IN THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Bail Application No. 1594 of 2016

 

Nasir Ali…………..………………………………...…………………..Applicant

 

Versus

 

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

 

Date of Hearing & Order :        27.02.2017

 

Mr. Manzoor Ahmed, advocate for the Applicant

Mr. Shafiq Ahmed, Special Prosecutor,  ANF

 

O R D E R

.-.-.-.-.-.

 

FAHIM AHMED SIDDIQUI, J: The applicant/accused is involved in FIR No. 41/2013 registered at Police Station of ANF-II, Karachi under section 6/9-C of the Control of Narcotics Substance Act, 1997.

1.                          The allegations against the applicant/accused are that he was arrested from Jinnah International Airport with a considerable quantity of opium (4 kg), which he was trying to smuggle to Doha.

 

2.                          Briefly, the facts of the case are that on 27-08-2013, Inspector/SHO Tahir Ahmed of PS ANF-II, Karachi on the tip of a spy information along with the raiding party raged outside the international departure lounge of Jinnah International Airport, Karachi at 0230 hours and started surveillance. On pointing out by spy informer, the raiding police party succeeded in arresting the applicant/accused at about 0245 hours from the said spot. From the personal search of accused, the police recovered travelling documents for the destination of Doha while from his bag, 4 kg opium was also recovered. On the information received from the applicant/accused, police also arrested his co-accused Ali Baloch from a nearby eatery.

 

3.                          The learned counsel for the applicant/accused argued the instant bail application at length. The trail of his arguments is that the trial court has framed charge but failed to examine a single witness. Only on three dates of hearing, prosecution witnesses appeared but returned unexamined. According to him, only on one trial date, case was not proceeded because of defence counsel’s absence. According to him, in such type of cases, the maximum sentence will possibly be six years. He also pointed out that after absconding of co-accused, the trial court is busy in proceeding against absconding accused due to which further delay is possible. However, he pressed the instant application on the statutory ground, applicant/accused is entitled to bail.

 

4.                          As against the above, the learned special counsel for ANF submitted that bail on the statutory ground is not available if there is only one adjournment on the advocate for the applicant/accused.   According to him, co-accused became fugitive to trial after getting bail from the trial court. He submitted that the applicant/accused used to reside in Iran and he would likely to abscond if released on bail.

 

5.                          I have heard the arguments and have gone through the available record placed before me. In the instant matter, following points are considerable:-

 

a)    Applicant/Accused was arrested red-handed and considerable quantity of narcotics was recovered from his possession. At the time of his arrest, he was trying to go out of Pakistan with the recovered drugs.

b)    In the instant matter, co-accused absconded away after getting bail from the trial court. As per the prosecution, the applicant used to reside in Iran; therefore, the apprehension of prosecution that accused would abscond away, bears weight.

c)    The benefit on account of delay in trial is also not available to applicant/accused. After his arrest, he tried to linger on the case as he engaged the present counsel after sufficient delay, which shows that it was his intention to defeat the trial court to proceed with the case so that his case for 'statutory delay' may be made out.

d)    It appears from the record that the applicant/accused has changed his counsel twice. It is also on the record that during the trial when defence lawyer did not appear, the trial court on the application of present applicant/accused, appointed counsel on state expenses for pauper accused vide order dated 21.11.2015..

e)    It can also be seen from the diaries annexed with bail application that I.O. has been transferred to Sukkur as such his appearance on each date is difficult. However, on 13-11-2014 and 25-8-2015, I.O. along with case property remained in attendance, but due to the absence of defence counsel, the trial court could not proceed with the case.

f)     As far as the contention of learned counsel regarding the quantum of would be sentenced is concerned, the same is not material at bail stage. In this respect, Hon’ble Supreme Court in the case of  Socha Gul v. the State (2015 SCMR 1077) has observed that court could not undertake categorization of sentencing or speculation and guess work in this respect at the time of bail in narcotics cases.

g)    I am of the view that delay of the trial because of absconding accused is also not appreciable. In this respect in my short order, I have already guided the trial court to follow the procedure laid down by this Court in the case reported as Arshad Hussain v. the State (PLD 2001 Karachi 211). As per dictum laid down in Arshad Hussain’s case, the trial court may segregate the case of absconding accused and proceed with the trial of accused in custody or attendance.

h)   However, a fair and speedy trial is the right of accused as such trial court has already been given directions to dispose of the case of applicant/accused within three months. The trial court is further directed to use all coercive measure for procuring the attendance of prosecution witnesses.

 

6.        The above are the reasons of my short order dated 27-02-2017 through which the bail application of the applicant/accused Nasir Ali son of Khan Muhammad was declined.

 

J U D G E