2017 PLP 2308 (YLR)

SHAHNAWAZ TARIQ, J.

Through captioned post-arrest bail application, applicant Raees Khan son of Abdul Sattar has impugned order dated 31.08.2016, passed by the learned Special Judge-II, Karachi, whereby his earlier bail application was declined.

2. Relevant facts narrated in instant bail application are that on 28.04.2016, complainant P.O. Zahid Hussain Siddiqui of Customs was attending the baggage examination/clearance of outgoing passengers. At about 1730 hours, he intercepted the suit-case of passenger Raees Khan on the basis of suspicion and diverted it to examination counter and in presence of two witnesses recovered 12 polythene packets containing crystalline amphetamine, which was found to be 580 grams. Recovered substance was instantly tested with a Narcotic Testing Kit which resulted in positive, thus recovered amphetamine was seized and applicant was apprehended under a mashirnama at the spot, hence instant FIR.

3. Learned Counsel for applicant contended that applicant has been challaned to face trial under sections 6/9-B CNS Act, 1997, and alleged offence is punishable for seven years which does not attract the prohibitory clause of Section 497, Cr.P.C.; that applicant is behind the bars since the day of his arrest but till date charge has not been framed and applicant in custody without any trial; that investigation has been concluded and applicant is no more required further for investigation.

4. While controverting the above submissions, learned Special Prosecutor, Customs contended that applicant was arrested at Jinnah International Airport and crystalline amphetamine was recovered from his suitcase, hence applicant is not entitled for grant of bail at this stage.

5. Heard learned Counsel for the parties supported with case law and examined the material available on record, which emanates that applicant was apprehended on 28.04.2016 at Jinnah International Airport Karachi and allegedly 12 polythene packets containing crystalline amphetamine were recovered from his suit-case during scanning/ checking the baggage, which were found to be 580 grams nevertheless recovered packet were not weighed separately Thereafter at the first instance complainant lodged FIR No.10/2016 on 1830 hours at the office of Drug Enforcement Cell, International Departure Hall, Jinnah International Airport, Karachi, while mashirnama of arrest and recovery was prepared at 1900 hours, such copies are available at pages 31 and 43 of the file. Indeed, complainant was bound to prepare mashirnama of arrest and recovery instantly when narcotics substance was recovered from the possession of the accused but it was not done Immediately, thus lodgment of FIR prior to the preparation of recovery and arrest is not only deviation from the prescribed procedure and utter violation of well settled principles of administration of criminal justice, but has created doubt about sealing and weighing of the recovered narcotics substance. Consequently, any slightest doubt even at bail stage will be transmitted in favour of accused.

6. Indeed, after conclusion of investigation, challan has been submitted before the trial court and during the period of more than five months charge has still not been framed and there is no probability of early commencement of trial. All the PWs are government officials, hence there is no apprehension of tampering with the prosecution evidence, hence further detention of applicant will not serve any useful purpose. Alleged offence is punishable up to seven years which does not fall within the ambit of restraining clause of section 497(2), Cr.P.C.

7. Considering the above facts and circumstances, applicant has succeeded to make out his case for grant of post-arrest bail on the ground of further inquiry as contemplated under section 497(2), Cr.P.C. Consequently, applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs.50,000/- (Rupees fifty thousand) and PR bond in the like amount to the satisfaction of trial Court.

8. The observations made above are tentative in nature and learned trial Court shall decide the case strictly on merits. Bail application stands disposed of in the above terms. WA/R-1/Sindh Bail granted.