2021 PLP 1381 (MLD)

ROZI KHAN BARRECH, J.

Through instant application the applicant (Regional Director Anti-Narcotics Force) seeks cancellation of bail granted to the accused/respondent Syed Amir Muhammad son of Abdul Ali vide order dated 21.10.2019 by learned Judge Special Court CNS Balochistan Quetta ("trial court") under Sections 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter the "CNS Act") in FIR No. 07 of 2019 PS ANF Quetta.

2. Brief facts of the case are that on 21.03.2019 the complainant Muhammad Naseem IP received spy information that one person namely Syed Amir Muhammad is selling Ice (drug) near different schools and language centers in Kuchlak. On the said information the complainant along with other officials of ANF reached Killi Sanzarkhailan at 1:00 pm and started surveillance near schools and language centers and after sometime at 5:00 pm accused/respondent holding a white colored bag on his shoulder was spotted coming from Kuchlak toward Judicial Complex Kuchlak. He was apprehended and during search from the bag 4 kilograms of Ice was recovered, which was taken into possession through recovery memo in the presence of witnesses. Hence, the crime report.

3. After completion of investigation challan was submitted before the trial court. Charge was framed and read over to the respondent. The accused/respondent did not plead guilty to the charge and claimed trial. During the trial when the case was fixed for recording the statement of investigation officer the accused/respondent moved an application for grant of post arrest bail. After hearing the learned counsel for the parties the trial court accepted the said application and granted post-arrest bail to the accused/respondent vide impugned order dated 21.10.2019. Hence, the instant application.

4. We have heard the arguments advanced by learned counsel for the parties and have also perused the available record with minute particulars.

5. While granting bail to the accused the trial court observed as under: " .It is also borne out from the available record that three witnesses have examined, and from last 12 hearings no prosecution witness able to appear before this court, it is further revealed from the available record that no any private witness is associate in the instant case such as any teacher and student of the school and language center as alleged in the FIR for selling drugs to students, the FGA report is also doubtful. Case is at the final stage and fixed for statement of investigation officer, further detention does not serve any useful purpose".

6. From perusal of the record it reveals that the accused/respondent was arrested on 21.03.2019 and he was released on bail by the trial court on 21st October 2019 after seven months of his arrest. Allegedly the prosecution/ANF officials recovered 4 kilograms of Ice from physical possession of the accused/respondent. Section 9 of the CNS Act provides punishment for imprisonment for life, sentence upto fourteen years, or death. Clause (b) of the third proviso of section 1 of section 497 provides the statutory period of two years and not seven months. In the instant case the accused/respondent was arrested on 21.03.2019 and the above statutory period of two years had not lapsed on 21.10.2019 i.e. when he was admitted to bail.

7. Non-association of a private witness cannot be made a basis for granting post-arrest bail to the accused/respondent as section 25 of Control of Narcotic Substances Act, 1997 excludes application of section 103, Cr.P.C. in the cases under Control of Narcotic Substances Act, 1997. The trial court has wrongly made deeper appreciation of evidence at the bail stage which is not permissible, rather tentative assessment of the material/evidence collected by the prosecution has to be made at bail stage. It is also settled principle of law that the courts are always slow in granting post-arrest bail at final stage of the trial.

8. The respondent is prima-facie involved in commission of a non-bailable offence under CNS Act, 1997 and was not entitled for concession of post-arrest bail at the final stage of the trial. While granting post-arrest bail to the accused/respondent the trial court has wrongly exercised its discretion.

9. In view of what has been discussed herein above, the ease against the accused/respondent squarely falls within the mischief of 9(c) of the CNS Act and that being so, the impugned order granting post-arrest bail to the accused/respondent cannot be sustained. For rendering this view we are fortified by the dictum laid down by the Hon'ble Supreme Court in the case of The State through Deputy Director Anti-Narcotics Force, Karachi v. Mobin Khan (2000 SCMR 299) and Zafar Iqbal v. Muhammad Ilyas (2006 SCMR 150). As a result, the applicant is allowed and the post-arrest bail granted to the accused/respondent by the trial court is cancelled. The accused/respondent shall be taken into custody. The above discussion shall constitute the reasons for our short order dated 16-7-2020 announced in open court. SA/177/Bal. Bail cancelled.