2012 PLP 348 (MLD)

SYED HASAN AZHAR RIZVI, J.

Through this Criminal Bail Application, the applicant/accused who is facing trial in F.I.R. No.202 of 2011 for offence punishable under section 6/9-C of CNS Act of Police Station Gulshan-e-Maymar, Karachi, has prayed for grant of bail. The facts in nutshell are that on 23-5-2011 SIP Naseer Hussain Jafri along with other police officials of Police Station Gulshan-e-Maymar was busy in patrolling, in the meanwhile he received a spy information from the informer that at Qabrustan Survey No.77 near Filter Plant one person is selling chars, on which police party at about 0010 reached at that spot and in the lights of the mobile they found three persons are standing there having plastic bag in their hands. On seeing the police mobile they tried to escape but out of them one person was arrested by the police and he disclosed his name Hayatullah son of Abdul Rehman who had holding plastic bag in his right hand containing 110 rods of chars weighing 1100 grams folded in a rosy colour plastic bag, while other two persons fled away taking advantage of night and they also threw two bags of plastic wherein chars was also found. Recovered chars from the possession of applicant Hayatullah was sealed at the spot and police registered the case under section 6/9-C of Narcotic Substance after returning the police station against the arrested accused. The challan has already been submitted against the present applicant/accused on 7-9-2011. The applicant had filed bail application before the trial court which was dismissed vide order dated 26-9-2011 hence the instant bail application has been filed. Learned counsel for the applicant/accused contends that the applicant/accused is innocent and has falsely been implicated due to mala fide and ulterior motives. All these prosecution witnesses are from the police and no private witness has been cited. He has further contended that the F.I.R. and memo of arrest of the accused and recovery of alleged contraband from the possession of the applicant are completely silent about sending the samples to the chemical analyst. It was further argued that under the Government Analyses Rules, Rule 4(2) imposes bar on sending the samples for Chemical analysis with delay of more than 72 hours, whereas in the instant case, the property was sent to the chemical examiner after delay of 8 days without any explanation. It was further argued that the alleged recovered quantity of chars is 1100 grams which is border line case and in such type of cases the Court normally grants bail. Learned counsel for the applicant has further argued that name of the purchaser was given but no statement of the purchaser has been recorded by the I.O. Learned counsel has placed reliance on the case of 2009 PCr.LJ 315 (Sohail alias Gang v. The State), 2009 YLR 189 (Gulab Hussain v The State) and PLD 2000 Lahore 361 Learned A.P.-G has vehemently opposed the grant of bail to the applicant/accused by submitting that 11000 grams chars was recovered from the possession of accused. Recovered material instantly sealed at the spot and sent to the Chemical Analysis and report of the same is positive. Mashirnama of arrest and recovery was prepared at the spot. He further contends that under section 25 of the Control of Narcotic Substances 1997 which excludes section 103 of Cr.P.C. in narcotic cases. I have heard Mr. M. Sahib Khan Buneri advocate for the applicant and Mr. Shahid Ahmed Shaikh, A.P.-G. and perused the material available on record. The order passed by the trial court while dismissing the bail application of the applicant is very elaborate and in detail. Relevant case law of the apex court has been referred to and in the order of the trial court the same has been reproduced. In the case reported as (2010 SCMR 63) the honourable apex court has observed that the presence of the accused along with recovered narcotics suggests prima facie that he is involved in commission of offence. Sentence prescribed under section 9-c is death imprisonment or life or 14 years. It was further observed that in that case "there is possibility of further inquiry in every case therefore, it is not possible to release the accused notwithstanding the fact that he is involved in a henious criminal case particularly in which a considerable member of the society including the children, girls, men and women feeling prey to drug trafficking." From the material available on record it appears that the applicant/accused was selling heroin in odd time of night therefore no private witness was available. Recovered material was in the form of 110 rods of chars total weighing 1100 grams. Two customers /purchaser were available as per contents of the F.I.R. who after seeing the police mobile escaped from the spot taking advantage of the darkness of the night. However, as regards the arguments of the learned counsel for the applicant/ accused that the applicant/accused is innocent and has been falsely implicated due to mala fide intention and with ulterior motives is concerned, the counsel has failed to point out any material to support his such argument. It is further observed that the innocence of the applicant/accused could only be determined after recording of the evidence by the learned Trial Court. However, as challan has already been submitted before the learned Trial Court, therefore the learned Trial Court is directed to complete the trial within a period of two months' time. For the foregoing reasons, I had dismissed the instant bail application vide my short order dated 27-10-2011 and these are reasons for the same. H.B.T./F-26/K Bail refused.