Criminal Bail Application No. 1626 of 2015
Date Order with Signature of the Judge
For hearing of bail application.
Heard on : 11.05.2016
For Applicant : Mr. Ali Asghar Buriro, Advocate.
For State : Mr. Shafiq Ahmed, Sp.Prosecutor ANF.
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SYED MUHAMMAD FAROOQ SHAH, J.:- Applicant, Hayat son of Aalodoo seeks bail after arrest in case Crime No.D-030707215 registered at Police Station ANF, Muhammad Ali Society, Karachi under section 6/9-C of Control of Narcotics Substance Act, as the earlier bail application filed by the applicant before the Special Court-I (CNS) Karachi was rejected by order dated 26.11.2015.
2. Brief facts of the case are that on 27.10.2015, at about 1900 hours, complainant, Inspector Naeem Khan of Police Station ANF, Muhammad Ali Society Karachi lodged his report on behalf of the State stating therein that on receipt of information from special informer that in the area of Ibrahim Hyderi a notorious narcotic seller Hayat son of Aloodu(applicant) near last Stop of Bus H-2, main bazar Ibrahim Hyderi, Karachi is openly selling narcotics and if immediate action will be taken then arrest and recovery of narcotics will be sure. Thereafter he prepared a raiding party consisted upon himself, HC Wahab Khan, HC Muhammad Ibrahim, PC Maqbool Ahmed, PC Riaz, Sep-Juman, Sep Ashraf, PC Mehboob and other ANF staff, under the supervision of Assistant Director/Inchage of Police Station Shoaib Saqib, duly armed with official weapons on government vehicle, driver Liaquat alongwith Spy informer, left the Police Station vide Roznamcha entry No.8 at 1700 hours and on the pointation of special informer they at 1735 hours reached near last stop of Bus H-2 and saw one person having blue colour shopper in his right hand was present in suspected condition, and special informer pointed said person to be Hayat who on seeing ANF raiding party tried to run away but they apprehended him. He requested the passerby peoples to act as witness but they avoided to act as witness due to fear of enmity with narcotic sellers. Then he cited PC Meboob and PC Riaz as mashirs inquired name from the accused who disclosed his name to be Hayat son of Aloodu by cast Mallah resident of Haji Bakhar Bakery Safyani Muhallah Irbrahim Hyderi, Malir Karachi. He then in presence of Mashirs secured blue colour shopper form the possession of accused opened the same and recovered Charas lying in different colour panni covered with transparent plastic thelies. He counted the same which becomes 220 thelies of Charas. He weighed same thelies of Charas with electronic scale which becomes 1100 grams gross. He also recovered Rs.250 from right side pocket of shirt of accused then he arrested the accused and prepared such Mashirnama of arrest and recovery on the spot and obtained the signatures of mashirs on it and also on sealed parcel. The arrested accused was brought at the police station where FIR was lodged.
3. Arguments advanced by learned counsel and Special Prosecutor ANF are considered and record has also been perused. Learned counsel for the applicant argued that there is violation of section 103 Cr.P.C. as no private person associated to act as Mashir of recovery and arrest of the applicant. The next ground for bail urged by the learned counsel is that as per FIR the net weight of the said contraband is 1100 grams which also touches to the border line of section 6/9-C and 6/9-B of the Act which does not fall within the prohibitory clause of section 497(1) Cr.P.C. He further contended that the applicant is a social worker in the area and he is working with a Social worker against the narcotics dealers; the complainant has involved him in this false and fabricated false on the instance of narcotics dealers and the complainant has relations with the narcotics dealers. Lastly, learned counsel for the applicant prayed that applicant may be admitted to bail as the applicant is not previously convicted, hardened and disparate criminal. To support his contentions learned counsel for applicant placed reliance upon the cases of ABDULLAH V/S THE STATE (2012 MLD 1171), MST. NASEEBAN V/S THE STATE(2012 P.Cr.L.J.869) andYOUNAS KHAN V/S THE STATE & ANOTHER( 2013 MlD 48).
4. Conversely, the learned special prosecutor ANF opposed the concession of bail to the applicant on the ground that the evidence of police officials is reliable. He also submitted that the provision of section 103 Cr.P.C is not applicable in view of section 25 of the CNS Act. Learned Prosecutor has emphatically submitted that it is settled that at the bail stage the appreciation of facts in depth cannot be considered and the Court at the bail stage has to look into the material available on the record, to determine the involvement of the accused in the commission of offence. To support his contentions he has placed reliance on the cases reported as SOCHA GUL V/S THE STATE (2015 SCMR 1077) and NASIRUDDIN ABBAS V/S THE STATE (2005 UC (Supreme Court) 395.
5. No enmity, ill-will or grudge has been alleged against the prosecution witnesses; on the contrary, sufficient material has brought by the prosecution on the record including report of chemical examiner relating to positive report of narcotic substance. So far as the contention of the learned counsel for applicant that the recovery was not witnessed by persons from public, it may be observed that section 25 of CNS Act excludes the application of section 103 Cr.P.C.
6. Whatever mentioned above, I reached at the irresistible conclusion that the applicant is not entitled to grant of bail. Consequently, the instant bail application is dismissed. However, the trial Court is directed to expedite the trial and conclude it at an earliest, preferably within a period of two months, after receipt of this order.
7. Before parting, it needs not to make clarification that the observations recorded above are tentative in nature, therefore, the trial court shall not be influenced in any manner whatsoever.
*Aamir/PS* J U D G E