2017 PLP 754 (MLD)

MUHAMMAD IQBAL KALHORO, J.

Applicant is shown accused in two FIRs, that are, FIR No.D030706515 and FIR No.D030706615 registered under different penal provisions of Control of Narcotic Substances Act, 1997 at P.S. ANF Muhammad Ali Society Korangi, Karachi. He by means of captioned applications is seeking post arrest bail in both the cases.

2. Facts of the first FIR show that on a tip-off co-accused Muhammad Saleem was arrested by the complainant namely Inspector Muhammad Muzzamil Ahmed from Jameela Street Saeed Manzil, near Traffic Signal M.A. Jinnah Road Karachi on 16.09.2015 @, 0015 hours when he was driving a car. And from the car 100 K.Gs. of charas was recovered. He disclosed that said charas was given to him for sale by the applicant, posted as S.I. at P.S. AVCC Garden Karachi. He also made a further disclosure about availability of huge quantity of narcotics in his office. Necessary formalities were completed at the spot. Co-accused Muhammad Saleem and recovered narcotics were brought at P.S Anti-Narcotics Force and thereafter on his pointation, the raid was conducted at the office of applicant situated at P.S. AVCC Garden Karachi. As the office was found locked, it was broken open and from a locked box lying there 66.500 K.Gs. of charass and 2 K.G. heroin were recovered, that followed preparation of necessary documents there. Applicant was not present in the office at the time of such recovery. The recovered narcotics was brought at the police station where above stated two FIRs were registered.

3. Learned Counsel for the applicant has argued that applicant is innocent and has been falsely implicated in the case; that in the first FIR he has been arraigned as an accused on the basis of statement of co-accused before police officials, which is inadmissible in law; that contents of second FIR show that applicant was not present in the office at the time of alleged recovery, therefore, his possession of said narcotics is not free from doubt and unless prosecution establishes its case against him in the trial, he is to be presumed innocent; that at the time of alleged recovery, no entry at the relevant P.S. was made and before conducting alleged raid no permission from SSP concerned was obtained. Learned Counsel further contents that, the raid was conducted in sheer violation of Section 21(2) of CNS Act, 1997, and is thus illegal. Learned Counsel has also read out Section 26 of CNS Act and states that entry in the office of the applicant in view of said provision of law is vexatious and thus not reliable. He has lastly relied upon the case law i.e. (1) 1999 PCr.LJ 225, (2) NLR 2003 Criminal 640, (3) 2004 YLR 1303, (4) 2008 SCMR 1111, (5) 2007 YLR 3130, and (6) 2000 SCMR 677.

4. On the other hand learned Special Prosecutor, ANF has opposed grant of bail to the applicant. His contentions concerning first FIR are that as at the instance of co-accused Muhammad Saleem, the recovery was effected from the office of the applicant, his evidence would be relevant in terms of provisions of Article 40 of the Qanun-e-Shahadat Order and can be used against the applicant in the first FIR. He has further stated as the recovery of narcotics was effected from the office which was in exclusive possession of the applicant, therefore his conscious possession of narcotics is fully established. He has however not denied that in the first FIR applicant has been arraigned as an accused on the basis of statement of co-accused.

5. I have considered the submissions of the parties and perused the material available on record. A perusal of two FIRs shows that in both of them the recovery of 66.500 K.Gs of charas and 2 K.G heroin effected allegedly from the office of the applicant is shown. Learned special prosecutor ANF has not been able to explain how the same property can be made or used as an incriminating article in two FIRs registered under same provision of law at the same police station against the applicant. Therefore prima facie the involvement of applicant as an accused in the first FIR against the same recovery which is the subject matter of second FIR lodged against him calls for further enquiry. The other piece of evidence against the applicant in the first FIR is the statement of co-accused Muhammad Saleem to the effect that 100 K.Gs. of charas recovered from him was given to him by the applicant for sale. This statement is stated to be made before the police officials. Its veracity in the circumstances needs to be adjudged in the trial.

6. Insofar as, prima facie, merits of the second FIR are concerned, the recovery of huge quantity of narcotics was effected from the office of the applicant. In his absence, his office was found locked that indicates his exclusive control over it, and availability of the property inside a locked box lying there leads to a tentative inference about conscious possession of the applicant. Applicant himself is a police official as such his false implication in absence of strong animosity, which is not borne out of any record, cannot be normally expected. The alleged raid was conducted in night hours. Provisions of Section 21(2) of CNS Act in such peculiar circumstances cannot be strictly pressed. And moreso, at bail stage such grounds cannot be taken into consideration, for doing so would amount to a deeper appreciation of material. As regards to the insistence of learned defense counsel that entry in the office of the applicant by ANF was vexatious and is punishable under section 26 CNS, Act, it may be observed that this contention on the face of it is not appreciable, because as a result of such entry huge quantity of narcotics has been recovered and except the narcotics nothing from there was seized to even prima facie attract such provisions of law.

7. In view of foregoing discussion applicant is admitted to bail in the first FIR bearing No.D030706515 subject to his furnishing a solvent surety in the sum of Rs.200,000/- and P.R. bonds in the like amount to the satisfaction of the trial court. His bail application in the second FIR bearing No.D030706615 is dismissed. The trial court is however directed to expedite the trial and conclude it preferably in 6 months. Both the bail applications are accordingly disposed of. The observations made herein above are tentative in nature. MH/W-9/Sindh Order accordingly.