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Criminal Bail Application No.58 of 1987, decided on 8th February,1987.

-----Drugs Act (II of 1930), Ss.13-A & 14-B--Bail- Smuggling of narcotics--Vehicle by which accused and co-accused were travelling was drive by co-accused and attached-case which was found mechanical locked was unlocked by co-accused--Complicity of accused in commission of offence requiring further inquiry and case appearing distinguishable from case against co-accused Accused admitted to bail in circumstances.

Nazir Hussain v. The State 1971 S C M R 404 and 1980 SCMt' 203 ref.

---S.497--Bail--Commencement of trial--Consideration of bail, held rested on individual circumstances of case to case irrespective of fact that trial had commenced.

Applicant Zulfiqar is an accused, alongwith one Arif Raza, in Crime No.7/86 of P.S. Task Force PNCB, Karachi registered on 21-4-1986 u/ss. 13-B and 14-A of the Dangerous Drugs Act. It is alleged that both the accused were found travelling in a Pick Up bearing No.061-801, at Railway crossing, near Natha Khan Road, on that day at about 6.15 a.m. and they were intercepted by a party of Joint Task Force PNCB. Police Station North Nazimabad, Karachi headed by Ch. Faryad Hussain, on spy information that some narcotics were to be smuggled by means of that vehicle and seized from their possession an Attache case containing 71 Kgs. of Heroin powder. They were taken into custody and the case was registered against them. They have been sent up in the Session Court, Karachi (East). A bail application filed on behalf of the applicant in the trial Court was dismissed by the learned Sessions Judge by order dated 19-1-1987

The learned counsel for the applicant has contended that the prosecution case, as projected in FIR, is that the Pick Up was being driven by the co-accused Arif Raza and the Attached-case where from Heroin is alleged to have been recovered was found locked Lend it could be unlocked by only the co-accused Arif Raza and therefore possession of Heroin is not attributable to the applicant Zulfiqar Ali. According to the learned counsel, the applicant was travelling in the Pick Up, having taken lift from the co-accused and it was his misfortune that he also was involved in the case. He has placed reliance on the case Nazir Hussain v. The State 1971 S C M R 404. He has also cited some other authorities on the proposition that the liability rests on exclusive possession. The learned A.A.-G. has opposed the application contending that the applicant was found travelling in the same Pick Up and it is alleged that he was holding the brief case wherefrom the Heroin was recovered. He has also taken a plea that the case has been proceeding and question of consideration of bail does not arise and he has placed reliance on 1980 S C M R 203.

Broad facts of the prosecution case are, as stated above, that the Pick Up was being driven by the co-accused Arif Raza and the Attache-case which was found mechanically locked was unlocked by him. Of course the applicant was found travelling in tae same Pick Up. In view of the two circumstances mentioned above that the Pick Up was being driven by the co-accused and the Brief-case was unlocked by the co-accused, the complicity of the applicant in commission of crime needs further inquiry. There is no doubt that the trial of the case has commenced but the consideration of grant of bail rests on the individual circumstances of case to case. In the case cited by the learned AAG, their Lordships of the Supreme Court observed that it was not fair in the circumstance of that case to go into the merits of the case for considering the bail application. In the instant case, the case of the applicant seems distinguishable from the case against co-accused by taking broad facts into consideration. Bail is granted in the sum of Rs.50,000 with one surety to the satisfaction of Sessions Judge, Karachi (East).

M.Y.H./Z-26/K Bail granted.

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