2019 PLP 36 (YLRN)

AFTAB AHMED GORAR, J.

Applicant Asghar Ali son of Muhammad Ismail seeks bail after arrest in case Crime No.4/2016 registered at Police Station Excise, Karachi under section 6/9(c) of Control of Narcotic Substances Act, 1997.

2. Pithy facts unveiled from the FIR are that on receiving spy information 22.03.2016 the complainant Excise Inspector Abdul Malik Balouch along with other Excise officials reached at the pointed place at about 2000 hours arrested the accused Asghar Ali and on his pointation recovered 20 Kgs Charas, the accused was found involved in commission of offence hence the FIR was lodged.

3. Arguments advanced by learned counsel and learned Assistant Prosecutor General, Sindh are considered and record has also been perused.

4. Learned counsel for the applicant argued that applicant has falsely been implicated in this case with mala fide intention and ulterior motives. Learned counsel for the applicant further argued that applicant is behind the bars since his arrest i.e. 22.03.2016 hence he is entitled for bail on the ground of statutory delay. He added that delay in trial of applicant is not on the part of applicant. He contended that there is violation of section 103 Cr.P.C. as no private person associated to act as Mashir of recovery and arrest of the applicant. He further contended that complainant is himself Investigating Officer and also eye-witness of the incident which is against the law. Lastly, learned counsel for the applicant prayed that applicant is behind the bars since his arrest and may be admitted to bail. To support his contentions learned counsel for the applicant has relied upon the cases reported as Ashok v. The State (1997 SCMR 436), Imtiaz Ahmed v. The State (2017 SCMR 1194), Anwar Ali and another v. The State (2002 PCr.LJ 186) and Muneer v. The State (2014 MLD 723).

5. Conversely, the learned Assistant Prosecutor General, Sindh opposed the concession of bail to the applicant on the ground that the applicant is involved in heinous crime and on his pointation huge quantity of narcotics has been recovered. He further submitted that the evidence of Excise officials is reliable and the provision of section 103, Cr.P.C. is not applicable in view of section 25 of the CNS Act. Learned Assistant Prosecutor General, Sindh has emphatically contended that it is settled 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 the record, to determine the involvement of the accused in the commission of offence. To support his contentions he has placed reliance on the cases reported as Babar Hussain v. The State and others (2016 SCMR 1538), Socha Gul v. The State (2015 SCMR 1077) and Nasiruddin Abbas v. The State (2005 UC (Supreme Court) 395).

6. No enmity, ill-will or grudge has been alleged against the prosecution witnesses; on the contrary, sufficient material has brought by the prosecution on the record including report of Chemical Examiner relating to positive report of narcotic substance. So far as the contention of the learned counsel for applicant that the recovery was not witnessed by persons from public, it may be observed that section 25 of CNS Act excludes the application of section 103, Cr.P.C. It is not out of context to mention here that such activities are giving the country bad reputation in the international community of nations. As regards the delay in trial, the trial court in its order dated 20.08.2018, impugned herein, has observed as follows: "From the perusal of above circumstances it appears that the case law cited as 2017 SCMR 1194 is not applicable in the circumstances of the case, because the I.O./Complainant Abdul Malik Balouch has been examined extensively and only his cross-examination and mashir of this case also to be examined and hopefully he will be cross-examined on the next date of hearing. No doubt the delay is deprecated by the Hon'ble High Court of Sindh as well as Hon'ble Supreme Court of Pakistan, but unfortunately this Court having the jurisdiction of Karachi as there are three districts of the regular police including more than 100s PSs and jurisdiction of PS ANF Clifton, Customs and Excise, similarly Special Court-I (C.N.S.) Karachi is also facing same situation, therefore, delay on the part of the Court is not intentional but circumstantial."

7. Perusal of record reveals that further cross-examination of complainant has also been recorded on 01.09.2018 after passing of the impugned order which reflects that trial is commenced and will be concluded soon.

8. The larger interest of the public and State demands that in case of huge recovery of narcotics, the discretion under Section 497 of the Code of Criminal Procedure should not be exercised liberally. Generalizations on matters which rest on discretion and an attempt to discover formula of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. However, still the discretion must be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher Courts. The Apex Court in the case of The State v. Javed Khan (2010 SCMR 1989) has made the following observations in a narcotic case:- "S. 497(5)

Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51(1)

Recovery of narcotic substances

Bail, cancellation of

Death sentence

Narcotic substance weighing 5-1/2 kilograms was recovered from accused who was granted bail by High Court

Validity

Case of accused did not fall within prohibitory clause of S. 497 Cr.P.C., as the offence was covered by section 9(c) of Control of Narcotic Substances Act, 1997, providing for various sentences, which not only fell within prohibitory clause of S.497, Cr.P.C. but also attracted the bar contained in section 51(1) of Control of Narcotic Substances Act, 1997, which was specifically made applicable to those offences which provided for punishment of death sentence

Approach of High Court releasing accused on bail was arbitrary, without application of mind and contrary to settled principles of law thus unsustainable

Supreme Court converted petition for leave to appeal into appeal and order admitting accused on bail was set aside and bail application before High Court was dismissed."

9. The Lahore High Court in the case of Mst. Rafaqat Bibi v. State (2011 MLD 1070) has also held that:- "S.497

Control of Narcotic Substances Act (XXV of 1997), S.51

Bail

Section 497, Cr.P.C. not applicable to offences under the Control of Narcotic Substances Act, I997

Section 51 of the Control of Narcotic Substances Act, 1997, has ousted the implication of S.497, Cr.P.C. from the cases relating to narcotics punishable with death

Said S.51 relates to the Control of Narcotic Substances Act, 1997, which is a special law dealing only with the offences relating to narcotic drugs, psychotropic substances and to control the production, processing and trafficking of the same, whereas Criminal Procedure Code, 1898, is a general law and special law has always precedence over the general law

When the law makers provide some special provision in the Statute to bar the jurisdiction of Special Court established under the said enactment, due weight is to be given to such special provision of law as against general principles governing such cases, when accused approaches the Special Court or the High Court."

10. Similar view has been taken by this Court in the case of Ayaz Pathan v. State (2013 YLR 2560), wherein the learned Bench while dismissing the bail application in a case registered under Section 9(c) of CNSA has made the following observations:- "S. 497

Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 14, 15, 25 & 29

Possessing, trafficking of narcotics, and aiding, abetting and associating in narcotic offences

Bail, refusal of

Prosecution witnesses, had no enmity whatsoever, with accused to foist such a huge quantity of nine Kilograms of charas upon him

Chemical Examiner's report regarding recovered charas was found positive

Substance recovered from accused, was proved to be charas--Prosecution, in circumstances, had discharged its initial onus while proving that the substance recovered from accused was contraband charas

Sufficient material was available on record, which had shown that accused was found sitting on front seat of the vehicle, and he was found responsible for transportation of narcotics

Defence plea that the narcotic was not recovered from possession of accused, was not true

Alleged offence was heinous one falling within prohibited clause of S.497, Cr.P.C.

Contention that respectable inhabitants of the locality, were not associated as witness or mashir, was not attracted in view of S.25 of the Control of Narcotic Substances Act, 1997

Applicability of S.103, Cr.P.C., had been excluded in the cases of recovery of narcotics

Evidence of Police Officials, was as good as of any other public witness, in absence of any malice or mala fide

Defence plea raised by accused, required deeper appreciation of evidence, which was not admissible at bail stage

Under provisions of section 29 of Control of Narcotic Substances Act, 1997 presumption would be that a person who was found in possession of narcotics, had committed offence, unless otherwise proved

Reasonable grounds, prima facie, did exist to believe the involvement of accused in the offence alleged against him

Bail application having no merits for consideration, was dismissed, in circumstances."

11. The learned counsel for the applicant could not point out any mis-reading, non-reading of material and law available on the subject. Learned counsel for the applicant through his exhaustive and elaborate arguments wanted this Court to give its categorical and specific verdict regarding the applicant that he is not involved in the commission of offence under the Control of Narcotic Substances Act, 1997. He placed reliance on the judgments of this Court as well as the Apex Court favouring him in this regard. But this Court is very much clear in its mind that no such precise verdict in criminal cases can be given as every criminal case has its own facts and circumstances.

12. The Apex Court, however, has in a recent case reported as Socha Gul v. The State (2015 SCMR 1077) while considering the offences punishable under the Control of Narcotic Substances Act, 1997 to be heinous in nature and against the society at large, repelled the views of this Court as under:- "It is pertinent to mention here that offences punishable under CNS Act of 1997 are by its nature heinous and considered to be the offences against the society at large and it is for this reason that the statute itself has provided a note of caution under section 51 of CNS Act of 1997 before enlarging an accused on bail in the ordinary course. When we refer to the standards set out under section 497 Cr.P.C. for grant of bail to an accused involved in an offence under section 9(c) of 4 CNS Act of 1997, even on that basis we find that an accused charged with an offence, prescribing various punishments, as reproduced above, is not entitled for grant of bail merely on account of the nature or quantity of narcotic substance, being four kilograms. Firstly, as deeper appreciation of evidence is not permissible at bail stage and secondly, in such situation, looking to the peculiar features and nature of the offence, the trial Court may depart from the normal standards prescribed in the case of Ghulam Murtaza (supra) and award him any other legal punishment. Thus, in our opinion, ratio of judgment in the case of Ghulam Murtaza (supra) is not relevant at bail stage."

13. It is settled that for deciding the bail application the court has to observe the tentative assessment and deeper appreciation of evidence is not required and it will not be fair to go into discussion about the merits of the case at this juncture. In this respect reliance is being placed on the cases of Saleh Muhammad v. The State (PLD 1986 Supreme Court 211) and The State v. The Zubair and 4 others (PLD 1986 Supreme Court 163). The case laws, relied upon by the learned counsel for the applicant, are not applicable as the same are distinguishable to the facts and circumstances of the case in hand.

14. In view of whatever mentioned above, I reached at the irresistible conclusion that the applicant is not entitled to grant of bail. Consequently, the instant bail application is dismissed.

15. Before parting, it needs not to make clarification that the observations recorded above, being necessary for disposal of the instant bail application, are tentative in nature, therefore, the trial court shall not be influenced in any manner whatsoever. MQ/A-138/Sindh Bail refused.