2001 P Cr (PLP)

Gulzaman v. The State 1999 SCMR 1271 and The State through Deputy Director, Anti‑Narcotic Force, Karachi v. Syed Abdul Qayum 2001 SCMR 14 ref. M.A. Kazi for Applicant. Shoaib Ashraf, Special Prosecutor for A.N.F. By this order we propose to dispose of both these bail applications as they arise out of the same Crime No.23 of 2000 Police Station Anti Narcotic Force, Gulshan‑e‑Iqbal, Karachi. In this crime the applicants have been sent up for trial before the Special Court, Control of Narcotic Substances, Karachi Division, for offence under sections 6 and 9 of the Control of Narcotic Substances Act, 1997, (hereinafter referred to as the Act of 1997). The allegations against the applicants are that on 26‑8‑2000 at 12‑00 hours, on spy information, when a Car bearing No.V‑5674, driven by applicant Sheikh Muhammad Iqbal was stopped and searched, a small round drum was recovered, from the rear seat of the car, wherein 20 kilograms phenobarbital powder was found in a polythene bag. From this quantity 50 grams were separated and sealed for chemical examination and rest of the powder was again kept in the drum and sealed. Accused Shaikh Muhammad Iqbal was arrested on the spot, who disclosed that he had purchased this phenobarbital powder from one Ameer Ali Aghakhani, the other applicant before this Court. On such statement applicant Ameer Ali was also arrested on the same day, who during interrogation disclosed that this phenobarbital powder was purchased by him from Messrs Rameez Traders and M. Akhtar Hussain and subsequently he sold it to the other applicant Shaikh Muhammad Iqbal. The owners of Rameez Traders were also interrogated, however, in their statements they denied such allegations. Bail applications moved by the two applicants before the Special Court/trial Court were dismissed vide order, dated 15th January, 2001 for the reasons that the‑ offence for which two applicants have been charged falls under section 9(c) of the Act, 1997 and thus, bar contained in section 51 of the Act of 1997 is attracted in their case and they were not entitled for bail. We have heard arguments of Mr. M.A‑Kazi, Advocate for applicant Sheikh Muhammad Iqbal in Bail Applicatiof No. 171 of 2001. Mr. Aijaz Ali Mangi, Advocate for applicant Ameer Ali in Bail Application No. 135 of 2001 and Mr. Shoaib Ashraf, Special Prosecutor for Anti Narcotic Force in both the bail applications. Mr. M.A. Kazi in his arguments contended that as per the allegations of prosecution on arrest of applicant Sheikh Muhammad Iqbal 2.0 kilograms of phenobarbital powder was recovered from his car which is covered by the definition of psychotropic substance was defined under section 2(za) of the Act of 1997 read with item No.67 of the Schedule to section 2(za) of the Act. Phenobarbital powder recovered from him was purchased by him under a valid receipt from co‑accused Ameer Ali and such purchase receipt was' produced by him. The recovered substance (phenobarbital) is only used for medical purposes and, therefore, case of the applicant was covered by the exception clause available under section 6 of the Act of 1997 which provides that if such substance was meant for medical, scientific or industrial purposes in the manner and subject to such condition as may be specified by or under the Act of 1997 or any other law for the time being in force then it would not be an offence punishable under section 9 of the Act of 1997. Learned counsel in this context also referred several books on pharmacology to show that the seized powder is used for treatment purposes only and thus, at best if any offence was committed by the applicant Shaikh Muhammad Iqbal that was only in respect of non‑holding of a valid licence required under the Drugs Act, 1976. He further contended that the ested on 26‑8‑2000 as mentioned in the F.I.R. but on 24‑8‑2000 at 10 a.m. from his house and later on a false case was set‑up against him as recorded in the F.I.R. which fact is confirmed from the telegram dispatched by the father of co‑accused to the Honourable Chief Justice High Court of Sindh on 25‑8‑2000. In such circumstances the only fault for which the applicant Shaikh Muhammad Iqbal can be penalized or punished is non‑holding of a valid licence/permit for purchase and possession of phenobarbital powder, which is punishable under section 16 of the Act of 1997 and provides punishment up to one year and fine to the extent of Rs.5,000 or both. Mr. Kazi, therefore, urged that the applicant Shaikh Muhammad Iqbal is entitled for the concession of bail. In support of his arguments, learned counsel placed reliance upon a case reported as 1972 PCr.LJ 165, which relates to a case under section 13(e) of the Pakistan Arms Ordinance, 1965. Mr. Aijaz Ali Mangi, learned counsel for co‑accused/applicant Ameer Ali in Criminal Bail Application No. 135 of 2000 contended that the case of applicant Ameer Ali is on much better footing as admittedly nothing has been recovered from him. Learned counsel contended that the only evidence available with the prosecution against applicant Ameer Ali is the statement of co‑accused Shaikh Muhammad Iqbal which has no evidentiary value and in such circumstances following the rule laid down m the case of Gulzaman v. The State 1999 SCMR 1271 and in another case, The State through Deputy Director Anti‑Narcotic Force, Karachi v. Syed Abdul Qayum 2001 SCM&14, the applicant is entitled for the concession of bail. Mr. Shoaib Ashraf, Special Prosecutor for the A.N.F. strongly opposed both the bail applications and contended that admittedly 20 kilograms of psychotropic substance has been recovered from the applicant Shaikh Muhammad Iqbal and thus;, he is guilty of an offence punishable under section 9(c) of the Act of 1997‑which provides punishment of death sentence and fine up to Rs. 1 million and with reference to the quantity of psychotropic substance recovered from the applicant Shaikh Muhammad Iqbal even the minimum punishment prescribed is imprisonment for life, and in such circumstances bar of section 51 of the Act of 1997, is clearly attracted in the matter, disentitling the applicant for the concession of bail. Replying to the contention of Mr. Ashraf Kazi with reference to non‑holding of a licence, learned counsel contended that even if phenobarbital powder is a drug within the meaning of "drug" as defined under section 2(g) of the Drugs Act, 1976 then it was mandatory for the applicant Sheikh Muhammad Iqbal to have obtained a valid licence in case he intended to use the said phenobarbital powder for medical purposes. At this stage, therefore, it cannot be said that the case of applicant Sheikh Muhammad Iqbal would fall under the exception provided in section 6 of the Act of 1997. In reply to the arguments of Mr. Shoaib M. Ashraf, learned counsel contended that apart from the statement of co‑accused there is also statement of P.W. Muhammad Hanif Khan recorded under section 161, Cr.P.C. against the applicant Ameer Ali and the counter‑file receipts book from which the purchase receipt recovered from accused Shaikh Muhammad Iqbal was issued by accused Ameer Ali. In such circumstances rule laid down in the two cases referred by the learned counsel is not attracted to the present case and, therefore, bail application of co‑accused Ameer Ali is also liable to be rejected. We have carefully considered the arguments advanced by the learned counsel and minutely examined the relevant record. A combined reading of the relevant provisions of law viz. section 2(za) read with item No.67 of the Schedule under section 2(za). Sections 6, 9, 16 and 51 of the Act of 1997, makes it abundantly clear that the substance viz. 20 kilograms phenobarbital powder recovered from the applicant Sheikh Muhammad Iqbal is psychotropic substance and thus, an offence under section 6 of the Act is prima facie made out against the applicant and looking to its quantity same is punishable under section 9(c) of the Act. The minimum punishment prescribed for such offence is imprisonment for life and up to death sentence with fine of Rs.1 million. Thus, it is clear that the bar contained under section 51 of the Act is also attracted in this case. In such circumstances contention of the learned counsel that the offence committed by the applicant Sheikh Muhammad Iqbal is simply an offence for non‑holding of a valid licence, which is punishable under section 16 of the Act and provides punishment up to one year and fine of Rs.5,000 has no force. A plain reading of section 6 of the Act further goes to show that under this provision of law, for the purpose of exception, no distinction has been made between narcotic drugs, psychotropic substance or controlled substance and similarly under section 9 of the Act also, for the purpose of punishment, no distinction has been made with reference to these drugs/substances. It has not been disputed before us by Mr. M.A. Qazi that the alleged substance recovered from the accused Shaikh Muhammad Iqbal is covered by the definition of psychotropic substance within the meaning of section 2(za) of the Act of 1997 and admittedly the applicant was not holding any licence under any law for the time being in force for purchase or retaining the possession of this psychotropic substance viz. phenobarbital powder that too in the quantity of 20 kilograms. No doubt phenobarbital powder is also covered by the definition of drug as defined under section 2(g) of the Drugs Act, 1976 and same is used for medical purposes also but this by itself will not bring the case of applicant Shaikh Muhammad Iqbal within the ambit of exception as provided under section 6 of the Act. In the acts and circumstances of the case as discussed above at this stage no case for grant of bail is made out in favour of the applicant Sheikh Muhammad Iqbal. Accordingly his bail Reverting to the case of other applicant Ameer Ali it will be seen that according to the prosecution's own case no recovery of any psychotropic substance was made from him and he was arrested from his house as the co- accused applicant Sheikh Muhammad Iqbal during investigation had disclosed that he had purchased the alleged psychotropic substance from accused Ameer Ali and such alleged purchased receipt was also produced by him. On these facts ratio of two cases referred by the learned counsel for the applicant Ameer Ali is fairly attached to his case. Perusal of case record further reveals that other prosecution witness Muhammad Hanif in his 161, Cr.P.C. statement recorded on 20‑9‑2000 did not specifically charge the applicant with the allegations of sale of psychotropic substance to the other accused Sheikh Muhammad Iqbal but he only stated about sale of some chemical to him. As regards the alleged recovery of counter‑file receipts book from accused Ameer Ali it is pertinent to mention here that though according to prosecution case the alleged transaction of sale and purchase of 20 kilograms of psychotropic substance between the applicants took place on 26‑8‑2000 and on the same day accused Ameer Ali was arrested and counter file receipts book was also recovered from him but strangely recovery of Rs.4,00,000 or any part thereof, allegedly paid by Shaikh Muhammad Iqbal to Ameer Ali on the same day, could not be made from him. Not only this but it is also significant to mention that on 25‑8‑2000 father of applicant Ameer Ali had sent a telegram to the Honourable Chief Justice of Sindh High Court wherein he had complained about the arrest of applicant Ameer Ali and his other son Salim Raza at the hands of Anti Narcotic Force Personnel from his house on 24‑8‑2000 at 13‑30 hours. Considering all these facts we are of the view that applicant Ameer Ali is entitled for grant of bail. Accordingly his bail application is allowed and he is ordered to be released on bail on furnishing security in the sum of Rs.5,00,000 (five lacs) and P. Rid in the like amount to the satisfaction of trial Court. N.H.Q./A‑162/K Order accordingly.