recovered wrapped in one polythene packing but the customs authorities had not only taken the precaution of drawing three representative samples of the drugs from the seized Heroin but also the entire Heroin powder so recovered was instantly tested with Narcotics Test Kit which gave a positive result and this fact is also mentioned in the FIR and have not been challenged by the applicant. Due to both these actions taken by the custom authorities the learned Federal Counsel argued that the parameters prescribed by the Honourable Supreme Court in the case of MUHAMMAD HASHIM quoted supra have been met and as the entire Heroin had been tested on the spot and positive report was indicated and also three representative samples were taken out and sent for chemical examination, therefore, it was not hit by the judgment of the Honourable Supreme Court in the case of MUHAMMAD HASHIM. He also submitted that the applicants were habitual drug smugglers and for this purpose he relied on the interim challan wherein it has been stated that both the accused had twice successfully delivered Heroin powder concealed in bags to their accomplices at Katmandu.

I have examined the case in the light of the arguments of the learned counsel and have carefully perused the records of the case including the impugned order, the FIR, interim challan etc.

The contention of the learned counsel for the applicant that since parameters of the judgment of the Honourable Supreme Court in the case of Muhammad Hashim quoted supra have not been followed and only 15 grams of Heroin out of the alleged seized Heroin of 3.0 kg. were sent for chemical examination, therefore, the case is fully covered by the above judgment of the Honourable Supreme Court and despite the fact that there is a contradictory judgment of the Honourable Supreme Court in the case of ALI MOHAMMAD VS. THE STATE (PLD 2003 SCMR 54) but it has rightly been held by this Court in its unreported judgment passed in Criminal Bail Application No.397 of 2007, the case of MUHAMMAD HASHIM (supra) is to be followed being favourable to the accused, therefore, the maximum charge which can be levied against the applicant is for sponsoring of 15 grams of Heroin, is misconceived because the Honourable Supreme Court has not held that the entire amount of drug has to be sent for chemical examination but has only held that when there were hundred rods of Charas and only one kg. charas was sent without specifying that a sample had been taken out from each rod then there could have been a doubt that whether other 99 rods contained Charas or not. In this case the customs authorities immediately tested the recovered Heroin on Narcotics Test Kit which gave a positive result and they took out three representative samples which means that they extracted these samples from different portions of the Heroin powder and, therefore, I am of the considered opinion that the parameters prescribed by the Honourable Supreme Court have been fulfilled and no adverse inference can be drawn against the respondents and no doubts can be cast that the entire amount of Heroin recovered is any other thing than Heroin.

 

I have also examined the other judgments relied on by the learned counsel. All those cases are distinguishable and have been decided on one or the other factor which is not available in the present case of the applicant.

 

So far as arguments of the learned counsel that no material has been placed on record to establish that the bags belong to the applicants and even if so to which applicant it belonged is not only against the factual position that the applicant without identifying their individual bags  themselves produced the three bags before the custom authorities for examination and the presumption is that once the two real sisters are traveling together the three bags produced by them for examination before the customs authorities represent their joint baggage. I am of the opinion that no further enquiry is needed to establish and substantiate the factual position stated above.

 

The above are the reasons for which after hearing the learned counsel in Court on 23.2.2009 I by my short order dictated in Court rejected the bail application.

 

I may, however, add that the observations in this order are tentative in nature and may not be considered by the trial Court during final hearing and disposal of the case.

 

Although such relief has not been prayed but looking to the fact that the applicants are young women I would direct the trial Court to conduct the hearing of the case on urgent basis and dispose of the case by a speaking order within six months of the date of this order i.e. latest by 31st August, 2009.

 

This criminal bail application is disposed of in the above manner.

 

                                                          J U D G E

Farooq PS/*