2020 PLP 675 (MLD)

ABDUL MOBEEN LAKHO, J.

Applicant Kashifullah son of Dad Khan seeks post arrest bail in a case bearing crime No. 1020 of 2019, Police Station Custom Coastguard Karachi, registered under sections 6, 9(c) of Control of Narcotic Substances Act, 1997.

2. Brief facts as unfolded in the prosecution story as alleged are that-- "On 18-08-2019, at 1010 hours, complainant Subaidar Abdul Wakeel [commander check post of Superhighway, Karachi], of P.S. Pakistan Coastguards, Karachi, along with his subordinate staff were busy in checking at Superhighway check post, Karachi; and during checking they stopped Bilal Coach, registration No.BSA-635 with the purpose of checking. As the civilian were not ready to act as witness, therefore complainant cited CG-12150 Naik Muhammad Yousuf CG-14877 sepoy Amir Ishtiaque as mashirs and inquired name etc from driver of the coach who disclosed his name as Kamran son of Noor Muhammad. Thenceforth complainant while giving note under section 23 of the CNS Act, 1997, to the driver and started checking of the coach. During checking complainant recovered one bag from side box of the coach and whose owner was passenger of seat No.32 namely Kashifullah son of Dad Khan. The complainant opened the said bag and recovered two packets of charas/hashish Weighing two kilogrmas along with packing material and its description is written in inventory. The complainant extracted sample of 500 grams from each packet viz. 1000 grams and sealed the same separately for the purpose of chemical examination. The remaining charas was sealed at the spot separately in presence of the said mashirs. The mashirnama of arrest and recovery and inventory list was prepared at the spot which were signed by the above set of mashirs. The notice under section 22 of the Control of Narcotic Substances Act, 1997, to the accused Kashifullah and arrested him.

3. Mr. Muneer Ahmed Gilal, advocate, representing the applicant/ accused submitted that applicant / accused is innocent and has been falsely booked in the present case with mala fide intention and ulterior motives: that narcotic as alleged has been recovered from [side box of the Bus]: that the driver of the bus has not been cited as mashir of recovery and arrest; there is no eye witness of the occurrence though a lot of passengers were travelling altogether in the bus but Investigation Officer did not bothered to cite any independent person from the general public i.e. passengers of the bus to witness the recovery; that the admission before the police is inadmissible under the law as provided under sections 38 and 39 of Qanun-e-Shahadat Order, 1984: that there is a delay of three and half hours in lodging of the FIR as the distance between venue of occurrence and the police Station is about sixty kilometers and it can be travelled within 30 to 45 minutes; that there is delay in sending the alleged charas to the chemical Laboratory; which delay is also not plausibly explained; the case of the present applicant/ accused require further probe and does fall within the domain of section 497(2), Cr.P.C. Lastly learned counsel for the applicant/accused prayed that the applicant accused may be enlarged on post arrest bail. Learned counsel for the applicant/accused relied upon the case law reported in 2002 SCMR 442 Muhammad Siddique v. Imtiaz Begum and 2 others, PLD 2017 Supreme Court 733. 2017 YLR 2308 Raees Khan v. The State, 2002 SBLR 2015 Ghulam Abbass v. The State, 2014 PCr.LJ 576 Peerano Khan v. The State, 2017 YLR Note 332 Muhammad Zubair v. The State, 2018 YLR 2358 Abdul Waqar v. The State, PLD 2009 Lahore 362 Ghulam Murtaza and another v. The State.

4. Mr. Nadeem Khan, learned Deputy Attorney General assisted by the Investigation Officer PCG; contended that applicant / accused has rightly been booked in the present case with specific role together with illicit contraband; learned DAG further argued that there is sufficient material available with the prosecution to connect the applicant/accused with the commission of offence; the offence committed by the applicant/ accused falls within the domain of prohibitory clause of section 497(1), Cr.P.C; lastly learned DAG opposed the grant of post arrest bail and prayed that the bail plea of the applicant/accused may be dismissed in the circumstances.

5. Heard the learned counsel for the applicant/accused and the learned Deputy Attorney General.

6. I have considered the respective contentions raised above. Admittedly the complainant did not choose to cite the Driver and Conductor of the bus to act as witness of the recovery especially when the accused was pointed out by the driver to be the owner of the contraband [charas]; astonishing to note herein: that, the alleged bus from which the alleged contraband was recovered was also not taken into custody. Apart from above, the alleged applicant/accused was travelling via ticket No.32; on search of applicant/accused said ticket was also not recovered from his physical possession. The alleged recovery as shown in the FIR is from the side box of the bus worth of which is Rs.77.000/= [Seventy Seven Thousand]. The inventory available at Page No. 27 of the file mentions two items "Hashish" and "Flour" [Aatta] but it does not say whether if it is the whole inventory of such side box and whether if the side box from which the recovery was effected was reserved only for Seat No.32. Especially when the recovery is being effected from outer side of the bus and not from the physical possession of the alleged accused, the question arises as to who was / is in control of the keys to the outer [side box] of the Bus. I am fortified with the case law reported in 2019 SCMR 1651 Jhusain Ullah v. State and another, it has been held as follows:-- "After hearing the learned counsel for the petitioner, learned Law Officer and perusal of available record, it has been observed by us that when the petitioner was arrested by police, he was not driving the car nor any narcotic was recovered from his exclusive possession rather he was sitting on the rear seat of the car. Learned Law Officer has confirmed under instructions of the police office present in Court that there is nothing on the record to connect the petitioner with the car. In these circumstances, the case of the petitioner becomes one of further inquiry falling within the ambit of section 497 Code of Criminal Procedure. He is behind the bars since 16.03.2017 and nothing is to be recovered from him. In this backdrop, no useful purpose shall be served by keeping him incarcerated for an indefinite period"

7. As discussed supra and the tentative assessment of the case, the applicant/accused has successfully established a case calling for further probe into the matter and being fortified by the case law of the Hon'ble Supreme Court which would ultimately lead the case of present applicant/accused fall within the domain of further inquiry into the guilt of applicant/accused as provided in the limb of Section 497(2), Cr.P.C. These are the reasons of short order 31-10-2019. Note:-The observations made hereinabove are tentative in nature and shall not cause any prejudice to the case of either side at trial. ADN/K-/Sindh Bail allowed.