ORDER SHEET
-------------------------------------------------------------------------------------------------------------------
Date Order
with signature of Judge
-------------------------------------------------------------------------------------------------------------------
DATE OF HEARING 27.10.2015
Mr.
Mohammad Ibrahim Sahito, Advocate for the Applicant.
MR. Iqbal Awan APG for the State.
Syed Hasan Azhar Rizvi J; Applicant/accused has approached to this court after
rejection of his Bail Application by the Special Court-II (C.N.S.) Karachi in
Special Case No.490/2015 on 19.09.2015.
Learned Counsel
for the Applicant contended that the Applicant is innocent and has been falsely
implicated by the police in the present case. Learned Counsel for the Applicant
further contended that nothing was recovered from the Applicant and alleged
charas has been foisted upon the Applicant due to ulterior motive. He urged
that the there is violation of section 103 Cr.P.C. as no private witness was
taken by the police as mashir at the time of recovery of charas. According to
learned Counsel the case has been challaned therefore,
the applicant is not more required for further investigation. He prayed to
enlarge the applicant on bail at this stage as the case of the Applicant is of
further inquiry.
Learned APG
vehemently opposed the grant of bail to the Applicant and submitted that huge
quantity of charas weighing 4.680 kgs of charas was recovered from the
Applicant. He further submitted that the case against the Applicant falls under
section 9(c) of CNS Act, 1997 and report of Chemical Examiner is in positive
therefore the applicant is not entitled for grant of bail.
I have
heard Mr. Mohammad Ibrahim Sahito, Advocate for Applicant, Mr. Iqbal Awan, APG for the State and perused the material available on
record with their assistance.
On
tentative assessment of the material available on record, it appears that at
the time of arrest of the Applicant 4.680 kilograms charas was recovered from
his possession and whole recovered contraband was sent to Chemical Examiner for
analysis and report was in positive. The
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.
Above are the reasons of my short order dated 27.10.2015
whereby present bail application was dismissed with direction to the Trial
Court to conclude the trial within Sixty (60) 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.
J
U D G E
Karachi
Dated _________________