2013 PLP 2560 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

Applicant Ayaz Pathan, presently confined in Central Prison-II, Sukkur, has sought post arrest bail in Crime No. 18 of 2012, registered at Police Station ANF, Sukkur, for offences punishable under sections 6, 9(c), 14, 15 of the Control of Narcotic Substances Act, 1997.

2. Succinctly, the facts forming the background of the instant case are that the Complainant Inspector/S.H.O. Ghulam Abbass lodged F.I.R dated 23-11-2012, alleged therein that on receipt of spy information about inter province smugglers of narcotics namely Javed Pathan, resident of Sultan Kot, District Shikarpur, regarding supply of a huge quantity of contraband Charas, in white Corolla Car Registration No. AF2-640 via Ghotki

Shikarpur Road leading towards Jacobabad destination. On such information, he formed a raiding party including himself and left the Police Station after making necessary entry in station diary and conducted Naka-Bandi. During checking of vehicles, at about 1715 hours, he saw the pointed vehicle coming from Sukkur, which was stopped, two persons were found in it, the person sitting on driver seat, disclosed his name Rasool Bux Mastoi and another person who was occupying front seat disclosed his name to be Ayaz Pathan/applicant. It is alleged that both of them got down from the vehicle and people present there were asked to be the witness but nobody was prepared, therefore, he nominated Shamrez Khan and PC Muhammad Hanif to be the witnesses. During search, the accused Rasool Bux after some hesitation took out six number foil pack packets containing Charas below the driver seat, while another accused/ applicant Ayaz Pathan took out "Tora" lying under his feet, which was found containing foil pack packets of Charas. The Charas recovered from Rasool Bux was found to be six kilograms and from the bag of Ayaz Pathan was weighed to be nine(9) kilograms. The contraband narcotic was duly sealed on the spot. It is narrated in the F.I.R. by the complainant that on inquiry both apprehended accused disclosed that they had brought the contraband charas from Javed Pathan resident of Sultan Kot, Ghotki. Thereafter, the accused were arrested under proper mashirnama and after recording the F.I.R. and receipt of the report of Chemical Examiner and on completion of usual investigation, they were charge-sheeted before the trial Court.

3. Arguments heard and record perused.

4. Mr. Ghulam Shabbir Dayo, learned counsel for the applicant contended that the applicant is innocent and has been falsely implicated in this case due to his political affiliation with "Jeay Sindh Political Party" and nothing was recovered from his possession. It is argued by learned Advocate for the applicant that one Inspector Abdul Majeed Abro in his statement supported the version of applicant including two persons of the locality namely Muhammad Bux Kalwar and Rafique Ahmed Gopang. It is further submitted that actually the applicant was kidnapped on 23-11-2012 and that the brother of the applicant has filed Constitution Petition before this Court. Learned counsel has further submitted that all the witnesses cited in the case are officials of Anti-Narcotics Force and no respectable inhabitant of the locality witnessed or attested the alleged recovery.

5. Conversely, learned Prosecutor opposed the concession of bail to the applicant on the ground that the evidence of police officials is reliable and corroborated by positive Chemical Examiner's report. He has also submitted that the provision of section 103 Cr.P.C. is not applicable in view of section 25 of the C.N.S. Act. Learned Prosecutor has further submitted that it is settled law that at the bail stage the appreciation of facts in depth cannot be considered and the Court at the bail stage has to look into the material available on record, to determine the involvement of the accused in the commission of offence.

6. Learned Prosecutor has rightly contended that the evidence of police officials is as good as of any other public witness, in absence of any malice or mala fide. In this case prosecution witnesses had no any enmity whatsoever with the applicant to foist such a huge quantity of nine kilograms of Charas upon him. Chemical Examiner report regarding recovered Charas was found positive, it is proved that substance recovered from the applicant was Charas; therefore, the prosecution discharged its initial onus while proving that the substance recovered from him was contraband Charas. There is sufficient material available on record which shows that the applicant was found sitting on front seat of the vehicle and he was found responsible for transportation of narcotics. The defence plea propounded by the applicant that the narcotic was not recovered from his possession is not true. Proper reading of the evidence on the record and the factual concluding drawn by the learned trial Court while deciding the earlier bail application are not shown to suffer from any misreading or non-reading of evidence. The alleged offence is heinous one, falling within prohibitory clause. So far as the contention of the learned counsel for the applicant that respectable inhabitants of the locality did not associate as a witness or mashir is not attracting in view of section 25 of the Control of Narcotic Substances Act, 1997. The applicability of section 103, Cr.P.C. has been excluded in the cases of recovery of narcotics as held in the case of Muhammad Khan v. The State (2008 SCMR 1616). The defence plea raised by applicant require deeper appreciation of evidence which is not applicable at the bail stage. Under section 29 of C.N.S. Act, 1997, presumption would be that a person who was found in possession of narcotics had committed offence unless otherwise proved. The applicant was found in possession of contraband Charas weighing nine kilograms, therefore, the facts of reported case of Saleh alias Salo v. The State (2012 PCr.LJ 595) are not applicable in the present case, facts of the cited case are that the applicant escaped from the place of incident and after his disappearance a blue colour bag was found from the spot containing the contraband material. The facts of the cited case further reveals that applicant was not apprehended at the spot and Charas was not recovered from his possession, but in the instant case the contraband material was recovered from the possession of the applicant, hence the facts and circumstances of the cited case are distinguishable.

7. For what has been discussed above, reasonable grounds, prima facie, did exist to believe the involvement of the applicant/accused in the offence alleged against him, therefore, the instant bail application, having no merits for consideration is hereby dismissed. I am sanguine that the trial Court would decide the case expeditiously, preferably within a period of three months after adopting proper procedure under the law. It need not to iterate that the bail application may be repeated before the trial Court after recording the depositions of complainant/ I.O. and Mashirs, if so advised.

8. The observations made above are tentative in nature and the trial Court shall not prejudice during trial. HBT/A-92/K Bail refused.