Criminal Bail Application No. 04 of 2016

Date Order with Signature of the Judge

For hearing of bail application.

Heard on : 02.06.2016

For Applicant : Mr.Naveed Baloch, Advocate.

For State : Mr.Muhammad Javed K.K.Standing Counsel

For complainant : Ms. Dilharam Shaheen, Advocate

On Court Notice : I.O.Aijaz Ali Khoso,

>>>>>>> <<<<<<<

SYED MUHAMMAD FAROOQ SHAH, J.:- Applicants, Abdul Khair and Muhammad Akram seek bail after arrest in case Crime No.ASO-146/2015 registered at Police Station Customs, Karachi under section 6/9-C of Control of Narcotics Substance Act, 1997 as the earlier bail application filed by the applicants before the Special Court-II (CNS) Karachi was rejected by order dated 22.12.2015.

2. Brief facts of the case are that preventive office Shahzad Zubair of Customs, Karachi lodged the FIR on 30.9.2015 at Anti-Smuggling Organization (HQ), NMB Wharf, Karachi and alleged that an information was received that contraband charas would be transported from Quetta to Karachi through a passenger bus bearing registration No.PB-0033, Millat Coach, therefore, surveillance was started at Mochko Check Post, RCD Highway, Karachi and on 30.9.2015 at about 0915 hours said passenger bus arrived at Mochko Check Post, which was intercepted and search was conducted in presence of Mashirs namely Sepoy Azizullah Khan and Sepoy Anwar, which resulted in recovery of contraband Charas packed in polypropylene bag, which was secreted in an iron box (tool box) placed behind the driving seat of the bus. The driver identified as Abdul Khair and Muhammad Akram as Conductor, when they were asked about the recovery of charas, they failed to utter any word in reply, therefore, the passenger buss alongwith polypropylene bag containing 9 lumps/slabs of charas taken into possession, driver and conductor were also taken into custody under memo prepared at the spot and the said bus alongwith contraband stuff escorted to the ASO, HQ, NMB Wharf, Karachi. The total weight of 9 slabs of charas was 9 Kgs, which were wrapped with polythnee adhesive tape, 27 representative samples of 10 granms each approximately were drawn i.e. three samples from each slab from entire quantity of charas for the purpose of chemical analysis. Separate inventory showing quantity/weight of each lump/slab was also prepared under the signatures of said mashirs, hence this FIR was lodged.

3. Arguments advanced by learned counsel and learned Standing Counsel are considered and record has also been perused.

4. Learned counsel for the applicants 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 though passengers were available in the bus. The next ground for bail urged by the learned counsel is that the contrabands were not recovered directly from the possession of applicants rather it was recovered from the tool box to which applicants have no concern as they were not the driver and conductor of said bus. It is contended that the applicant are the only bread winner of their entire families and due to their detention their families are facing days of starvation. He further contended that entire allegations are concocted and self-managed just to harass and humiliate the applicants. Lastly, learned counsel for the applicant prayed that applicants may be admitted to bail as the applicants are not previously convicted, hardened and disparate criminal. To support his contentions learned counsel for applicant placed reliance upon the cases of SAID HAKIM V/S THE STATE (2013 YLR 1390), MUNEER V/S THE STATE (2014 MLD 723).

5. Conversely, the learned Standing Counsel supported impugned order and contended that the applicants were driver and conductor of the bus and tool box from where the contrabands were recovered was in the exclusive use of applicants as such it cannot be held that they have no knowledge about it. Learned Standing Counsel while opposing the concession of bail to the applicants, submitted that the provision of section 103 Cr.P.C is not applicable in view of section 25 of the CNS Act. Learned Prosecutor submitted that at the bail stage the deeper appreciation of facts 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 case reported as NASIRUDDIN ABBAS V/S THE STATE (2005 UC (Supreme Court) 395.

6. Learned counsel for the complainant while adopting the arguments of leanred Standing Counsel opposed the grant of bail to the applicants and placed reliance upon the case of Ms. SABIR KHAN V/S THE STATE (2007 YLR 904).

7. The globalization of drug abuse has become one of the gravest problems confronting humanity. The world, at large, has waged an admirable war against drugs. Many developed and under-developing countries have achieved remarkable results by making huge investments to check narcotics trafficking while simultaneously reducing the in-house demand for illicit substances. The CNS Act, 1997 controls and prohibits the prosecution, processing and trafficking of these substances. It also lays progressive punishments for narcotic offences; section 51 of the Act provides that bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death. When the quantity of narcotics exceeds one kilogram, the case falls in Clause (c) of Section 9 of the Act, for which death penalty or imprisonment for life has been provided. Similarly, the discretion under Section 497 Cr.P.C can also not be exercised with regard to offences punishable with death or imprisonment for life unless the Court at the very outset is satisfied that such a charge appears to be false or groundless.

8. In the present case, 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. 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.

9. Apart from above, the Hon'ble Supreme Court of Pakistan in the case of SOCHA GUL V/S THE STATE (2015 SCMR 1077) has observed that:

“offences punishable under CNS Act of 1997 are by its nature heinous and considered to be the offences against the society at large and it is for this reason that the statute itself has provided a note of caution under Section 51 of CNSA before enlarging an accused on bail in the ordinary course. When we refer to the standard set out under section 497 Cr.PC, for grant of bail to an accused involved in an offence under Section 9 CNSA, even on that basis we find that an accused charged with an offence, prescribing various punishments, as reproduced above, is not entitled for grant of bail merely on account of the nature or quantity of narcotics and that appreciation of evidence is not permissible at bail stage and secondly in such situation, looking to the peculiar features and nature of the offence, the trial Court may depart from the normal standards prescribed in the case of “Ghulam Murtaza Vs The State” (PLD 2009) and award him any other legal punishment, thus in our opinion, ratio of judgment in the case of Ghulam Murtaza (supra) is not relevant at bail stage.”

10. In view of whatever mentioned above by taking a tentative assessment of the available record, the accused/applicants are prima facie connected with the commission of offence and are thus not entitled to the concession 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.

11. 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