ORDER
SHEET
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Date Order
with signature of Judge
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Date of hearing 14.10.2015
Mr. Inamullah Advocate for the Applicant.
Mr.
Muhammad Iqbal Awan APG.
SYED HASAN AZHAR RIZVI J; By this order I intend to dispose of instant Criminal
Bail Application filed by the Applicant/accused Zar Bibi wife of Noor Muhammad.
Learned Counsel for the
Applicant contended that the applicant is innocent and has been falsely
implicated in the case due to malafide intention and some ulterior motives. Learned
Counsel for the Applicant further contended that violation of section 103
Cr.P.C. is made as no private witness was cited in mashirnama of arrest and
recovery when the place of incident is thickly populated area. Learned counsel
urged that the there is no direct evidence against the Applicant to connect her
in commission of Narcotic offence therefore, she is
entitled for grant of bail. He further contended that no specific role has been
assigned to the Applicant by the prosecution in commission of alleged offence
and due to enmity with police the applicant/accused has been nominated in
alleged FIR. Learned Counsel further urged that Applicant has no criminal
history and nothing to do with alleged offence. Learned Counsel for the
Applicant urged that co-accused has already been granted bail therefore,
present Applicant is also entitled for concession of bail following the rule so
consistency. He has relied upon 2014 SBLR 1464, 2014 SBLR 439, 2014 SBLR 1514,
2014 YLR Sindh 188, 2012 SCMR 573, 2009 SCMR 954, 2011 YLR 1723, 2009 P.Cr.L.J.
315 and 2014 MLD 1323.
Learned APG vehemently opposed the grant of bail to
the Applicant and submits that present Applicant was arrested red-handed at the
spot and charas and heroin were recovered from her possession, which were sent
to chemical examiner and report were received in positive. He has relied upon
2015 SCMR 1077 and 2003 SCMR 1327.
Heard Mr. Inamullah Advocate for the Applicant, Mr.
Muhammad Iqbal Awan APG for the State and perusal the record as well as
citations with their assistance.
On tentative assessment of the material available on
record, it appears that the present Applicant was arrested at the spot and
recovery of One kilogram charas and 1 kilogram heroin were affected from her
possession, which were sent for chemical analysis within stipulated time and
vide Chemical Examiner’s report Lab/-No.14171 dated 17.08.2015 the recovered substance were heroin
and charas therefore, report was positive. No illegality or irregularity has
been pointed out by the learned Counsel for the applicant in sending the
recovered contrabands to the chemical examiner and even no enmity, ill-will or
grudge has been alleged against the police/complainant to falsely implicate the
applicant in the present crime.
The contention of the learned Counsel for the
Applicant that the co-accused has already been granted bail therefore, present
Applicant is also entitled for grant of bail following the rule of consistency.
This
contention advanced by the learned counsel for the accused, in my humble
opinion is devoid of any force for the simple reason that in criminal
administration of justice, the case of each and every accused is different from
the case of co-accused and it could not be said that the case of Applicant/accused
is identical to the case of the other accused persons.
Other contention of the learned Counsel for the
Applicant that there is violation of section 103 Cr.P.C. as no private person
was cited as mashir at the time of recovery is concerned, from bare reading of
sections 20, 21, and 25 CNS Act, 1997 it reflects that the objections raised by
the learned Counsel for the Applicant about non-compliance of sections 20, 21
and 25 CNS Act, 1997 as well as provision of section 103 Cr.P.C. are
misconceived in fact and law. The Full Bench of Honourable Supreme Court has
held in the case of Zafar Vs. the State reported in 2008 SCMR 1254 that:-
“As
to the arguments of non-performance of provisions of section 103 Cr.P.C. it
would be appropriate to refer to section 25 of C.N.S.A. which is reproduced
hereinunder:-
“25.
Mode of making searches and arrest.--- The provisions of the Code of
Criminal Procedure, 1898, except those of section 103, shall mutatis mutandis,
apply to all searches and arrests in so far as they are not inconsistent with
the provisions of section 20, 21, 22 and 23 to all warrants issued and arrests
and searches made under these sections.”
It would mean that applicability of section 103,
Cr.P.C. in the narcotic cases has been excluded and non-inclusion of any
private witness is not a serious defect to vitiate the case of the prosecution.
It is pertinent to
mention here that offences punishable under C.N.S. Act 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 statue 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. Such observations find supports from the case of Socha Gul
versus the State reported in 2015 SCMR 1077. Therefore, I am not inclined to
believe the version of the Applicant as sufficient material is available on record which prima facie connect the present Applicant in
the instant crime.
Cases law cited by the learned counsel for the
applicant in my humble opinion are distinguishable from the facts and circumstances
of the present case as such those are not applicant to it.
Above are the reasons of my short order dated 14.10.2015
whereby present bail application was dismissed with direction to the Trial
Court to conclude the trial within (45) days from receipt of the order.
The observations made
are of tentative nature and the Trial Court shall not be influenced by any of
such observations.
Karachi J
U D G E
Dated:_________________