2016 P Cr (PLP)

SYED SAEEDUDDIN NASIR, J.

The applicants Zar Wali and Niaz Wali both sons of Noorzali seek post arrest bail after the same was declined by common order dated 02.07.2015 passed by the learned Judge, Special Court-I, (Control of Narcotic Substances), Karachi in connection with Crime No.15/2015 of Police Station ANF-I, Gulshan-e Iqbal, Karachi offence under section-9(b) of Control of Narcotic Substances Act, 1997. Since the accused are nominated in the same FIR, therefore, I intend to dispose of Cr. Bail Applications Nos. 832/2015 and 833/2015 by this common order.

2. Brief facts of the case according to the FIR are that on 07.06.2015, at 2000 hours, Inspector Naeem Khan Bhatti, complainant of P.S., ANF, Gulshan-e-Iqbal, Karachi, lodged his report stating therein that on 07.06.2015, he was present at P.S., ANF, Gulshan-e-Iqbal, Karachi, when special informer gave him information that famous narcotic sellers Zar Wali and Niaz Wali are openly selling narcotics near Kabuli Market, Bangash Hotel Street, Nazimabad No.2, and if immediate action will be taken then arrest and recovery will be surely made. On receipt of said information and on the direction of his higher officials he constituted a raiding party consisting himself, Subedar Imran Farooq, P.C. Abdul Shakoor, P.C. Safdar, P.C. Muhammad Qasim, Sepoy Ghous and other ANF staff, Driver/H.C. Muhammad Ali, under supervision of Assistant Director Incharge of P.S.Noman Haneef duly armed with official weapons on government vehicle Double Cabin along with special informer left their P.S. vide roznamcha entry No.3, at 1230 hours, and reached near Kabuli Market, Bangash Hotel Street at 1330 hours and on the pointing of special informer they saw two persons having blue colour shoppers present who were apprehended. The complainant requested passerby people to act as witness but they refused to do so. He then while citing P.C. Safdar and P.C. Muhammad Qasim as mashirs inquired names etc; from accused persons on which first accused disclosed his name as Zar Wali son of Noor Zali Khan, resident of House No.175, Muhallah Pir Bukhari Colony, Sabzi Mandi, Karachi. He recovered blue colour shopper from his right hand, checked the same and recovered Charas in shape of rods wrapped in pink colour plastic. He also took the personal search of accused and recovered Rs.350/- Pakistani, CNIC in the name of accused and mobile phone Nokia along with Sim from right side pocket of his shirt. He weighed the secured charas along with shopper which becomes 700 grams (gross). He sealed the secured charas in white cloth theli for the purpose of chemical examination. The second accused disclosed his name as Niaz Wali son of Noor Zali Khan, resident of House No.175, Muhallah Pir Bukhari Colony, Sabzi Mandi, Karachi. He recovered blue colour shopper from his right hand, checked the same and secured charas lying in plastic purees. He weighed the secured charas along with shopper which becomes 350 grams (gross). He sealed the secured charas along with blue colour shopper in white cloth theli for the purpose of chemical examination. He also took the personal search of accused and recovered Rs.250/- and different chits and cards from right side pocket of his shirt. He then arrested the accused and prepared such mashirnama of arrest and recovery on the spot, and obtained the signatures of mashirs on it.

2. The learned counsel appearing for the accused has inter alia argued that the applicants/accused are innocent and have been falsely implicated in the present case by the Police; nothing has been recovered from the possession of applicants/accused and the alleged recovery of charas has been foisted upon them; the applicants were arrested from a thickly populated area with prior spy information, but no steps were taken by the complainant to fulfill the mandatory requirement contemplated by section 103, Cr.P.C. for securing presence of two respectable and independent persons of the locality to be the mashirs of recovery, therefore, the case falls within section 497(2), Cr.P.C. and requires further inquiry; that the alleged recovery from either of the applicant/accused does not fall within the prohibitory clause of section 497, Cr.P.C., therefore, the applicants/accused are entitled to be enlarged on bail; that section 9(b) of C.N.S. Act, 1997 provides for maximum punishment of 7 years if the narcotics substance alleged to have been recovered from the accused does not exceed one K.G.; final challan has been submitted by the prosecution with the trial Court, therefore, the applicants/accused are no longer required by the prosecution for further investigation.

3. Mr. Habib Ahmed, the learned Special Prosecutor, ANF has candidly admitted that the offence under section 9(b) of the C.N.S. Act, 1997 provides for maximum punishment of 7 years if the narcotics substance alleged to have been recovered from the accused does not exceed one k.g., however, he has recorded his objection to the grant of bail.

4. I have heard the learned counsel for the parties, perused the material available on the record of the case. It is an admitted position that the applicants were arrested from a thickly populated area with prior spy information, however, no efforts were made by the complainant to fulfill the mandatory requirement as contemplated by section 103, Cr.P.C. for securing presence of two respectable and independent persons of the locality to be the mashirs of recovery, the recovery memo shows discrepancies with the actual weight of charas alleged to have been recovered, therefore, the case falls within section 497(2), Cr.P.C. and requires further inquiry.

5. The offence alleged to have been committed by the applicants/accused falls under section 9(b) of C.N.S. Act, 1997 which provides for maximum punishment of 7 years if the narcotics substance alleged to have been recovered from the accused does not exceed one K.G., in the instant case the alleged recovery from either of the applicant/accused does not exceed one kilogram, therefore, the case of the applicants/accused does not fall within the prohibitory clause of section 497, Cr.P.C., final challan has been submitted by the prosecution with the trial Court, therefore, the applicants/accused are no longer required by the prosecution for further investigation. Therefore, the applicants/accused are entitled to be enlarged on bail.

6. I, therefore, for the aforesaid reasons, admitted the applicants/accused on 24.07.2015, to bail subject to their furnishing solvent surety in the sum of Rs.100,000/- each with P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.

7. It is, however, made clear that the observations made hereinabove being tentative in nature, shall not prejudice the case of either party before the trial Court. Above are the reasons for the short order dated 24.07.2014 announced in open Court. HBT/Z-8/Sindh Bail granted.