IN THE HIGH COURT OF SINDH AT KARACHI

 

CR. MISC. APPLICATION NO.6/2014

         PRESENT:     MR. JUSTICE GHULAM SARWAR KORAI, &

                                  MR. JUSTICE SALAHUDDIN PANHWAR

 

Applicant    :         The State, through Assistant Collector of                                          Customs (Preventive).

                             Through Mr. Ghulam Mustafa, advocate.

 

 

Respondent:         Ghulam Mustafa.

                             Respondent produced in custody.  

 

 

Date of hearing              :         05.03.2014.

 

Date of announcement  :         21.03.2014.

 

 

O R D E R

 

SALAHUDDIN PANHWAR, J. Through instant application, applicant seeks cancellation of bail granted in favour of respondent by order dated 2nd October 2013, passed by Special Judge-II (CNS), Karachi, in Special Case No.432/2011 under section 9(c) of the CNS Act, 1997.

2.                             Succinctly, relevant facts are that credible information was passed-on by the Additional Collector of Customs, Jinnah International Airport, Karachi, that attempt would be made to smuggle huge quantity of contraband narcotics out of Pakistan under the garb of medicines in commercial quantity with the connivance of some customs officials posted at the International Departure Hall, Jinnah International Airport, Karachi. In this connection specific instructions were issued to keep strict watch over all outgoing baggage and additional officers including IPS Muhammad Iqbal (MI) were also posted at the International Departure Hall, for strict surveillance. During the course of surveillance on the intervening night of 20th / 21st August 2011 said IPS Muhammad Iqbal noticed that a passenger with four suitcases was heading towards ASF’s baggage scanning machine installed immediately after the Fast Tract inside International Departure Hall and instructed the complainant SPO Rashid Saeed to stop the passenger and his baggage. The complainant SPO Rashid Saeed immediately rushed to the ASF’s scanning machine where the baggage had been scanned and scanning images indicated the presence of medicine in huge commercial quantity inside said suitcases and stopped the passenger after he had collected his four suitcases from ASF’s scanning machine and brought him back to the customs examination counters as it had become imperative to examine the baggage so intercepted. Prior to baggage examination the passenger’s raveling documents were scrutinized which disclosed his name as Ghulam Mustafa son of Muhammad Samad Ali who was leaving for Dacca via Doha by Qatar Airways Flight NO.QR-319 from Karachi, his baggage comprising four suitcases was cursorily examined in presence of two witnesses namely SPO Muhammad Imtiaz Ali and SPO Ashraf Mahmood and found to contain miscellaneous allopathic medicines kept on the upper layer under which bulk of herbal medicines packets viz; Ma’jun Dabeed-ul-Ward and Khamira Goazaban were stacked. At this moment three customs officials namely IPS Asif Naseer, SPO Syed Karar Haider and SPO Naeem Ahmed (Posted in the same shift) asked IPS Muhammad Iqbal to let the passenger and his baggage go out of the custom hall, however it was not accepted and in this regard IPS Asif Naseer also made a phone call to A. Hanif Khan requesting for release of the passenger and his baggage but the Assistant Collector also did not allow this request. Subsequently the said four suitcases were examined in presence of above said witnesses during which all herbal medicine packets were taken out and were found to 735 in numbers, the said packets when unpacked were found to contain one plastic jar each and all the said plastic jars were found to contain off-white heroin powder instead of Ma’jun Dabeed-ul-Ward and Khamira Goazaban in fact prepared in wet-paste form, the recovered heroin powder was instantly tested with Narcotic Test Kit which is positive result upon finalization of heroin powder recovered from 735 plastic jars was found to be 73.5 Kgs (net) upon weighing. Three representative samples each weighing about 20 grams were also drawn and sealed under the signature of above said witnesses. Heroin powder so recovered was accordingly seized along with the containers thereof and passengers traveling documents under the cover of Mashirnama.

3.                             Learned counsel for applicant, inter alia, contended that impugned order is completely in negation of dictum passed by Honorable Supreme Court reported as 2000 SCMR 299 wherein it is held that proviso 3 of section 497 Cr.P.C. is not applicable in case of CNS Act therefore trial Judge has wrongly extended the benefit to the applicant. It is a case of recovery of 73.5 Kg heroin powder therefore even on merits respondent was not entitled for bail, thus impugned order is not sustainable under the law.

4.                           Heard counsel for applicant, respondent in person and perused record.

5.                           Since, learned trial judge has granted post arrest bail to the respondent on the plea of statutory delay, therefore, we find it quite necessary, just and proper to refer the relevant proviso, as to examine the legality of impugned order.  The relevant portion of the Section 497(1) Cr.PC is reproduced hereunder:-

 

 497.  When bail may be taken in cases of non-bailable offence (1). …………

 

            Provided further that the Court shall, where it is of the opinion that the delay in the trial of accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail---

(a)               Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded, or

(b)               Who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded.

Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life). (under lining is ours)

6.                     A bare reading of the above proviso shows that this proviso demands release of the accused, who being accused of an offence per condition (a) and (b) as the case may be, has been detained for such offence for a continuous period exceeding one year or two years, as the case may be (per condition (a) and (b) ) but whose trial for such offence has not been concluded within such period however, the demand of release is subject to satisfaction of the Court that ‘delay in conclusion of trial’ was not occasioned by any act or omission of the accused or any other person acting on behalf of such accused.  Further,  it is pertinent to mention that such ‘right to claim release on bail’,  is not of general application proviso “a” and “b” are subject to the following conditions :-

(i)                 a previously convicted for an offence of punishable with death or imprisonment for life;

(ii)              a person, who in opinion of the Court, is a hardened, desperate or dangerous criminal;

(iii)            is accused of an act of terrorism punishable with death or imprisonment for life;-

 

7.                     Thus, while deciding bail application on the plea of delay, courts are under mandatory obligation to examine the conditions judiciously.

8.                     Besides above, it is manifest that such benefit shall not be extended for a ‘hardened’, desperate, and ‘dangerous criminal. The ordinary meaning of desperate is “feeling or showing a hopeless sense that a situation is so bad as to be impossible to deal with’ while the meaning of ‘hardened’ is ‘having become or been made hard or harder’. The ordinary dictionary meaning of ‘Criminal’ is ‘a person guilty of crime’ and adjectively ‘involving or concerning crime’. The Court is to form an opinion in the circumstances and facts of each case against a person, which, being a mere opinion shall not be termed as a decision or a judgment but shall be an observation of the Court about a person in the circumstances and facts of each case. Thus it shall be subjective in its application and shall have no bearing on the fate of the case which requires evaluation of evidence. Therefore, whenever question of exercise of powers under this proviso comes before the Court, the Court shall satisfy itself that case of ‘accused’ does not fall within exceptions as provided in the section and then to towards clause “a” and “b” because both clauses are subject to the rider, any departure of such conditions shall frustrate the whole scheme of law.

9.                     Now, there is another question as to what the Court is required to consider forming an opinion with reference to fourth proviso. For this, we would like to refer the case of Manzoor Ahmed V. The State (1999 SCMR 131), wherein it is observed as under:

            We find that the order passed by the learned Judge in Chamber is not     open to exception. The learned Judge in the High Court obviously could not be oblivious of the high incidence of cases of car-snatching in the city of Karachi. Therefore, in our opinion, he rightly invoked the fourth proviso to section 497(1) while rejecting the petitioner’s bail application”.

 

                        Whereas in the case of Sher Ali alias Sheri v. The State (1998 SCMR 190), wherein it is held that:

             “We are in respectful agreement with the above enunciation of law. We are also inclined to hold that in order to bring an accused person within the compass of a hardened, desperate or dangerous criminal, it is not necessary to prove that he had been previously convicted for the reason that previously convicted persons are separately dealt with in the above fourth proviso as is evident. It must, therefore, follow that if the prosecution places on record sufficient material before the Court to indicate that on the basis of tentative assessment the accused persons involved can be treated as a hardened, desperate or dangerous criminal or a person involved in terrorism, the bail on the ground of statutory delay can be denied’.

  (Underlining is supplied for emphasis)

 

10.              The guidelines, provided by the Honourable Supreme Court, have made it quite clear that it is not the criminal record of the ‘accused’ alone for bringing or getting out of the ‘case’ of accused from exceptions of fourth proviso but the ‘offence’ , impact thereof and manner of committing thereof is also to be kept in view.

11.              Now, we would like to revert to the merits of the case. The allegation against the respondent / accused is that ‘he, having joined hands with some of security officials of Airport, planed to transport huge quantity of heroin powder (73.5 kg) outside the country. Needless to say anything about the evil effects of the narcotics in our society hence it is not an ordinary offence which has its limited consequences but it has been the consequences of such offence which remained compelling the legislature to introduce different enactment (s), including Control of Narcotics Substances Act, where the punishment for such offence (s) was enhanced with no other object but to eliminate such malevolence business or least to create a threat to those who, for financial benefit, play with young blood of the society. The concern of the legislature is also evident from insertion of ‘section (s)’ in such enactment (s) whereby either release of such offender (s) on bail was made tight or even denied at all.  It would not be out of place mention here that the drug traffickers and smugglers adopt various of methods to transport, traffic and smuggle illegal articles from one country to another. Therefore, criteria and yardstick for examining the cases of normal possession or transportation of narcotics drugs should be different from the cases of trafficking and smuggling of narcotic drugs. The attempted transport of narcotics is ‘heroin powder’ which, because of its consequences, has dangerous effect upon the society. Since it is also the ‘weight” which is a determining factor in such like offence towards punishment, hence ‘a person accused’ of trafficking huge quantity of ‘heroin powder’ is not entitled for concession of clause (a) and (b) which, in its objective, not available for those who either falling with exceptions of such proviso, and involved in heinous nature of ‘offence against society’; therefore prime facie, present circumstances, reflects that respondent attempted to transport 73. 5 kg Heroin powder, hence this case falls within the category of hardened and desperate criminal.

12.              The learned trial court judge did not touch this aspect of the matter but in a mechanical manner ordered for release of the accused / respondent with reference to “No objection” of Special Prosecutor for release of accused / respondent under clause “a” and “b” of Section 497(1) Cr.P.C. Here it needs to be clear that a mere no objection of the Special Prosecutor or State Counsel shall not validate release of an accused of non bailable offence but it should always be the satisfaction of the Court, based on judicial reasoning towards relevant parameter for release of such accused, which matters. 

13.              Be that as it may, let’s examine the case of accused / respondent simply within the ambit of sub-clause “b” of Section 497 Cr.P.C. Before proceeding further on this point it would be material to add that the release of an a caused under the above proviso to section 497(1) (a) (b) Cr.P.C by the Court is not dependent on any such mathematical calculation of the period of detention suffered by the accused but depends largely on an objective satisfaction of Court to the fact that the delay in the trial of accused beyond the period mentioned in the above provisions was not the result of any act or omission of the accused or any other person acting on his behalf. The learned trial Court judge did not appreciate that at number of date (s) of hearing the witnesses were present but the matter was adjourned due to absence of the counsel for the accused / respondent or absence of the counsel (s) for co-accused persons who are on bail. The date (s) on which the counsel for accused / respondent was himself not present the accused / respondent cannot legally be justified in asking for calculation of such date (s) of hearing because such delay cannot be solely attributed to prosecution alone. On date (s) of hearing i.e 13.12.2011, 04.2.2012, 02.5.2012, 06.6.2012,10.10.2012, 20.11.2012, 13.12.2011, 14.2.2012, 8.01.2013, 27.02.2013, 13.3.2013, 03.4.2013, 24.3.2013, 20.8.2013, 10.9.2013 the defence counsel was absent and if such period is excluded the statutory period is not completed. Here it is worth to mention that date of arrest of accused / respondent is 21.8.2011 and bail was granted on 02.10.2013 i.e just after completion of two years period and such calculation appears to have been made without proper reference to the case diaries; reasons of delay, nature of allegation, severity of offence but fell in error by just counting the days to release the accused / respondents.

14.              At this juncture we fell it proper to endorse here that since delay in trial can easily be managed, therefore, the Court (s) should not become tool for such delaying tactics to allow the accused in custody to claim bail on this ground, especially in cases, which relates to the hardened criminals, who have net work, for commission of offences as they can easily design to delay the trial by various modes. The Court (s) should take efforts to adjust hearing of the case with convenience and consultation of all because the object of fixing date of hearing is to ‘proceed’ and not to ‘adjourn’.

15.              In view of what has been discussed above, we are of the view that not only the accused / respondent is alleged to be involved in a offence against society, though the statutory period is also not calculated as stated above, in-spite of that such proviso is not helpful for the accused / respondent, thus it germane to mention that impugned order is perverse, illegal, capricious and not maintainable under the law thus we are inclined to accept the instant application. Accordingly, the impugned order dated 02.10.2013 whereby bail was granted to the accused / respondent is hereby set-aside.

16.              However, while parting with the order, we shall endorse here that the accused is legally entitled for a speedy decision, therefore, the trial Court is directed to conclude the trial of the case within a period of three (03) months from the receipt of order and shall not adjourn the case except on a genuine and reasonable ground or cause. Compliance report shall be made through MIT of this court. It is made clear that observation(s), hereinabove, shall have no bearing on merits of the case.

                                                                                  J U D G E

Imran/PA                                            J U D G E