ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Bail Appln. No.S-299  of  2009,

DATE OF HEARING

ORDER WITH SIGNATURE OF Hon’ble’BLE JUDGE

13.7.2009.

1. For orders on office objection.

2. For hearing.

Mr.  Ashique Illahi Sundrani, advocate for the applicant.

Mr. Naimatullah Bhurgri, State Counsel.

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                   This is a bail application filed by accused Muhammad Ajmal Pathan seeking the bail in crime No.01/2009, registered at Excise P.S Kashmore on 4.2.2009, for offence punishable under Sections 6, 8, 9(c) of the C. N. S. Act, 1997.

                   Brief facts of the prosecution case as disclosed in the F.I.R by the complainant Excise Inspector Muhammad Ayoub Buriro of Excise P.S Circle, Kashmore may be reads as under :-

                   “The complaint on behalf of government is made that today on 4.2.2009 I Muhammad Ayoob Buriro, Inspector Excise department, Kashmore Circle, with my subordinate staff namely each of EC Sikandar Ali EC Kamran Ali, EC Azizuzllah, EC Muhammad Hayat, EC Shahzad Ahmed, EC Bashir Ahmad and VID Ranjhan in company vide roznamcha entry No.3, dt.3.2.2009 according to spy informer under the subordinate of ETO Qurban Ali Shaikh Kashmore in government vehicle/Mobile in government worty and arms ammunition left police station, when we reached at place of incident Naitonal Highway near Deramore Sadabahar Hotel Kashmore.  After some time the informed passengers coach given by spy was coming from Sarhad Province Punjab side.  We gave signal for stopping it.  We saw its registration No.E-7657/Peshawar and passengers were boarded in it.  Out of them driver and two other persons who were concerned with coach were boarded off and were inquired about their names/identity.  Out of them driver disclosed his name Mir Rais Khan s/o Saeedullah Khan Pathan, r/o Tijori, Taluka and district Laki Murawat Sarhad Province, and second person who disclosed him to be cleaner of coach told his name Muhammad Ajmal Khan s/o Fakir Ajab Khan Pathan r/o same address and third person who declared him to be owner of coach told his name Sabz Ali s/o IMaidan Khan by caste Bitini Pathan r/o Shahdi Khan Tijori, Taluka and district Laki Murawat, province of Sarhad.  According to rules of Excise department they were informed and thereafter two Mashirs EC Sikandar Ali and EC Azizullah Pathan body of Rais Khan Pathan was searched and secured NIC original and Rs.800/- from side pocket of shirt and from search of Muhammad Ajmal Pathan original NIC and Rs.700/- were secured from owner of coach namely Sabz Ali Pathan during search photo copy of NIC, Rs.15300/- and registration book of coach in the name of Hamayoon Khan s/o Abdullah Khan r/o Haji camp GT road Peshawar were secured from side pocket of the shirt.  Thereafter, search of coach was made and found over roof of coach in cabin under beds, some bundles, and amuneration found 12 bundles of white colour and 56 of brown colour total 68 bundles.  We open and noticed charas in it, all bundles were weighed and each was of 1250 grams and total charas was 85 kilograms.  Out of it, 3 bundles from white colour and 8 bundles with gray colour were sealed white bag of plastics, for sending same to chemical examiner and other bundles were separately put in three white plastics bags and thereafter sealed the same.  And 19 bundles were put in one white plastics bag.  Thereafter remaining passengers were sent for journey.  The accused were arrested, possession of coach No.E-6757 Peshawar was taken which was of light colour, such mashirnama was prepared accordingly at the place of incident. The mashirs read over the same and after admitting the contents of it put their signature, the signatures were also put over secured property.

                   That, thereafter coach in custody and secured property and the accused were brought to police station (Excise) and Rozznamcha entry of arrival No.1/4.2.2009 was kept on record and complaint against accused on behalf of state was registered U.Ss 6, 8, 9 (c) CNS Act, 1997.”

                   After usual investigation challan was submitted on 17.4.2009 against accused Mir Raees Khan, Muhammad Ajmal and Sabz Ali, while remaining accused were shown as absconders in the charge-sheet.

                   I have heard the learned Counsel for the applicant and the learned State Counsel at some length.

                   Mr. Ashique Illahi Sundrani, learned advocate for the applicant/accused has contended that the applicant is innocent and he has falsely implicated in this case.  Eighty-five (85) kilograms charas has not been recovered from the possession of the applicant.  He further added that applicant had no knowledge regarding the narcotics and he was also not the beneficiary of the contraband narcotics.  He further added that no passenger or independent mashir of recovery has been cited in the challan and the applicant/accused was not cleaner of the vehicle, but he was passenger.  He further contended that this Court has ample power to grant the bail if the Court comes to the conclusion that there is doubt about the involvement of the accused in the commission of the alleged offence.  Learned Counsel has placed reliance on the following case law :-

i) Jamshaid Ali versus The State (1990 P.Cr.L.J. 1175),

ii) Daniel Boyd versus The State (1992 SCMR 196),

iii) State versus Qaim Ali Shah (1992 SCMR 2192),

iv) Ghani-ur-Rehman versus The State (1996 P.Cr.L.J. 347 Peshawar),

v) Minhaj versus The State (2004 P.Cr.L.J. 1992),

vi) Noor Muhammad versus The State (SBLR 2007 Sindh 1029),

vii) Syed Afzal Ali versus The State (SBLR 2009 Sindh 588),

viii) Muhammad Saleem Khan versus The State (SBLR 2009 Sindh 975),

                   Conversely, Mr. Naimatullah Bhurgri, learned State Counsel, strongly opposed the application.  He has argued that the complainant Inspector Muhammad Ayoob Buriro and mashirs of the recovery have fully implicated the applicant in the commission of the alleged offence.  The applicant was cleaner of the vehicle and he had knowledge regarding transportation of the charas in the vehicle.

                   I have heard the learned Counsel for the parties and perused the material available on record including the F.I.R, mashirnama, 161 Cr.P.C statements of the P.Ws, positive chemical report and other material available on record. 

                   On tentative assessment of the material available on the record, it appears that all the P.Ws have clearly stated during the investigation that applicant Muhammad Ajmal was cleaner of the vehicle in which contraband narcotic was transported.  Regarding associating the police witnesses and non-associating the private witnesses, Section 25 of the CNS Act, 1997, has imposed bar, hence Section 103, Cr.P.C is not applicable in narcotic cases.  Reference can be made to the case of Muhammad Hanif versus The State (2003 SCMR 1237).  The Hon’ble Supreme Court of Pakistan in the case of Afzal Ahmed versus The State (2003 SCMR 573), has been pleased to dismiss the bail application in case where only 600 grams contraband was recovered.  Plea of the applicant that he was passenger and not cleaner and all the points which have been raised by the learned Counsel have also been agitated before the learned trial Court, who has dismissed the application on 9.5.2009.  Relevant observations of the learned trial Court are reproduced as under:-

“Plea of the applicant/accused that he was passenger not cleaner requires deeper appreciation of the evidence, which is not possible at this stage.  Prima facie, there is sufficient material against the applicant/accused to connect him in this case. Huge quantity of the charas has been recovered in this case.  It is difficult for the Excise officials to foist huge quantity of charas upon the accused persons.  It is observed with deep concern that Narcotics has spoiled future of most of the young generation.  Therefore, the persons involved in the Narcotics deserve no leniency.  Alleged offence is punishable for imprisonment for life or death.  Hence, for my above stated reasons, I find no merits in bail application and it is rejected.”

                   Under the circumstances, I am of the considered view that from the material available on record it would be seen that the record connects the applicants with the commission of the alleged offence, therefore, at this stage the learned advocate for the applicant has failed to make out a case for grant of bail.  Case laws cited by the learned advocate for the applicant are distinguishable from the present case.  In view of the above, the application is dismissed being meritless.

                                                                                                JUDGE