2010 SCMR 61 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

This petition has been filed against the order dated 2-5-2008 of the learned High Court of Sindh, Karachi passed in Criminal Bail No.478 of 2008. The relevant para therefrom is reproduced hereinbelow:

"The appellant is alleged to be in possession of about two Kgs. heroin and one kilo Charas and out of the same only 5/5 grams have been sent to Chemical Examiner. It is also case of the prosecution that heavy firing was exchanged between the accused persons but no injury was reported from any side. The alleged recovery is from the house and not from the exclusive possession of the applicant. In these circumstances, the case of the applicant requires further inquiry into his guilt. I, therefore, grant him bail in the sum of Rs.1,00,000 with P.R. bond in the like amount to the satisfaction of the Nazir of this Court. "

2. According to the prosecution case, as it has been disclosed in F.I.R. No.26 of 2007 registered under sections 9(C), 12, 13, 15, C.N.S. Act, 1997 at Police Station A.N.F. Clifton, Karachi, the respondent was apprehended by the staff of A.N.F. when he was in possession of two Kilograms heroin and 1.780 Kilograms Charas. Accordingly, after observing codas formalities, the narcotics were taken into possession. It is to be noted that the respondent resisted his arrest, therefore, exchange of firing took place between the raiding party and his supporters. However, he was overpowered and was taken into custody. The respondent after his arrest approached to the Special Court-I (Control of Narcotic Substances), Karachi for bail, who declined his request vide order dated 29-3-2008. The concluding para there from is reproduced herein below:-- "After hearing arguments advanced, by the learned counsel for the parties I have given careful consideration to the material available on record. The allegation against the accused is that he was found in possession of Narcotic Contraband viz. Heroin weighing abort 2.610 Kilograms and Charas weighing about 1.780 Kilograms. Applicant/accused was arrested on the spot, Musheernama of arrest and recovery was prepared on the spot, chemical report also received in positive. There was nothing on record to show that complainant party had any ill will, grudge or hostility with the accused to implicate him falsely in this case by thrusting upon huge quantity of narcotic contraband. There reasonable grounds exit to believe that the accused has committed non-bailable offence which is against the society. The offence is heinous one and against the society. In such cases bail cannot be granted as a matter of right, I, therefore, decline the request of bail. Bail application stand dismissed."

3. The respondent feeling dissatisfied with above said order, approached to -the learned High Court for bail, which by means of the impugned order has been granted, hence; this petition.

4. Learned counsel for the petitioner contended that the impugned order suffers from illegalities. The learned counsel further stated that in his opinion the order is also perverse and is not sustainable in the eye of law. According to him, the learned Judge has not taken into consideration the facts of the case carefully as a result whereof the respondent has wrongly been granted bail.

5. On the other hand, the learned counsel for the respondent contended that he has already been taken into custody in pursuance of non-bailable warrants issued by the Court on 27-3-2009. However, on merits, he stated that the trial of the case has been commenced, therefore, he is entitled to continue on bail.

6. We have heard the learned counsel of both the sides and have gone through the relevant material, which was made available' for our perusal.

7. It is to be noted that the learned 'High Court has fallen into error in entering into the facts of the case. In this behalf, the observation of the High Court that the respondent was not found in exclusive possession of the narcotic i.e. heroin and Charas is not correct because according to the prosecution case, as well as; according to the investigation officer 2.610 Kilograms heroin and 1.780 Kilograms. Charas was recovered from his possession, which he was carrying on his motorcycle. The presence of the respondent along with recovered narcotics suggest to hold prima facie that he is involved in the commission of the offence besides the sentence prescribed under section 9(c) is death or imprisonment for life, or imprisonment for a term which may extend to 14 years, therefore, he was not entitled for bail. So far as the question of submitting the Challan and making out the case for further inquiry is concerned, it has also no legal force in view of the law laid down in the case of Asmat Ullah Khan v. Bazi Khan and another PLD 1988 SC

621. In addition, it is to be noted that 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 heinous criminal case - particularly in which a considerable member of the society including the children, girls, men and women feeling prey to drug trafficking is involved. The impugned order perhaps has been composed without taking into consideration the above facts, therefore, the same is not sustainable.

8. As a result of above discussion, the petition is converted into appeal and the same is allowed. The respondent has already been taken into custody in pursuance of order passed by this Court on 27-3-2009, therefore, he shall be kept in custody and dealt with according to the law.

9. No need to observe that the trial Court shall decide the case independently without being influenced in any manner from the observations made in the instant order, as well as; by the High Court and the Special Court-I (Control of Narcotic Substances) in the orders dated 2-5-2008 and 29-3-2008 respectively. N.H.Q./S-27/SC Bail cancelled.