more than one year 3cases bail granted

1992 P Cr. L J 1178

[Karachi]
Before Qaiser Ahmed Hamidi, J
Syed MUHAMMAD ALI HASHMI --- Applicant
Versus
THE STATE---Respondent
Special Criminal Bail Applications Nos.21 and 22 of 1991, decided on 20th April, 1991.
(a) Criminal Procedure Code (V of 1898)---
----S. 497(1); third & fourth provisos---Customs Act (IV of 1969), S.15---Bail, grant of---Accused were in continuous detention for more than one year and were not instrumental in causing delay in disposal of the case---Involvement of accused in one more case could not term them as dangerous criminals--­Accused were admitted to bail in circumstances.
Miskeen Shah v. The State 1990 P Cr. L J 60; Amir v. The State 1991 P Cr. L J 534; Zulfiquar Ali and another v. The State 1990 P Cr. L J 822; Gul Muhammad and 2 others v. The State 1987 P Cr. L J 737 and Moundar and others v. The State P L D 1990 SC 934 ref.
(b) Criminal Procedure Code (V of 1898)---
----S. 497(1), fourth, proviso=--Customs Act (IV of 1969), S.15---Mere involvement in a case of drug trafficking will not make a person dangerous.
Jawaid Haider Kazmi for Applicant (in Special Criminal Appeal No.21 of 1991).
Syed Sami Ahmad for Applicant (in Special Criminal Appeal No.22 of 1991).
Jalaluddin Baloch for DA.-G. for the State.

ORDER

Both these bail applications have, arisen out of the same crime, hence for the sake of convenience they are being disposed of by a consolidated order.
2. The facts of the case, as set forth in the F.I.R., are that the Customs officials in Pakistan received information from Dutch Drugs Liaison Officer, National Central Bureau, Interpole Den, The Hague, through its camp office at Karachi that powder of. heroin weighing 56 Kgs. had been seized by the Municipal Police Force Velsen from a consignment of 115 bales of cotton dusters, loaded in a container No.ICSU 327218-1 ,on board of m.v. Anika Oltman which sailed from Karachi on 18-11-1989 and reached Rotterdam Harbour on 31-12-1989. The Customs officials were further informed that the exporters of the consignment were Messrs Gul Ventures International Pakistan (Pvt.) Limited, Karachi, and the clearing agents of the consignment were Messrs Rahat & Company, Custom House Agent, Licence No.121. Acting on this information, the exporter, clearing agent and Manager (Export) namely, Syed Muhammad Ali Hashmi (Special Criminal Bail Application No.21 of 1991), Muhammad Anees and Fazlur Rehman were taken into custody. During the course of investigation, Malik Muhammad Anwar (Special Criminal Bail Application No.22 of 1991) was also arrested and after usual investigation all the five accused persons were sent up to stand trial. Both, Syed Muhammad Ali (Special Criminal Bail Application No.21 of 1991) and Malik Muhammad Anwar (Special Criminal Bail Application No.22 of 1991), who are in continuous detention since 10-3-1990 and 18-3-1990, respectively, applied for bail before the learned Special Judge (Customs and Taxation) Karachi, mainly on the ground of statutory delay, but without success. They have now approached this Court with the same prayer.
3. I have heard the learned counsel for the respective applicants and Mr. Jalaluddin Baloch, learned counsel for the State. The latter has raised no objection to the grant of bail to applicant Syed Muhammad Ali (Special Criminal Bail Application No.21 of 1991), but has opposed the bail application made on behalf of applicant Malik Muhammad Anwar on the ground that he having obtained two adjournments was responsible for causing delay in disposal of the case.
4. Admittedly the applicants are in continuous detention since 10-3-1990 and 18-3-1990 respectively. The delay in disposal of case has not been attributed to applicant Syed Muhammad Ali (Special Criminal Bail Application No.21 of 1991), but it is alleged against Malik Muhammad Anwar, that he sought two adjournments and was consequently responsible for contributing delay in disposal of this case by 13 days. The bail in respect of the applicants was also refused on the ground that in, the opinion of the learned Special Judge they are dangerous, desperate and hardened criminals.
5. The third proviso to subsection (1) of section 497, Cr.P.C., which was added by Code of Criminal Procedure (Second Amendment) Ordinance, 1979, was examined by me in the case of Miskeen Shah v. The State reported in 1990 P Cr. L J 60, wherein it was held that:--
"Inordinate delay in disposal of a case amounting to abuse of the process of law, was considered as a ground for allowing bail to the accused even in a murder case, but this exercise was controlled by the discretion of the Court concerned. The third proviso to section 497, Cr.P.C. made the ground of delay certain and the accused were extended concession of bail as of right, if the requirements of this proviso were satisfied. The case of Nazir Hussain v. Ziaul Haq, reported in 1983 S C M R 72, is relevant in this behalf. In this view of the matter the applicant who is in continuous detention of more than one year is entitled to the grant of bail as of right and not as a matter of grace. The only fact that he was found in possession of huge quantity of powder of heroin should not come in his way when otherwise he fulfils the requirements prescribed by law. Where the legislature in its, wisdom thought it proper to lay down certain conditions wherein the discretion may be exercised and those conditions are satisfied, it goes without saying that the Courts have to exercise their discretion in accordance with the will of legislature. Accordingly bail `is granted to applicant in the sum of Rs.5,00,000 (Rupees five lac) with two sureties in the sum of Rs.2,50,000 (Rupees two lac fifty thousand) each with P.R. in. the like amount to the satisfaction of learned Sessions Judge (Central) Karachi."
The word `occasioned' used in third proviso to subsection (1) of section 497, Cr.P.C. was again examined by me in the case of Amir v. The State reported in 1991 P Cr. L J 534, wherein it was observed that any legitimate request for an adjournment will not be a bar for invoking this, proviso. It was further remarked that the accused cannot be penalised due to illness of his counsel or his preoccupation in superior Courts.
6. Having regard to the above legal position, I am of the view that both Syed Muhammad Ali (Special Criminal Bail Application No.21 of 1991) and Malik Muhammad Anwar (Special Criminal Bail Application No.22 of 1991), who are in continuous detention for more than one year were not instrumental in causing delay in disposal of this case.
7. The implication of fourth proviso to subsection (1) of section 497, Cr.P.C. was again examined by me m Zulfiqar Ali and another v. The State reported in 1990 P Cr. L J 822, and it was held that the mere fact t hat some cases are instituted against a person is not enough to come to an adverse conclusion against him in respect of his character. In Gul Muhammad and 2 others v. The State reported in 1987 P Cr. L J 737, a Division Bench of this Court also took some what similar view. The case of Moundar and, others v: The State reported in P L D 1990 SC 934, also makes it clear that mere factum of registration of cases was not sufficient for purpose of the requisite opinion under the fourth proviso to subsection (1) of section 497, Cr.P.C. The present applicants are involved in one more case besides the one under consideration and consequently on this score alone they cannot be termed as dangerous criminals. Again the mere involvement in a case of drug trafficking will not IC make a person dangerous.
8. In this view of the matter, both the applicants, who are in continuous I detention for a period exceeding one year are entitled to the grant of bail. Accordingly, bail is granted to both of them in the sum of Rs.10,00,000 (Rupees ten lacs) with two sureties of Rs.5,00,000 (Rupees five lacs) each and P.R. bond in the like amount to the satisfaction of the trial Court.
By a short order, dated 14-4-1991 I had allowed both applications and these are the reasons for the said short order.
N.H.Q./M-1562/KBail allowed.