2009 PLP 123 (YLR)

SALMAN ANSARI, J.

This bail application has been moved on behalf of applicant Ghafoor Ahmad. Brief facts of the case according to F.I.R. are that on 3-3-2008 while leaving for Kaula Lampur by Singapore Airline's Flight No.SQ-460 the applicant was intercepted by the customs staff on suspicion, he was subjected to radiological examination and on X-ray the presence of 63 heroin filled capsules were detected. On excretion 63 capsules containing 600 grams heroin powder were recovered at Ward No.5, JPMC, Karachi. A case under sections 6, 7 and 8 of the C.N.S. Act, 1979 punishable under section 9, C.N.S. Act was registered against the applicant/accused. His previous bail application was rejected by learned Special Judge-II, (C.N.S.) Karachi vide order, dated 9-4-2008, hence this bail application.

2. Learned counsel for applicant has argued that there is a delay in lodging of F.I.R., which renders the recovery doubtful and makes this case one of further enquiry. No.164, Cr.P.C. statement of the applicant was recorded, bar contained in section 51 C.N.S., Act would not come in the way to release the applicant considering that offence does not fall under section 9(c), C.N.S. Act. He has relied on Tariq Bashir v. The State PLD 1995 S.C.34 and orders passed in unreported cases Criminal Bail Application 576 of 2008 (Muhammad Shahid v. The State) and Criminal Bail Application No.516 of 2008 Abdul Majeed v. The State.

3. Learned State counsel has opposed to grant of bail on the ground that even if the offence does not fall within the prohibitory clause of section 497, Cr.P.C. no case of bail is made out. He relied upon the case of Afzaal Ahmed v. The State 2003 SCMR

573. Learned State counsel has contended that no case of bail is made out as the recovery has been effected from the applicant/accused.

4. Heard arguments advanced by the learned counsel for the parties, perused the record and case-law cited at bar.

5. In this case 63 capsules containing 600 grams of heroin powder were recovered from the body of applicant which process would consume some time for such recovery of narcotics but in similar cases where the accused have been granted bail by this Court as given in the orders mentioned above. In PLD 1997 SC 34 (supra) where it was held grant of bail in offences punishable for imprisonment for less than 10 years is a rule and refusal an exception. The challan shows that applicant has been challaned for an offence punishable under section 9(b) of the Control of Narcotic Substances Act, 1997 which provides sentence for 7 years, hence the findings would apply to present case under the circumstances where the offence does not fall within prohibitory clause of section 497(1), Cr.P.C.

5. Under the circumstances and in view of above discussion, I am inclined to allow instant bail application of applicant.

6. The applicant be released upon furnishing surety in the sum of Rs.2,00,000 and executing P.R. Bond in the like amount to the satisfaction of trial Court. N.H.Q./G-27/K Bail allowed.