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 counsels 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, Honble 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 Hussains 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