2009 PLP 1275 (YLR)

GHULAM DASTAGIR SHAHANI, J.

Bail application is submitted on behalf of applicant/accused namely Agha Khan son of Muhammad Ramzan in Crime No.3203/2006 registered at Coast Guard Police Station under sections 9(c) and 32 C.N.S. Act, 1997. Brief facts of the prosecution case are that on 21-11-2006 Pakistan Army No.31324, Major Shahid Latif Officer Commanding Field Intelligence Unit, Pakistan Coast Guards Karachi received secret information that an huge quantity of chars is coming to Karachi from Quetta through Super Highway, on this report Major Shahid Latif arranged a mobile patrolling party. That at about 1630 hours a Pajero Jeep having Registration No.BA-2696, Engine No. AX-2063, Chassis No.CL-048 VJ00442, stopped on the signal of the party. In the said vehicle Agha Khan son of Muhammad Ramzan and his companion Samandar Khan son of Mullah Ahmed were sitting. As at that time, there was no civilan mashir, therefore, Subedar Maqsood Ali associated as mashir of recovery to Hawaldar Muhammad Ishaq and Naik Muhammad Khan. He given notice under section 23 C.N.S. Act, 1997 and took search of the driver Agha Khan and on search of secret boxes at roof of the vehicle recovered 174 Packets of chars, same was weighed at the spot and found 220 k.g. Subedar Maqsood Ali in presence of above named both mashirs took 12 samples from each packet on which mashirs, Agha Khan and Sanmdar Khan put their signature and sent samples for a test to Sindh Chemical Laboratory. Subedar Maqsood Ali took the recovered Chars and said Pajero Jeep into police Custody 'after giving notice under section 22 of C.N.S. Act, 1997 to the accused. Bail application moved on behalf of applicant/accused was dismissed vide order, dated 4-6-2008 by the Judge Special Court-II (C.N.S.) Karachi. Hence this bail application. Heard learned counsel for the applicant/accused. She submits that applicant is innocent and has been falsely implicated in this case. She further submits that applicant/accused is aged about 80 years and he is indisposition. She further states that alleged recovery was sent to chemical examiner after delay of 5 days without any explanation. She further states that applicant/accused is behind the bars since last two years, therefore, he is entitled for grant of bail. Learned counsel for the applicant relied on the case of Haji Muhammad Aslant v. The State (1992 MLD 997), Taj Ali Khan v. The State (2004 YLR 439), Mst. Iqbal Bibi v. The State (1995 PCr.LJ 1472) and Raza Muhammad v. The State (1991 PCr.LJ 341). None present on behalf of the ANF authorities though repeated called. Heard learned counsel for the applicant/accused and perused the material available on record. Learned counsel for the applicant as well as her associate press for bail on the ground that applicant/ accused is 80 years patient, though as per CNIC applicant is aged about 57 years and in support of his aliment, neither any medial certificate/prescription of medicine has been filed nor it has been disclosed in the file. From record it further reveals that they took samples 12 in number of 10 grams each, from 12 packets for laboratory test and report received positive. Even otherwise, it was not necessary to send the entire material in view of section 51 of the CNS Act. So far, delay of five days in sending sample to Chemical Examiner is to be explained in evidence/as tentative assessment is to be made at bail stage and no deeper appreciation is required at this stage. Even otherwise, each and every case is to be decided on its own merits. Presence of applicant in a particular vehicle and recovery of huge quantity of Charas from secret boxes at roof prima facie favouring the participation of the applicant/accused in the aforesaid offence. Even otherwise, application is submitted, on behalf of applicant not on the ground of hardship. So far the law relied upon by the counsel, appearing for the applicant is concerned, is not relevant and similar to the case in hand. As case of 1995 PCr.LJ 1472 was a case of the lady and the recovery was from rare seat of motorcycle and one Makhan Khan was a driver not the applicant/lady and 100 grams of heroin was recovered. Whereas for case of 2004 YLR 439 is concerned, there was a recovery of 1500 grams of Charas and being a border line case between section 9(b) and (c) of the CNS Act, bail was extended. So far the case of 1992 MLD 997, is concerned, (20) KG Charas and (250) grams heroin was recovered while applicant/accused slipped away and was shown absconder in a challan and co-accused who was arrested at the time of recovery was already released on bail. So far the case of 1991 PCr.LJ note (Lahore) 341 is concerned, bail was extended as two accused were later declared innocent. In view of aforesaid facts and circumstances, bail application submitted on behalf of applicant/accused Agha Khan son of Mohammad Ramzan was dismissed by a short order, dated 17-9-2008. These are the reasons for the same. H.B.T./A-60/K??????????????????????????????????????????????????????????????????????????????????? Bail refused.