IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Bail Application No. 1060 of 2016

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Date Order with Signature of Judge

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Before :Mr. Justice Fahim Ahmed Siddiqui

Shaikh Muhammad Akram.............……………………...…………………..Applicant

Versus

The State……………………………………….…………..……………….Respondent

Date of Hearing & Order : 30.01.2017

Mr. Manzoor Ahmed Rajput, advocate for the applicant

Mr. Habib Ahmed, Special Prosecutor for ANF

O R D E R

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FAHIM AHMED SIDDIQUI, J: Applicant is arrested in Crime No. 44 of 2015 of Police Station, A.N.F. Clifton, Karachi under section 9(c) of C.N.S. Act, 1997. Initially, he approached Special Court-II (CNS) Karachi for getting bail wherefrom his bail plea was declined vide order dated 23-04-2016. Against the said order, present bail application has been filed.

2. Succinctly, the facts of the FIR are that the complainant S.I. Muhammad Hassan Khoharo of PS Clifton reported that he received spy information through officers of ANF that international smuggler Muhammad Ikram Sheikh (who absconded after bail in FIR No. 16/2012) along with his father Muhammad Akram Sheikh and special agent Muhammad Akhter has sent huge quantity of narcotics through a container bearing No. MRKU-5267523, using E-Form of M/S. Naval International, Karachi to the importer M/S. BC Ltd, 2102980 Ave Langley, BC V2YOJ4, Vancouver, Canada. The said container was brought back by the authorities and he was directed to check the same. The complainant along with his staff reached at QICT, Karachi, where he requested to passers-by to act as witnesses but they refused owing to fear of drug peddlers. The complainant found the said container in sealed condition, after break-opening, 400 nylon sacks and 200 cartoons were recovered from it. In every sack, he found rice bags of 5 kg each whereas the cartoons contained vermicelli. Thereafter the container was thoroughly checked and after dismantling its floor, 99 boxes were recovered. Amongst those boxes, 59 contained heroin while 40 contained opium, wrapped in polythene bags. After weighing, 70 kg of heroin and 76 kg of opium were the total recovery from the container. After proper sampling for chemical analysis, the recovered narcotics and samples were sealed separately.

3. The learned counsel for the complainant made his submission at length. Trail of his arguments is that the applicant involved on account of animosity which is clear from the FIR as it starts with the allegation of absconding against the son of the applicant. The container was sent after checking, and it remained in the sea during the long voyage, therefore recovery is doubtful. The recovery was not effected from the exclusive possession of the applicant. The applicant is an aged person as such he deserves leniency. Recovery of huge quantity is no longer a ground for refusal of bail. He took reliance from Muhammad Farooq Khan v. The State (2007 PCrLJ 89) and Shah Nawaz alias Shanoo v. The State (2014 PCrLJ 482).

4. On the other hand, the learned special counsel opposed the instant bail plea. The gist of his arguments is that the shipping documents and statements of the agent are sufficient to involve the applicant in the instant case. As per the statement of star witness Nadeem Sheikh, the present applicant has given him undertaking at the time of shipment that there was no contraband article in the container. The offence was detected on the tip of information while the star witness has implicated the applicant in the instant case. The evidence was also collected from those persons whose E-Form was used by the applicant.

5. I have heard parties' counsel at length and have also gone through the relevant record so made available before the court. It is worth noting that the applicant is the actual exporter of the consignment through the said container. The consignment was exported on E-Form of some other business concern, which is a common practice. E-Form or export form is utilized for export purpose as assurance about the remittance of foreign exchange in Pakistan. It is a declaration that this export is being processed against the foreign exchange either it has arrived in Pakistan or is contracted to arrive after shipment maturity. The applicant is the person, who completed all the proceedings in respect of the said E-Form and he is one who has given an undertaking regarding the container from which a huge quantity of narcotics was recovered.

6. It is argued that the CNF authorities involved the applicant on account of animosity as complainant stated in FIR that the son of accused was absconder in some case. He also urged that the container remained in the sea for a considerable period of time as such recovery is doubtful. Perhaps the learned counsel tried to say that during the long voyage the narcotics were concealed in the container. It is worth noting that the learned counsel could not establish that the son of the applicant is not absconder and the allegation is false. The fact is that the son of applicant absconded in a narcotics case after getting bail, and inserting a true fact regarding the son of applicant cannot be termed as animosity. Similarly, it is hard to believe that the shipping company may take pain to conceal the narcotics in the container during the sea voyage. The container was neither offloaded in Canada nor handed over to the importer. It remained in the custody of the shipper and the seal of the container were found intact at QICT. The shipping documents fully connect the applicant with the said container.

7. The case laws cited by the learned counsel for the applicant do not apply to the peculiar circumstances of the case in hand. According to the case of Muhammad Farooq (supra), accused is entitled to bail in case he is arrested only on account of suspicion. In the present case sufficient evidence is available to connect the applicant to the commission of the alleged offence as such this case law is not helpful for the applicant. The case of Shah Nawaz (supra) is distinguishing because in the said case law bail was granted on account of established animosity but in the instant case, no animosity with the applicant is on the record either from the raiding party or the ship company.

These are the reasons for my short order dated 30-01-2017 through which the bail plea of the applicant was declined. The observations made herein above are of tentative nature and the trial Court shall not be influenced by the same at the time of deciding the case on merits.

J U D G E