THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No.1339 of 2018
DATE ORDER WITH SIGNATURE OF JUDGE
Applicant : Sajid Yameen through Mr. Umar Farooq
Khan, Advocate.
Respondent : The State through Mr. Habib Ahmed,
Special Prosecutor, ANF alongwith SIP Ali, Muhammad of ANF, Karachi.
Date of hearing : 15.01.2019
Date of decision : 15.01.2019
O R D E R
Abdul Maalik Gaddi, J. Applicant Sajid Yameen son of Raja Bin Yameen, having been involved in case FIR No.28 of 2017 dated 29.09.2017, registered at police station ANF, Clifton, Karachi, under Section 6/9-C read with Sections 14/15 of the Control of Narcotics Substance Act, 1997, was refused bail by this Court on 19.06.2018 in Criminal Bail Application No.538 of 2018 with directions to the learned trial Court to at least record the evidence of complainant (SI Ali Muhammad) within the period of thirty (30) days, after receipt of this order, whereafter, applicant was allowed to file fresh bail application on fresh ground, if he so desired, and the trial Court shall then decide the same as per law. It was further directed to trial Court that compliance report be submitted to this Court through MIT-II.
2. Progress report submitted by the trial Court dated 11.01.2019 on record showing that after arrest of the present applicant, charge was framed on 20.02.2018 and after framing of charge, no prosecution witness has been examined. Under the circumstances, the applicant had moved second bail application before the trial Court, which was dismissed vide order dated 11.09.2018, hence, instant bail application.
3. Brief facts of the case as per FIR are that the complainant SI Ali Muhammad of police station ANF, Clifton, Karachi, lodged FIR on 29.09.2017 at about 0230 hours and alleged therein that he received spy information that the international smuggler of the narcotics Sajid Yamin through his agent Humayon would smuggle narcotic in huge quantity and hand it over to an agent/smuggler Syed Adnan Ali a narcotics smuggler at Karachi and he was about to reach at Karachi through Daewoo bus in between 2330 to 0000 hours at Daewoo bus stand, Super Highway, Karachi, therefore, raiding party constituted and reached at the spot at about 2300 hours and found a person at Daewoo bus stand having a blue travelling bag in his right hand and the spy informed that he was same Humayoun, therefore, secret surveillance was started and during surveillance at about 0005 hours a person met with Humayoun while both the persons started to leave the spot, they were apprehended alongwith blue travelling bag and the people present there were asked to act as witness, but they refused due to fear of smugglers, therefore, PC Waqas and PC Sajid Ali were nominated as witnesses and inquired the names of first person, who disclosed his name as Humayoun Anees son of Ghulam Hussain resident of House No.V-222, Chaklala, Rawalpindi Cantt., whereas, the other person disclosed his name as Syed Ali Sher son of Syed Shireen Mirza, resident Green Park City, Bin Qasim Town, Karachi and from right hand of Humayoun, the blue color bag secured which was checked containing wearing apparels as well as six packets of polythene bags type recovered containing heroin powder and the weight of the five packets was 1/1 Kg each, whereas, 6th packet was found 500 grams, therefore, total weight of all the heroin was 5.500 Kgs, from each packet 10/10 grams samples were withdrawn for chemical analysis and sealed the same at the spot and from personal search of accused Humayoun CNIC original, ASF service card in his name, copy of CNIC, ticket of Daewoo bus, Rs.3000/- and two cell phones were recovered, whereas, from the personal search of accused Syed Ali Sher, CNIC original, Rs.2000/- and cell phone alongwith sim recovered and on the initial inquiry accused Humayoun disclosed that the actual owner of the heroin is Sajid Yamin son of Raja Bin Yamin, resident of House No.12, Gali No.6, Mohallah Sawan Gardan, Block-E, Islamabad. Memo of arrest and recovery was prepared at the spot and the case property alongwith accused persons brought at police station, where FIR was lodged against the accused.
4. Mr. Umar Farooq Khan, the learned Counsel for applicant contended that the accused is innocent and has been falsely implicated in this case; that first bail application of the accused was dismissed by the trial Court and this Court. This Court, while dismissing the bail application of the accused was pleased to issue directions to trial Court to at least examine the complainant of the case within a period of thirty (30) days after receiving the order and the order of this Court was passed on 19.06.2018 and up till now, the prosecution miserably failed to produce any of witness including the complaint SI Ali Muhammad before the trial Court and no any recovery was effected from the possession of the applicant/accused nor he was arrested from the spot, however, he was arrested much after the arrest of main accused Humayoun Anees malafidely; that co-accused namely Syed Ali Sher has been granted bail, although, he was arrested alongwith main accused Humayoun Anees and the case of present applicant is on better footings then the case of accused Syed Ali Sher, therefore, the applicant is also entitled for bail by following the rule of consistency. In support of his contention, learned Counsel for applicant has relied upon the unreported order passed by the Hon’ble Supreme Court in Criminal Petition No.612 of 2018 [re. Natiq Saleem v. The State].
5. Mr. Habib Ahmed, the learned Special Prosecutor, ANF, when confronted all the above mentioned facts as argued by the learned Counsel for applicant, has half-heartedly opposed this bail application on the ground that the present applicant is involved in this case, which according to him, is a serious and heinous in nature and the present applicant is big smuggler of narcotics.
6. Arguments heard and record perused.
7. Perusal of record reveals that this applicant was granted protective bail vide order dated 15.12.2017 passed in Bail Application No.1929 of 2017 by this Court for seven days and thereafter, he appeared before the trial Court on 18.12.2017, from where he was granted interim pre-arrest bail vide order dated 18.12.2017 subject to furnishing solvent surety in the sum of Rs.500,000/-, but the accused failed to arrange the surety before trial Court and subsequently, arrested by ANF and remanded to judicial custody. It also appears from the record that in this matter, four accused have been arrested including present applicant and amended charge was framed against them on 20.02.2018 and thereafter, matter was posted to 24.03.2018 for recording of evidence of prosecution witnesses. Progress report as already submitted by the Presiding Officer of trial Court shows that time and again, matter was adjourned for recording of evidence of prosecution witnesses for one reason or the other, but after framing of amended charge, not a single witness has been examined in this case. When confronted this position to learned Special Prosecutor, ANF why the prosecution has failed to examine any witness, he has no plausible answer with him. It reveals from the record that amended charge was framed on 20.02.2018 since then, not a single witness has been examined. Progress report submitted by the Presiding Officer of the trial Court with regard to non-examination of prosecution witnesses is not satisfactory. Accused is behind the bars for the last more than eleven (11) months and directions were also issued to the learned trial Court to at least record the evidence of complainant, but even after the lapse of six and half months, not a single witness has been examined. If the trial Court proceeded trial with such speed that would not be concluded the trial in near future. In this regard, I have gone through the case of Muhammad Aslam v. the State reported as 1999 SCMR 2147, in which the Hon’ble Supreme Court of Pakistan has held as under:-
“Despite direction of High Court trial against the accused had not been completed by the Trial Court within the specified period---Prosecution was unable to give any explanation for non-compliance of the said order of High Court---Petition for leave to appeal was converted into appeal which was allowed and the accused was admitted to bail in circumstances.”
In the case of Jadeed Gul v. The State (1998 SCMR 1124), the Hon’ble apex Court has held that:-
“S. 497---Penal Code (XLV of 1860), Ss.274/275/276/ 420/483/482/485/487/467/471---Drugs Act (XXXI of 1976), S. 23/27---Bail, grant of---Trial of accused had not been concluded within two months despite direction of Supreme Court as Drug Court was not functioning due to non-availability of the Presiding Officer---Prosecution was unable to give time within which trial was likely to be concluded---Case of accused did not fall under the prohibitory clause of S.497(1), Cr.P.C.---Accused was admitted to bail in circumstances”.
Likewise, in the case of Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others (2015 SCMR 1092), the Hon’ble apex Court has held that:-
“Speedy trial was the alienable right of every person, therefore, even if the provision of S. 497, Cr.P.C. in ordinary course was not applicable to an accused person facing charges under National Accountability Ordinance, 1999, the broader principle of the same could be pressed into service in hardship cases to provide relief to a deserving accused person incarcerated in jail for a shockingly long period.”
8. It is pertinent to mention here that expeditious and fair trial is a fundamental right of an accused person. Delay in disposal of the case and imparting justice reduces confidence of the public in the judicial system and causes frustration and anguish. The object of criminal law is to bring the accused to justice as speedily as possible and if they are found guilty they may be punished and if they are innocent they should be acquitted from the case. Nothing on record to show that present applicant is responsible for delay in the case.
9. In this matter, four accused have been arrested including the present applicant, out of them, accused Syed Ali Sher and Syed Adnan Ali have been granted bail by the trial Court, although, the accused Syed Ali Sher was apprehended with the main accused Humayoun Anees, whereas, present applicant was arrested much after the arrest of main accused and nothing was recovered from the possession of the present applicant, as such, the case of present applicant is on better footing then the case of co-accused Syed Ali Sher, who has been granted bail by the trial Court. Moreover, the name of present applicant was disclosed by the main accused Humayoun Anees before the Investigating Officer as well as Judicial Magistrate while recording the confessional statement under Section 164, Cr.P.C., as such, according to learned Counsel, this piece of evidence has no evidentiary value against the applicant under Article 38 and 39 of the Qanoon-e-Shahadat Order, 1984 and the case of applicant requires further inquiry whether the applicant is involved in this case or otherwise and this could be done only after recording of evidence of prosecution witnesses, which still has not been recorded. When again confronted all these aspects of the case as well as legal position to the learned Special Prosecutor, ANF, he has again no plausible answer with him. However, I myself with the able assistance of learned Counsel for applicant as well as learned Special Prosecutor, ANF have gone through the case papers and come to the conclusion that the alleged recovery of heroin has not been recovered directly from the present applicant, however, applicant was arrested in this case on the basis of statement of main accused Humayoun Anees, which in my tentative opinion, has no basis. At present, there is no material on record, which could show that the present applicant, in any way, has any concerned with the alleged recovery. Under the circumstances, the question whether the applicant held liable for the recovery of Narcotics from the possession of Humayoun Anees shall be determined by the trial Court, of course, after recording evidence of the parties, however, at this stage, case against the applicant calls for further inquiry.
10. For the foregoing reasons, the instant bail application is allowed. The applicant Sajid Yameen is granted bail in instant FIR subject to his furnishing solvent surety in the sum of Rs.500,000/- (Rupees Five Lac only) and P.R. bond in the like amount to the satisfaction of the learned trial Court.
11. Needless to mention here that observations, if any, made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicant /accused on merits. It is made clear that in case applicant / accused during proceedings before the trial Court misuses the concession of bail, then the trial Court would be competent to cancel the bail of applicant without making any reference to this Court. Since it is an narcotics case, therefore, trial Court is directed to decide the case as early as possible, and no unnecessary adjournment shall be granted to either side.