MAJID BALOCH S/O MUHAMMAD MOOSA BALOCH (Applicant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH AT ITARACHI

Befort:: Mr. Mohammed Karim Khan Agha-J' Cr. Bail Application No' 762 of 2Ol7

Majid Baloch s/o Muhammad Moosa Baloch

Vs.

The State

Date of hearing: 20.6.2017 Date of Order 23.06.2017 Applicant Tl-rrough Mr Ajab Khan Khattak, Advocate.

State Through Ms. Firdous Far idi, S.P.P. a/w Shahzad Wasti IO Custo mDe artment

ORDER

Mohammad Karim Kha NA ha J: The applicant/accused namely, Majicl Baloch son of Muharnmad Moosa Baloch L through the above bail application has sought post arrest bail in F.l.R. No.DECO2/ 17 registered under Section 6/9-8, PS Custom.

2.Brief facts as narrated in the F.I.R,, are that the complainant SPO Syed Wasim Shah rvas performing his duqv at International Departure Hall, JIAP, Karachi on the intervening night of 23'd I 24th February, 2OI7 when two passengers namely Mohammad Imran and Majid (the applicant) S/o Moharnmad Moosa tsalouch having Pakistan Passports and leaving for Colombo througl-r Air Lanka Flight No.UL-1184 carrying baggage and upon asking if they were carrying any contraband narcotics irr their luggage responded in the negative. Being dissatisfied with such response tJ:e v7

Complainant examinecl three soft top trolley suitcases of Danasty brand blue' browu and red color and one hand trolley bag Danasty brand black color and one hand trolley bag Triden brancl black color in presence of trvo witnesses namely Irfan Asghar and Mohsin Malik, SPOs and the frames r{ of above trolley suitcase and hand trolley bags were pierced with a sharp tool which showed light brown heroin powder cleverly concealecl in the pipe frame tlf trolley suitcases and hand trolley bags after \,vrapping it in cellophane and all the suitcases ancl hand trolley bags whicl-r resulted in the recovery of light brorvn heroin porvder which upon weighing was found 93O grams (net)'The recovered heroin powder u'as instantly tested with a Narcotic Testing Ifit which gave positive inference and three representative samples each u,eighing 10 grams were '.r'ithdrawn aucl sealcd for the purpose of chemical analysis whereas all the remaining stuff was seized under a proper memo' Investigation 14'aS l'.

entrusted to SPO Shahzad Wasti

3.After usual ir-rvestigation, the challan was filed agaitrst both the accusecl persons narnely Mohammad Imran and Majid (the applicant) s/o Moharnmad Moosa Balouch and the matter is nou' pending Lrefore the trial court.

4.In essence the applicant contended that the applicant was entitled to post arrest bail as there was no recovery from the applicant, that or-rly 3 samples of 10 grams each had been taken as samples lrorr the recovered atnottnt rvhich had not been properly separated, ttrat the case based on the weightage fell within the non prohibitory clause as per ell

sentencing guidelines laid down in Ghulam Murtaza's case and as such for all the above reasons the applicant was entitled to be granted post arrest bail. In support of his contentions learned counsel for the applicant pla,ced reliance on Ateeb ur Rehman @ Attt Mochi v. The State and others 4 (2O16 SCMR 1424), Ghulam Murtaza and another v. The State (PLD. 2009 Lahore 362)

5.On the other hand learned special prosecutor for customs vehemently opposed the grant of post arrest bail to the applicant and stressed that the applicant had been caught red handed, the substance concerned was heroin and the chemical report had proved positive and as such there was more than sufficient material on record to connect the applicant to the offense for which he had been charged' In support of her contentions learned special prosecutor has placed reliance on Nnzar Hussaln v. The State (2OO7 YLR I 1601 Ikrachi) and Muhammad Slddtque v. Imtlaz Begum and 2 others (2002 SCMR 442).

6.I have considered the argunrents of the learned counsel for the applicant and special prosecutor for custonts, perused the record and considered the relevant case lavr.

7.I am of the considered view that the applicant has not made out a case for post arrest bail for the following reasons;

that the applicants bail before ttre trial court has already been dismissed by a well reasoned order dated 03-05-2017 which requires no interference with; that at the bail stage only a tentative assessrnent of the material is permissible and not a deep rrppreciation of the saure and as such the question

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of the anloulrt of sample cannot be gone into at this stage as it requires a deeper appreciation of the evidence; that the applicant was caught red handed at the airport attempting to smuggle heroin in an ingenious manner which is a grave crime especially as he was traflicking the heroin abroad

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which would have brought both dishonor and disgrace to the Country; that the recovery was made at the airport concealed in luggage and thus there is no chance that the narcotic was foisted on him; that no enmity has been alleged between the customs officials and the applicant; that the chemical report has proved positivei that with regard to the question of joint

recovery this is permissible utrder the law as was held in Nazar Hussaln's case (Supra); that with regard to the offense falling within the non prohibitory clause I am of the view'that as per findings of the Supreme Court in the case of Socha Gul V The State (SCMR 2015 LO77) (which distinguished -l. Ghulam Murtaza's case (Supra) in terms of the use of the sentencing guidelines for the grant of bail) and held that bail should be granted sparingly iu narcotics cases bearing in mit:d Sectiou 5l of the Control of Narcotic Substances Act 1997 ancl the fact that as per Socha Gul's case (Supra) the offense amounts to a crime against eoclety the appellant is r-rot entitled to bail based on the particular facts and circumstances of this case despite the case falling within the non prohibitory clause. This is because this is a borderline casc v,'here the recovery is only 70 grams below the prohibitory clause tl-rreshold and the heroin has most probably attempted to have been smuggled/trafficked at such a level in or<1er to clelilterately avoid the consequences of Section 9 O CNSA which rvould have brought into play the

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prohibitory clause especially as it appears that the applicant is a frequent traveller to Sri Lanlca and o{.her countries and most probably a regular Crug smuggier/traflicker and as such such practices must be discouraged which have the potential to bring disgrace and dishonor to the Country and \ as already rnentionecl is a heinous offense which is also a crime agalnst soclety. Furthermore, as mentioned above as per Socha Gul's case (Supra) the Ghulam Murtaza caee (Supra) guidelines on sentencing are iro longer applicable at the bail stage.

8.As such for the above reasons the applicant's application for post arrest bail is dismissed g. However, I note that the applicant has been in custody for aror,rnd 2 rrronths and that the charge has not as yet been framecl against him and there are only 3 PW's in this case and as sttch I clirect the trial court to decide this matter

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within 3 months of the date of this order. The office is directed to immediately send a copy of this order to the concerned trial court for compliance.

10.Needless to say that this order shall have no effect on the trial proceedings which will be decided on merit by the learned trial judge based upon the evidence placed before it.

1 1. The trail application stands disposed of in the above terms.

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