2012 PLP 1713 (MLD)

MUHAMMAD TASNIM, J.

Applicant is booked in Crime No.8 of 2011, under section 6/9(b) of the Control of Narcotic Substances Act, 1997, Police Station A.N.F Clifton.

2. The case of prosecution, as setout in the F.I.R., is that on 16-1-2011 complainant S.I Khalid Rasheed of Police Station A.N.E Clifton Karachi received spy information that one person namely Abdul Naeem son of Abdul Hakeem concealed heroin filled capsules in his body would go to Malaysia by Flight No.PK-896 and on instruction of highups the complainant along with HC Muhammad Nasir Khan, PC Zafar Iqbal and other A.N.F officials were proceeded from Police Station at 1230 hours vide Entry No.25 and met with spy at the outside International Departure Lounge, JIAP, at 0130 hours, the spy pointed one person who had trolley bag and going towards departure lounge and stated that he is Abdul Naeem, the said person was apprehended and inquired his name, he disclosed his name as Abdul Naeem son of Abdul Hakeem when asked regarding heroin capsules he admitted that he has concealed heroin capsules in his stomach, his Passport, Air Ticket, cash amount, CNIC, mobile phone were taken into custody and accordingly arrested. Memo of arrest was prepared on the spot and taken to Nihal Hospital and obtain his x-ray which confirmed that he has concealed heroin capsules in his stomach therefore the arrested accused was taken to Jinnah Hospital, Karachi and admitted in Ward No.5 where on 17-1-2011 the accused taken out 96 heroin filled capsules from his stomach weighing 780 grams (gross), the recovered heroin capsules were sealed on the spot and sent for chemical examination.

3. Learned counsel appearing on behalf of the applicant/accused submits that as many as two memos were prepared by the prosecution, first with regard to the arrest and second with regard to the alleged recovery of capsules containing heroin but in both the memos no private person was associated as witness. He further submits that one memo was prepared at Jinnah Hospital where apart from the doctors hospital staff was also available, but no one was cited as witness while preparing the memo. Per learned counsel, there was delay of four days in preparing second memo with regard to the recovery of capsules and such delay has not been explained by the prosecution. Per learned counsel, as per challan 780 grams of heroin were allegedly recovered from the capsules which was in the stomach of the applicant/accused. Per learned counsel, the Chemical Examiner's report shows that 665 grams of heroin were allegedly recovered. He further submits that there is inconsistency in the statement made by the doctor which was recorded by the ANF authority under section 161, Cr.P.C.

4. In support of his contention learned counsel for the applicant/accused has relied upon a Full Bench Judgment of the Lahore High Court in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 363), Waheed Raza v. The State (2011 YLR 2760), Muhammad Shahid v. The State (2009 YLR 167), Akhtar Jan v. State 2009 YLR 45, Asghar Ali v. The State (2009 PCr.LJ 660), Ghafoor Ahmed v. The State (2009 YLR 123), Hakim Mumtaz Ahmed and another v. The State (PLD 2002 SC 590) and Nawaz v. The State (2004 YLR 1118). Learned counsel submits that no doubt law provides maximum punishment of seven years in a case where upto 1000 grams of heroin was allegedly recovered, but in view of the Judgment of Full Bench of Lahore High Court in the case of Ghulam Murtaza (supra) as per schedule of punishment comes to one year and ten months. Learned counsel further submits that there is discrepancy in weight of heroin allegedly recovered from the present applicant as stated above which creates doubt in the prosecution case and benefit of such doubt be extended to the applicant/accused and he may be enlarged on bail.

5. Conversely, learned Special Prosecutor appearing on behalf of the A.N.F. submits that the involvement of applicant/accused is supported by the statement made by the witness. He further submits that 96 capsules of heroin were recovered from the stomach of the applicant/ accused which weight about 780 grams and the maximum punishment in the circumstances would be seven years. He further contends that in terms of section 25 of the CNS Act, it is not necessary that some private person is to be associated as witness at the time when memos of arrest and recovery were prepared.

6. I have heard the learned counsel for the parties and perused the record of this case as well as case-laws cited at bar.

7. It is well-settled principle of law that at bail stage deeper appreciation of the record cannot be gone into but only tentative assessment is to be made just to find out as to whether the present applicant/accused is prima facie connected with the commission of the offence or not. Keeping in view the above settled principle and the judgment of the Hon'ble Supreme Court of Pakistan in the case of HAKIM MUMTAZ AHMED AND OTHERS V. THE STATE (PLD 2002 SC 590) in mind, the prosecution must have associated some private person as witness during the entire process of apprehending and recovering the alleged heroin. It is an admitted position that first memo of arrest was prepared at the spot but no private person was associated as witness. Even no official of Airport Security Staff was cited as witness though Airport Security Staff is always available at the airport and they are in uniform, such official should not have refused to act as witness. The second memo was prepared after the recovery of capsules on 17-1-2011 after about four-days delay of the arrest of the applicant/ accused. No plausible explanation has been furnished by the prosecution. There is also discrepancy in weight, as according to the challan, recovery has been shown as 780 grams, whereas Chemical Examiner's report reflects that recovered substance is 665 grams, even otherwise, in view of the judgment of Full Bench of the Lahore High Court as referred above, maximum punishment for the alleged recovered heroin would be one year and 10 months which does not fall within the prohibitory clause.

8. In the case of Nawaz v. State (2004 YLR 1118) cited by the learned counsel for applicant/accused a learned Division Bench of this Court with regard to citing private witness at the time of recovery has observed as under:-- "Though private persons are not required to witness the recovery of Narcotics Substance as provided under C.N.S. Act yet the place of recovery and the time of recovery has to be kept in view to prevent false implication of innocent people, looking to the general conduct of police. The maximum punishment provided for the alleged offence is 7 years which does not fall within the prohibitory clause contained under section 497, Cr.P.C. The accused is behind bars since last four months. Keeping in view the peculiar circum-stances of the case we are inclined to grant bail to the applicant."

9. The above judgment is fully applicable to present case as maximum punishment is seven-years, which does not fall within the prohibitory clause. In the present case as well no private witness was associated at the time of alleged recovery. From the perusal of the F.I.R. and Chemical Examiner's report it appears that there is discrepancy in weight of heroin recovered. The discrepancy in weight of heroin creates doubt with regard to the alleged recovery.

10. In the case of Hakim Mumtaz Ahmed (supra) the Hon'ble Supreme Court of Pakistan has held as under:-- "Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused. Allegations against accused, thus, needed further enquiry."

11. In this view of the matter, I find that the case of the prosecution requires further enquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, I admit the applicant/accused on bail subject to furnishing surety in the sum of Rs.100,000 (Rupees One Lac only) with P.R. bond in the like amount to the satisfaction of the trial Court.

12. The observations made herein above are tentative in nature and shall not affect the merits of the case triable by the trial Court.

13. This bail application stands disposed of in the above terms. NHQ/A-89/K Bail granted.