ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Cr. Bail Application No.571 of 2010. _____________________________________________________
Date Order with signature of Judge
For hearing
20.09.2010
Mr. Ejaz Khattak, Advocate for the Applicant
Mr. Khadim Hussain, D.P.G.
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Being aggrieved by and dissatisfied with the order passed by the learned Special Judge-II (C.N.S) Karachi on 1st April 2010 in Special Case No.13 of 2010, whereby bail to the applicant has been denied. The applicant preferred this bail application before this Court under Section 497 Cr.P.C.
Brief facts relevant for the purpose of disposal of the instant bail application as stated in the F.I.R are as follows:
“With reference to Report No.39, I, ASI Ehsanullah Marwat Incharge Police Post Ayub Goth alongwith ASI Mulazim Hussain, HC Saeed Kalam, PC Faisal Lateef 23871, PC Parvez Akhtar 19352 in official mobile No.SP-4445 driven by HC Ali Akbar 845 was busy on patrolling in the area for suppression of crimes. During patrolling I received kspy information to the effect that two persons who are dealers of charas were busy in off loading charas in a huge quantity from a Suzuki and were taking to their house near Gabol Market. After receiving such information at 1740 hours I alongwith police party reached at the mentioned place and found two persons taking five plastic sacks holding in their right and left hands who tried to runaway after glancing the police party but with the help of co-employees apprehended the accused persons who disclosed their names (1) Gul Zaman son of Zahoorullah and (2) Iftikhar son of Gul Zaman, their personal search was carried out in presence of ASI Mulazim Hussain and PC Saeed Kalam due unavailability of private witnesses, resultantly from three plastic bags holding in the hand of Gul Zaman recovered 30 packets Gardah charas weighing 12440 grams, 12570 grams and 12475 grams total weighing 37485 grams while from the possession of accused Iftikhar recovered 12595 grams and 12750 grams total weighing 25345 grams charas whereas on taking further search from the fron pocket of accused Gul Zaman recovered one mobile phone Nokia as well as cash Rs.300/- and from accused Iftikhar recovered Rs.200/-. Such act of the accused persons falls under Section 6-9/C Narcotics Control Act, hence they were arrested accordingly while each packet of the recovered charas was weighted separately and pasted weight chits thereon, the detail whereof is given in the memo. On return to police station registered the case against the above named accused persons and a copy of FIR is being dispatched to SIO of this police station for further investigation. Copies of the FIR will be distributed as per rules.”
Learned counsel for the applicant has argued that the applicant/accused is innocent and has been falsely implicated in the instant crime. As per prosecution story, there was spy information about two persons carrying charas after off loading from a Suzuki but strangely only charas has been seized, whereas neither number of any Suzuki has been mentioned nor any such Suzuki Car has been seized. Per learned counsel, there is no private mashir of the alleged seizure of charas, which is in violation of provisions of Section 103 Cr.P.C. Per learned counsel, the alleged recovery was made on 22.12.2009, whereas the seized charas was sent for chemical examination on 22.01.2010, in violation of Rule 4 of CNS (Government analyst Annalist) Rules 2001, whereby seized charas /contraband is required to be sent for chemical examination within 72 hours from the date of seizure. Per learned counsel, the applicant/accused is not previous convict and has been falsely implicated in the instant crime and the recovery has been foisted upon the applicant with ulterior motives. In support of his contention, learned counsel for the applicant has placed reliance on the following case law:
1. Hakeem Jamali v. The State 2009 P.Cr.L.J 695
2. Pir Bux & another v. The State 2007 M.L.D 1696
3. Mouladad alias Baba v. The State 2005 M.L.D 452
4. Inayat Ullah v. The State 2006 P.Cr.L.J 840
5. Gulab Hussain v. The State 2009 YLR 189.
Conversely, learned A.P.G has opposed the bail application, and submitted that there is sufficient material to connect the applicant/accused with the instant crime, moreover the applicant/accused has been arrested on the spot and recovery of huge quantity of charas has been affected. According to learned A.P.G, there is no allegation of malafide on the part of the prosecution, hence no question of falsely involving the present applicant/accused in the instant crime arises. Learned A.P.G further submits that by virtue of Section 25 of C.N.S Act, the provisions of Section 103 Cr.P.C are not applicable, hence police witnesses are competent and their testimony is valid in the eye of law. The learned A.P.G further points out that though there was spy information about the accused persons as well as Suzuki Car, however when the police party reached at the spot the charas/contraband was already taken out from the Car and was seized from the possession of the applicant/accused, hence there was no need of seizing the vehicle under the circumstances. Learned A.P.G also tried to explain the delay in sending the charas/contraband to chemical examination, and referred to a letter of the I.O. dated 30.12.2009 issued to the S.P.O. wherein permission for sending the sample to the Chemical Examiner has been sought. Per learned A.P.G, even otherwise, since there is no allegation of tampering the seized articles the objection relating to delay is not valid at this stage. Learned A.P.G has finally concluded that since the applicant/accused has been nominated in the FIR, specific role has been assigned and recovery of huge amount of charas/contraband has been made from the possession of the applicant/accused, which is also supported by the Chemical Examination Report, the applicant/accused is not entitled to concession of bail at this stage. Learned A.P.G has placed reliance in the case of Jameel Khan & 2 others v. The State P.L.D 2008 Karachi 374 and Zafar v. The State 2008 S.C.M.R 1254
I have heard the learned counsel for the applicant/accused as well as the learned A.P.G and perused the record. It appears that the huge quantity of charas is seized in presence of police witnesses from the possession of the applicant/accused who has been nominated in the F.I.R. All the packets of charas were weighed on the spot and memo of recovery and arrest shows weight of each packet and the case property was sealed on the spot. It further appears that the samples had been sent for chemical examination on 12.1.2010 where Chemical Examiner, after obtaining permission from the concerned TPO. In the case of Tariq Mahmood v. The State P.L.D 2009 SC 39, the Hon’ble Supreme Court has held that the CNS (Government Analyst) Rules 2001 are directory and not mandatory, hence violation of which would not vitiate the trial proceedings. It has been held that the provisions of Section 103 Cr.P.C. are excluded from the purview of C.N.S Act by virtue of Section 25 of C.N.S Act, whereas it has been further held that the police witnesses are the competent witnesses particularly in cases involving C.N.S Act. Reference in this regard can also be made to an earlier judgment of Hon’ble Supreme Court reported as Muhammad Hanif v. The State 2003 SCMR 1237.
In view of legal position stipulated in the above referred case law and on tentative assessment of the record, it appears that there is sufficient material connecting the applicant/accused from the alleged crime, whereas the plea of the applicant/accused claiming to be innocent can only be considered after the evidence is produced and witnesses are examined before the trial Court. Under the circumstances, applicant/accused has failed to make out a case for grant of bail at this stage, which is accordingly declined and the bail application of the applicant/accused is dismissed.
However, since there are only official witnesses the learned trial Court is directed to dispose of the case expeditiously, preferably within a period of three months keeping in view the National Judicial Policy 2009.
Needless to observe that the observations made hereinabove are tentative in nature and the learned trial Court shall not be prejudiced by any such observations and shall decide the case strictly in accordance with law and on the basis of evidence available on record.
JUDGE