ORDER SHEET
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Date Order
with signature of Judge
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DATE OF HEARING 26.03.2015
M/s. Salahuddin Khan Gandapur, Illamudin Khattak,
Saleem Hussain Shah and Sabir Shah 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 Richard Duru son of Duru.
2. Previously
present Applicant approached to this Court directly by filing Criminal Bail
Application No.1507/2014 as Bail Application filed before the Trial Court in Spl.
Case No.394/2014 was not being proceeded due to stay of proceedings of Spl.
Case granted by this Court in Criminal Transfer Application No.48/2014.
However, by an administrative order passed by this Court the cases of CNS-II
Karachi were transferred to CNS-I, Karachi including Spl. Case No.394/2014 and
order to the extent of transfer of case has become infructuous therefore, by
consent of learned Counsel for the Applicant and Spl. Prosecutor ANF earlier
Bail Application of the present Applicant bearing Crl. Bail Application
No.1507/2014 was disposed of on 29.11.2014 with direction to the learned Trial
Court to decide Bail Application of the Applicant pending before it preferably
within a period of Ten days time from receipt of the order.
3. Thereafter,
vide order dated 11.12.2014 Bail Application of present Applicant pending
before the Trial Court was dismissed.
4. 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, Everyday powder milk, two room refrigerators, 1020 tins of Habib
Cooking Oil were recovered. In 24 tins of Habib Cooking Oil heroin powder lying
in plastic shopper total weighing 52.800 kilograms was recovered. Hence the FIR
was registered.
5. 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. He
further contended that the name of private witness PW Hameed Gul Driver on
whose statements bail was rejected has not been mentioned in the FIR, so also his
statement under section 161 Cr.P.C. was recorded after eight days of
registration of FIR and after nine days of occurrence. Learned Counsel for the
Applicant further contended that co-accused Abdullah Omer and Shoaib Sultan have
already been enlarged on bail by this Court therefore,
same treatment may also be extended to the present applicant following the rule
of consistency as case of the Applicant is on better footings then the case of
co-accused who have already been granted bail. Learned Counsel has placed
reliance upon 2001 SCMR 14 (The State through Deputy Director Anti-Narcotic
Force, Karachi versus Syed Abdul Qayum), 2012 SCMR 184 (Allah Ditta Versus the
State), 2008 SCMR 173 (Muhammad Daud and another Versus The State), 1979 SCMR 9
(Muhammad Fazal alias Bodi Versus the State), 2012 SCMR 1137 (Ehsanullah Versus the State), 2012 P.Cr.L.J. 595 (Saleh
alias Saloo versus the State), 2013 P.Cr.L.J. 394 (Muhammad Hanif Abbasi versus
the State), 2012 SCMR 1955 (Pur Bux Versus the State), 2009 SCMR 954 (Muhammad
Ullah versus the State), 2012 SCMR 387 (Muhammad Waseem versus the State) and
2013SCMR 669 (Raa Muhammad Younus versus the State).
6. Mr.
Umer Siyal learned Special Prosecutor ANF has 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. Rule of consistency does not apply to the case of present
Applicant as he was Importer of the consignment and his role is different from the
role of co-accused who have been granted bail. 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. Learned Special Prosecutor ANF
has placed reliance upon 2015 SCMR 133 (The State versus Aleem Haider), 2008
SCMR 1254 (Zafar versus the State) and PLD 2007 Karachi 110 (Ahudha Manliki
versus the State).
7. I have
heard M/s. Salahuddin Khan Gandapur, Illamudin Khattak, Saleem Hussain Shah and
Sabir Shah Advocates for the Applicant, Mr. Umer Siyal Special Prosecutor ANF and perused the
material available on record with their assistance.
8. On tentative assessment of the material available on record it
reveals that a huge quantity of heroin weighing 52.800 kg concealed in 24 tins
of Habib Cooking Oil was recovered from the consignment whose importer admittedly
was the present Applicant. Present Applicant was arrested at the spot and on
his pointation 52.800 kilograms heroin was recovered from the container that was
sealed in two parcels for the purpose of chemical examination. Chemical
Examiner in his report confirmed that parcels contained heroin. 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 present Applicant (Richard Duru a Nigerian National) with full assistance
of another absconding accused of Nigerian Nationality namely Yousuf when they
loaded 24 tins of Habib cooking oil on 31.03.2014 in the loading truck at Cant
Railway Station, Karachi containing 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 that on 31.03.2014 in company of a
foreign national Richard Duru (present Applicant) 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 (present Applicant) 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. Recovery of 52.800 kilograms heroin has been effected
from 24 tins of cooking oil available in the subject container, which fully implicated
the present Applicant in the present case. Delay in recording statement of eye
witness Hameed Gul does not fatal to the case of the prosecution as the I.O.
after starting investigation traced-out and located the said witness and
immediately when he was found, his statement was recorded. No enmity, grudge
and ill-will has been attributed against the ANF
officials and private witnesses to falsely implicate the present applicant in
the present case.
9. Furthermore the Applicant is a foreign national, the
possibility of absconding could not be ruled out and once he leaves the country
through any illegal method his attendance could not be procured to face the
trial even if his surety’s bail bonds are cancelled and surety amount is
recovered from the surety.
10. The case law cited by the learned Counsel for the Applicant in
my humble view are distinguishable and not applicable to the facts and
circumstances of the instant case.
11 Above
are the reasons of my short order dated 26.03.2015 whereby the present Bail
Application was dismissed. However, it is expected that the Trial Court will start
the trial immediately and conclude the same within a period of Sixty (60) days.
12. 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 _________________