ORDER SHEET
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Date Order
with signature of Judge
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DATE OF HEARING 18.07.2014
M/s.
Syed Mehmood Alam Rizvi, Ashiq Raza and Zakir Laghari Advocates for the
Applicant.
Mr.
Umer Siyal Special Prosecutor ANF.
SYED HASAN AZHAR RIZVI J; By this order I intend to dispose of instant Criminal
Bail Application filed by the Applicant Abdullah Umer son of Muhammad Umer.
2. The
brief facts as narrated in the FIR are that on spy information that a foreigner
on the E Form of Popular Corporation is smuggling the Heroin in huge quantity
to abroad through container No.PCIU-1615231 importer whereof is Richard
Enterprises, Lagos Nigeria. On such information as per directives of higher
officers of ANF aforesaid container was made hold for checking and it was opened
by cutting the seal No.S0748415 then marble tiles, Habib Cooking Oil, Energy
saver bulbs and everyday powder milk and two room refrigerators were recovered
and on checking all tins of Habib Cooking Oil by cutting being considered as
per suspected, so from 24 tins, heroin powder lying in plastic shopper was
recovered total weighing 52.800 kilograms, hence the present FIR was
registered.
3. Complainant
Inspector Muhammad Afzal conducted investigation of the case and filed interim
report on 22.04.2014 and subsequently filed final report on 07.05.2014 both under
Section 173 Cr.P.C. In both reports Investigating Officer had exonerated co-accused
Shoaib Sultan son of Sultan Ahmed under section 169 Cr.P.C., which was
disapproved by the Trial Court as per orders dated 22.04.2014 and 07.05.2014.
Applicant and co-accused Shoaib Sultan both filed post arrest bail applications
before the Trial Court and the Trial Court by order dated 15.05.2014 rejected
both the bail applications. Co-accused Shoaib Sultan filed Bail Application
No.794/2014 in this Court and the same was dismissed on 23.05.2014. On
17.06.2014 co-accused Shoaib Sultan filed another bail application bearing
No.1016/2014 and office raised objections on the maintainability of the second
bail application of the co-accused. The learned Counsel for co-accused in Bail
Application No.1016/2014 on 02.07.2014 submitted that subsequent bail
application has been moved as new grounds have been surfaced. In view of dicta
laid down in the case of Jamil A. Durrani Vs. The State (PLD 2003 Karachi 393)
subsequent bail application is maintainable. Aforementioned bail application of
co-accused Shoaib Sultan was heard on 07.07.2014 by another Bench of this Court
and he was granted interim post arrest bail. Present bail application was also
fixed on the same date but the same could not reach for hearing.
4. Learned
Counsel for the Applicant submits that applicant is innocent and has been falsely
implicated in the present case due to malafides and ulterior motives as the
Applicant failed to fulfil illegal demand of the Investigating Officer. He
further contended that Applicant is an old aged person having age of 65 years
and doing business of Marble and owns company in the name of M/s New Onex
Marble. Co-accused Richard Duru had purchased marble tiles from the Applicant
for exporting to Nigeria. As per learned Counsel the subject shipment
comprising of marble tiles, Habib Cooking Oil, Energy saver bulbs and everyday
powder milk and two room refrigerators were being exported in the name of
Popular Corporation owned by the co-accused Shoaib Sultan when on spy
information ANF officials contacted co-accused Shoaib Sultan and the present
Applicant, they both admitted before the ANF officials that E Form in respect
of subject shipment was handed over to the co-accused Richard Duru by them. He
further contended that when the ANF officials approached with the Applicant and
co-accused Shoaib Sultan they both facilitated and cooperated with the ANF
officials in locating co-accused Richard Duru a Nigerian national, who was
later on intercepted at Jinnah International Airport Karachi in presence of the
Applicant and co-accused Shoaib Sultan. The ANF officials in company of the
accused persons proceeded to Seaport and after obtaining export documents of
the subject shipment from the Clearing Agent opened the container and found
52.800 kilograms heroin after cutting 24 tins out of 1020 tins of cooking oil.
All the accused persons were arrested by ANF after preparation of mashirnama and
FIR was registered on 07.04.2014. Learned Counsel further submitted that ANF
officials after about 08 days of the incident recorded statement under Section
161 Cr.P.C. of the Truck driver Hameed Gul on 15.04.2014 who supported the
version of the Applicant that the Applicant was not present at the time of
loading of 24 tins of cooking oil from which the heroin was recovered. Learned
Counsel further submitted that this fact has already been mentioned in the
interim charge-sheet submitted by the Investigating Officer, which is enclosed
as Annexure “B/4” at page-31 and mentioned name of the person as Yousuf
Nigerian National, who delivered 24 cooking oil tins to the co-accused Richard
Duru at Cant Railway station Karachi, which were loaded in his mazda truck as
stated above. Learned Counsel for the Applicant urged that driver Hameed Gul
has not stated in his statement recorded under section 161 Cr.P.C. that the
present Applicant and co-accused Shoaib Gul were present at the time of loading
of 24 tins of cooking oil at Cant Railway Station Karachi. He further submitted
that heroin powder weighing 52.800 kilograms was recovered from the subject
container in 24 tins of Habib Cooking Oil. AS per learned counsel for the
Applicant this fact reveals that the Applicant had no conscious and knowledge
of availability of 52.800 kilograms heroin recovered from the shipment.
Moreover, the Applicant has no concern with the business of cooking oil as he
is doing business of marble tiles and as such case against the Applicant is of
further inquiry. Learned Counsel further stated that the case of the Applicant is
on better footings than the case of co-accused Shaoib Sultan, who has already
been granted interim post arrest bail by this Court on 07.07.2014, as referred
to above, therefore, Applicant is also entitled for same concession on the basis
of rule of consistency. Learned Counsel has placed reliance upon 2012 P.Cr.L.J.
235 (Mir Iftikhar Ahmed versus the State), 2012 MLD 1521 (Gul Anwar versus the
State), 2011 SCMR 863 (The State through DG ANF versus Muhammad Saleem Khan)
and PLD 2003 Karachi 393 (Jamila Durrani versus the State).
5. Mr.
Umer Siyal learned Special Prosecutor ANF have vehemently opposed the grant of
bail on the ground that huge quantity of
the heroin weighing 52.800 kilograms has been recovered from the container. As
per material available with the prosecution on the recommendation of the
Applicant, the co-accused Shoaib Sultan issued E Form of his company namely
Popular Corporation to the co-accused Richard Duru’s company. Applicant is
involved in the case of drug trafficking and smuggling and onus to prove that
the Applicant is innocent under section 29 of CNS Act is upon the Applicant,
who has failed to discharge the same. He further submits that Applicant is also
not entitled to grant bail on the medical ground. Learned Special Prosecutor
ANF has placed reliance upon PLD 2007 Karachi 110, 2013 P.Cr.L.J. 1633, 2010
SCMR 927, 2013 P.Cr.L.J. 843, 2013 P.Cr.L.J. 84, 2003 P.Cr.L.J. 202, 2008 YLR
2093, 2010 MLD 1045, 2009 MLD 115, 2006 SCMR 1265, PLD 2010 SC 1052, 2011
P.Cr.L.J. 1953, 2006 MLD 704, 2000 P.Cr.L.J. 735, 1999 YLR 2331 and 2010
P.Cr.L.J. 292.
6. I have heard M/s Syed Mehmood Alam Rizvi, Ashiq Raza and
Zakir Laghari Advocate for the Applicant, Mr. Umer Siyal Special Prosecutor ANF
and perused the material available on record with their assistance.
7. On tentative assessment of the material available on record
as is evident from the inception of the investigation on 06.04.2014 the
Applicant and co-accused Shoaib Sultan fully cooperated with the Investigating
Officer. Both of them took the ANF officials to Jinnah International Airport
Karachi when the other co-accused Richard Duru was intercepted, who admitted
that subject shipment has to be exported to his company and is ready and lying
for export with the customs authorities. From the history of drugs trafficking
and smuggling in Pakistan by the foreign smugglers it is not out of place to
mention that drugs traffickers and smugglers adopt noble methods to transport,
traffic or smuggle drugs from one country to another. In the instant case a unique
and different method has been adopted by the co-accused Richard Duru of
Nigerian National with full assistance of another absconding accused Nigerian
National namely Yousuf when they loaded 24 tins of Habib cooking oil on
31.03.2014 in the loading truck at Cant Railway Station, Karachi comprising
heroin of 52.800 kilograms. This fact has already been mentioned by the truck
driver Hameed Gul in his statement recorded under section 161 Cr.P.C. on
15.04.2014, which is enclosed as Annexure “B/3” at page-29 of the File, wherein
it was stated by the driver Hameed Gul that on 31.03.2014 in company of a
foreign national Richard Duru he loaded tins of Habib cooking oil from Habib
Cooking Oil factory situated at Siemens Chowrangi, SITE area, Karachi, which
were packed in cartons of six tins. After loading cooking oil tins from Habib
Cooking Oil Factory Richard Duru took the driver in his Mazda Vehicle bearing
No.JY-4290 to Cant. Railway station Karachi for loading some more tins of Habib
cooking oil and had loaded 24 tins of Habib cooking oil. Nothing about the
presence of the applicant and co-accused Shoaib Sultan on 31.03.2014 at the
time of loading of 24 tins of Habib cooking oil at the Cant Railway station
Karachi has been stated by the Truck Driver Hameed Gul in his statement under
section 161 Cr.P.C. before the police. Recovery of 52.800 kilograms heroin has
been effected from 24 tins of cooking oil available in the subject containers,
which makes the case of the Applicant of further inquiry. Prosecution has
failed to establish the requisite conscious knowledge of the applicant about
the narcotics being kept in 24 tins of Habib Cooking Oil. From the material
available on record and the circumstances as stated above, it is tentatively
held that there are certain anomalies in the prosecution case which require
further inquiry and at this stage no credible or tangible material is available
against the applicant to connect him with the commission of the alleged offence.
The benefit of doubt even at the bail stage should go in favour of the
applicant/accused as reasonable doubts arises as to participation of the
applicant in the offence alleged against him. The case law cited by the learned
Special Prosecutor ANF are distinguishable and not applicable to the facts and
circumstances of the instant case.
8. Above
are the reasons of my short order dated 18.07.2014 whereby the Applicant was
granted bail
subject to furnishing two separate sureties in the sum of Rs.5,000,000/- (Rupees
Five Million only) each and P.R. in the like amount to the satisfaction of the
Nazir of this Court, so also subject to
submission of original passport of the Applicant before the Nazir of this
Court. The Director Immigration, FIA was directed to put the name of the
Applicant on Exit Control List (ECL), till further orders of this Court.
9. Observations made hereinabove are of
tentative nature and the trial Court shall not be influenced by any such
observation.
J
U D G E
Karachi
Dated _________________