IN THE
HIGH COURT OF SINDH AT KARACHI
CR.
MISC. APPLICATION NO.6/2014
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.
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