ORDER SHEET
IN THE HIGH COURT OF SINDH, AT KARACHI.
Criminal Bail Application No. 1612 of 2015
Date Order with Signature of Judge .
Applicant: Asif Islam s/o. Islam Gul
Through Mr. Abdul Samad, Advocate.
Respondent: The State, through Mr. Shafiq Ahmed, Special Prosecutor ANF.
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Date of hearing: 28.02.2017
Date of order: 28.02.2017
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O R D E R
ZAFAR AHMED RAJPUT, J:- Through instant criminal bail application, applicant/accused Asif Islam s/o. Islam Gul seeks post-arrest bail in Crime No. 62 of 2015, registered at P.S ANF, Muhammad Ali Society, Korangi, Karachi under Sections 6, 9(c), 14 & 15 of CNS Act, 1997 (hereafter the “Act”). His earlier bail application was dismissed by the learned Special Judge No. I, (C.N.S.), Karachi, in Special Case No. 456 of 2015, vide order dated 08.10.2015.
2. Briefly stated facts of the case are that on 22.08.2015 at 1400 hours complainant Inspector Muhammad Muzammil Ahmed of P.S. ANF, Muhammad Ali Society, Korangi, Karachi lodged the aforesaid F.I.R. alleging therein that on 21.08.2015, after receiving information that at QICT Karachi ANF officials have held Container No. ECMU-9231923 through which international smugglers Noor Bahadur, Akhlaque Ahmed and Asif Islam were smuggling huge quantity of heroin powder to Africa by concealing the same in water dispensers while using E-Form of Exporter Tarique Traders, Lahore, he alongwith ANF staff reached QICT Karachi, where in presence of mashirs ASI Afzal Nazeer and PC Rehmatullah, clearing agents of Crescent Agency, Karachi, namely, Hamid Mehmood and Ghous-ul-Haq were called, Hamid Mehmood handed over export documents of aforesaid container i.e. original consignment note, original commercial invoice, E-Form No. SILK-0077866 and undertaking of applicant/accused being owner of the said consignment. In presence of said witnesses complainant chopped seal No. D-8533254 affixed on the said consignment, opened the same and took out articles i.e. 340 water dispensers and 25 washing machines. On search of refrigerators of water dispensers, 43 were found containing heroin powder weighing 2 KGs each (in four separate polythene packets) totaling 86 KGs, out of which 50/50 grams heroin powder (from each polythene packet making 200 grams from each dispenser) were sealed for chemical examination, while rest was separately sealed. Thereafter, the F.I.R. was lodged.
3. The learned counsel for the applicant/accused has mainly contended that the accused is innocent and has falsely been implicated in this case; that as per F.I.R. the ANF police had prior information of holding container containing narcotic but inspite of that no private person was associated as mashir; that there is no previous criminal record of accused; that the alleged narcotic has not been recovered from possession of accused; that there is no direct evidence against the accused; that as per billty of Sindh Frontier Goods Transport Company, filed by him through a statement dated 15.02.2017, the seal number of the container was 472816 while the seal number of container shown in F.I.R. is D8533-254; that accused has made out a fit case of further enquiry; therefore, he is entitled for the concession of the bail.
4. On the other hand, learned Special Prosecutor ANF has vehemently opposed this application on the ground that huge quantity of heroin powder was recovered by ANF from a container owned by the accused, which was being exported to Africa; that the complainant attempted to make the private persons as mashirs but they refused due to fear of narcotic dealers; that the accused has not alleged any enmity with the officials of ANF for implicating him falsely in this case; that the offence carries capital punishment; therefore, the accused is not entitled for the concession of bail.
5. I have given due consideration to the arguments advanced by learned counsel for the accused and learned Special Prosecutor for ANF as well as perused the material available on record.
6. As per the record available with the prosecution it appears that the accused is nominated in the F.I.R. As per shipment documents M/s Tarique Traders, Lahore is the exporter, while M/s ECU-LINE, SARL, G-30, RUEDOES, MAJORETTES, ABID JAN, COTE D’ IVOIRE is the importer and M/s Crescent Agency, Karachi is Clearing Agency. Description of articles have been shown as 340 Water Dispensers and 25 Washing Machines and it is alleged that the accused is the owner of the shipment / consignment No. ECMU-9231923, from which 43 packets of heroin powder weighing 86 Kilograms were recovered from inside 43 refrigerators of water dispensers. As per the statement of clearing agent, namely, Hamid Mehmood, accused Asif Islam sent the export documents of said consignment to him through TCS from Lahore. The shipment documents also includes an “Undertaking” of accused, duly singed by him, declaring that his above consignment was free from any narcotic / contraband drugs and he had bound himself that in the event any contraband or narcotic was found from his consignment, he will hold himself solely responsible for the same. It may be relevant to mention here that the accused is facing charge under Section 6, 9(c), 14 & 15 of the Act and the punishment provided under clause (c) of section 9 of the Act for possessing, importing, exporting or trafficking narcotic drug, psychotropic substance or controlled substance, exceeds from 1 kilogram, is either for death, imprisonment for life or for a term which may extend to fourteen years with fine, which may be up to one million rupees.
7. As regards the arguments of learned counsel for the accused that no private mashir was associated to witness the recovery and the seal number mentioned in the billty of transport company is different than the seal number mentioned in the F.I.R., suffice to say it that association of any private mashir is not the requirement of the Act, while the alleged billty is the document of accused and its genuineness and veracity is required to be proved during inquiry, if the same is produced by the accused in trial.
8. The accused has prima facie been found exporting and trafficking narcotic substance i.e. heroin in huge quantity, which can have devastating effect on the society generally and a threat to economy and honour of the country in international community particularly. From tentative assessment of the evidence, the case of accused does not call for further enquiry as envisaged under sub-section (2) of Section 497 Cr. P.C. I, therefore, dismiss this bail application, accordingly.
9. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the accused on merits
JUDGE
Athar Zai