IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No. 1702 of 2016
Criminal Bail Application No. 1862 of 2016
DATE ORDER WITH SIGNATURE OF JUDGE
For hearing of bail application.
01.03.2017
Mr. Muhammad Naseeruddin, advocate for the applicant in Cr. Bail No. 1702/2016
Mr. Muhammad Akram Khan, advocate for the applicant in Cr. Bail No. 1862/2016
Mr. Zahoor Shah, A.P.G. for State.
O R D E R
KHADIM HUSSAIN TUNIO, J:- By this single order, I propose to dispose of the above mentioned Criminal Bail Applications, as the same are outcome of one and the same FIR.
2. Applicants/accused booked by the police of P.S Ittehad Town Karachi for an offence punishable under Section 9(c) of the CNS Act, 1997, as their such request has already been declined by the learned Special Judge (CNS-1), Karachi vide order dated 04.11.2016.
3. As per FIR the complainant ASI Altaf Hussain along with his subordinate staff HC Ghulam Murtaza, PC Mohammad Muneer, PC Mohammad Aslam, PC Asif Shah and driver PC Ghulam Murtaza on government mobile, who were busy patrolling for detection of crime and snap checking. During nap checking they reached at main road near Mastana Chowk, Ittehad Town, Karachi at 1930 hours, and stopped Motor cycle Honda 125 CC bearing Registration No. KJF-6737 of black colour and apprehended accused Abdul Jabbar and Amjadullah. HC Ghulam Murtaza and PC Mohammad Muneer acted as mashirs. The complainant conducted the personal search of accused Amjadullah and recovered three bundles wrapped with yellow colour tape packed in white plastic which were weighing 3100 grams from the fold of his Shalwar and from accused Abdul Jabbar he recovered light blue colour cloth bag containing 06 bundles wrapped with yellow colour tape pack in white plastic which were weighing 6200 grams from his right shoulder.
4. Charas was taken in possession along with motorcycle. Applicants/accused were arrested, recovered charas was sealed, memo was prepared, accused and case property had brought at Police station where FIR bearing Crime No. 215/2016 was registered against the accused on 17.11.2016.
5. Mr. Naseeruddin Advocate for the applicant/accused Amjadullah contends that applicant/accused is innocent and there is no evidence against him which can connect him with the commission of alleged crime; that applicant/accused has been falsely implicated by the police in the present case due to previous enmity as father of the applicant/accused had filed Constitutional petition before this Court against the police of P.S Ittehad Town. He also contends that none from the public has been joined as mashir to witness the recovery; that the statement of co-accused has no value and same is not admissible in evidence according to Article 38 of the Qanun-e-Shahdadat Order; that no documentary evidence has been produced against the applicant/accused; that no recovery has been effected from the possession of the applicant/accused; that the charas has been foisted upon the applicant/accused; that the applicant/ accused is behind the bars since last seven months and trial has not yet been commenced.
6. Learned counsel has cited cases reported as (PLJ 2014 Peshawar 700), (2014 P.Cr.L.J. 482), (2014 YLR 188), (2000 P.Cr.L.J. 891), (2006 MLD 1961), (2013 YLR 1840), (2014 YLR 383), (2014 MLD 723), (2016 P.Cr.L.J. 975) and 2012 SCMR 573. However, Mr. Muhammad Akram Khan Advocate for the applicant/accused Abdul Jabbar in Cr. B.A.No. 1862 of 2016 has adopted the same arguments advanced by the learned counsel for the applicant/accused Amjadullah.
7. On the other hand, Mr. Zahoor Shah learned APG on behalf of state has urged that huge quantity of charas has been recovered from the possession of the applicants/accused; that there is sufficient material to connect the applicants/accused with the offence with which they are charged; that the applicants/accused have no proof of direct enmity with the complainant and witnesses of the present case; that constitutional petition was filed against the police of different police stations of District Karachi West; that the name of the complainant and witnesses of present are not disclosed in said constitutional petition.
8. Perusal of record would transpire that the applicants/accused were apprehended at the spot and huge quantity of narcotics were recovered from their possession; the whole quantity of recovered narcotics was sent to the laboratory for analysis as “Charas” by the chemical examiner, whose report is available in police file; that punishment of the offences also falls within the prohibitory clause of section 497 Cr.P.C. Further CNS Act 1997 consolidates and amends the law relating to narcotic drugs and psychotropic substances. It controls and prohibits the prosecutions, processing and trafficking of these substances. It also lays progressive punishments for narcotic offences. It provides for the constitution of Special Court having exclusive jurisdiction to try 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 narcotics where the offence is punishable with death. When the quantity of narcotics exceeds one K.G, the case falls in clause (c) of Section 9 of the Act, for which, death penalty or imprisonment of 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.
9. In the larger interest of public and state demand that in case of huge recovery of narcotics, the discretion under Section 497 of the Code of Criminal procedure should not be exercised liberally. Generalizations on matters which rest on discretion and an attempt to discover formula of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are like on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. However, still the discretion must be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher Courts.
10. The Apex Court in the case reported as The State vs. Javed Khan (2010 SCMR 1989) has made the following observations in a narcotic case:-
“4. Having gone through the above provisions of law, we do not feel persuaded to agree that the case of the petitioner will not fall within prohibitory clause of section 497, Cr.P.C, but it shall be covered by section 9(c), providing for various sentences as reproduced above, which not only squarely fall within prohibitory clause of section 497 Cr.P.C but also attract the bar contained in section 51(1) of the Act of 1997, specifically made applicable to those offences which, inter alia, provide for punishment of death sentence. For ease of reference, the said provision of law is reproduced as under:-
“51(1). Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898) 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 law makers have provided some special provision in the statute to bar the jurisdiction of special Court established under the said enactment, due weight is to be given to such special provision of law as against general principles governing such cases, when accused approaches the Special Court or the High Court for grant of bail, as in the instant case.
5. Looking to the admitted facts of the case of respondent and the above discussed clear legal position, the approach of Hi9gh Court in releasing the respondent on bail on the above referred ground, seems to be arbitrary, without application of mind and, contrary to settled principles of law, thus unsustainable.”
11. Similarly, in the case of Ayaz Pathan vs. State ( 2013 YLR 2560), wherein the learned Bench while dismissing the bail application in a case registered under Section 9(c) of the CNS Act has made the following observations:-
“In this case prosecution witnesses had no any enmity whatsoever with the applicant to foist such a huge quantity of nine kilograms of Charas upon him. Chemical Examiner report regarding recovered Charas was found positive, it is proved that substance recovered from the applicant was Charas; therefore, the prosecution discharged its initial onus while proving that the substance recovered from him was contraband Charas. There is sufficient material available on record which shows that the applicant was found sitting on front seat of the vehicle and he was found responsible for transportation of narcotics. The defence plea propounded by the applicant that the narcotic was not recovered from his possession is not true. Proper reading of the evidence on the record and the factual concluding drawn by the learned trial Court while deciding the earlier bail application are not shown to suffer from any misreading or non-reading of evidence. The alleged offence is heinous one, falling within prohibitory clause. So far as the contention of the learned counsel for the applicant that respectable inhabitants of the locality did not associate as a witness or mashir is not attracting in view of section 25 of the Control of Narcotic Substances Act, 1997. The applicability of section 103, Cr.P.C has been excluded in the cases of recovery of narcotics.”
12. The present case is on the same facts and circumstances. Applicants/accused as per contents of FIR were apprehended along with motorcycle and nothing is available on record to show that they were not present at the time of commission of alleged offence. In absence of such plea at this stage, it would be presumed that the applicants/accused were in league with each other and charas weighing 3100 grams and 6200 gram respectively were recovered from their possession for which punishable falls within the prohibitory clause of Section 497 Cr.P.C.
13. The Honourable Superior Courts observed in numerous cases that the deeper appreciation of the record at bail stage cannot be gone into but only it is to be seen as to whether the accused is prima facie connected with the commission of the offence or not. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use is the hall mark of a prudent exercise of judicial discretion. One ought not to make it a question of exercise of authority to grant bail in every narcotic case on the ground of ‘further inquiry’ and ‘conscious knowledge’ in disregard to the settled principles of law for grant or refusal of bail.
14. The Honourable Apex Court has observed, while considering the offences punishable under the CNS Act to be heinous in nature against the society at large, in the judgment in the case tilted Socha Gul vs. State 2015 SCMR 1077, as under :-
It is pertinent to mention here that offences punishable under C.N.S. 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 C.N.S. Act of 1997 before enlarging an accused on bail in the ordinary course. When we refer to the standards set out under section 497, Cr.P.C. for grant of bail to an accused involved in an offence under section 9(c) of C.N.S. Act of 1997, 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 narcotic substance, being four kilograms. Firstly, as deeper 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 (supra) 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.
15. In view of above position, discussion and circumstances, the applicants/accused failed to make out their case for grant of bail accordingly. Consequently, their bail applications were dismissed on 01.03.2017.
These are the reasons for the short order announced on 01.03.2017.
03.03.2017
Zahidbaig