2022 PLP 998 (MLD)

AFTAB AHMED GORAR, J.

Applicant Hamdullah son of Haji Muhammad Jan seeks bail after arrest in case Crime No.DEC 09/2020 registered at Police Station Custom JIAP Karachi, under sections 6, 7, 8 and 9(c) of Control of Narcotic Substances Act, 1997.

2. Record shows that earlier bail application filed by the applicant before the Special Court-II (CNS) Karachi was rejected by order dated 24.03.2021, hence this bail application.

3. Pithy facts unveiled from the FIR are that a huge quantity of methamphetamine i.e. 3.985 Kgs, concealed in parcels or cloths, was recovered; during investigation, after scrutinizing the shipment documents, cell numbers; emails the accused was found involved in commission of offence and was arrested.

4. Arguments advanced by learned counsel for the applicant and Special Prosecutor Customs are considered and record has also been perused.

5. Learned counsel for the applicant argued that applicant has falsely been implicated in this case with mala fide intention and ulterior motives and he has no nexus with the consignment. He further argued that there is no evidence against the applicant and there are contradictions in the evidence brought by the prosecution. He contended that there is violation of section 103, Cr.P.C. as no private person associated to act as Mashir of recovery and arrest of the applicant. Lastly, learned counsel for the applicant prayed that applicant may be admitted to bail as the applicant is not previously convicted, hardened and disparate criminal. To support his contentions learned counsel for applicant placed reliance upon the cases of Muhammad Ullah v. The State (2009 SCMR 954), Abdul Raheem v. The State (2019 MLD 1929), Tahir Khan and another v. The State (2019 MLD 361), Jamalud din alias Zubair Khan v. The State (2012 SCMR 573), Akhtar v. The State (2014 YLR 772), Shahid v. The State (2013 YLR 1840), Asghar Ali v. The State (2018 MLD 129), Daud v. The State (PLJ 2019 Cr.C.(Note) 100), Hakeem Jamali v. The State (2009 PCr.LJ 695), Bahadar Khan v. The State (2000 SCMR 677) and Hussain Ullah v. State and another (2019 SCMR 1651).

6. Conversely, the learned Special Prosecutor Customs opposed the concession of bail to the applicant on the ground that the applicant is involved in a crime which is a crime against society. Learned Prosecutor has emphatically submitted that it is settled that at the bail stage the appreciation of facts in depth cannot be considered and the Court at the bail stage has to look into the material available on the record, to determine the involvement of the accused in the commission of offence.

7. Admittedly, the applicant was arrested on the identification of GPO staff where he along with co-accused came to book the parcels containing contraband stuff and at this stage it cannot be decided that he had come to GPO in good faith with the co-accused being co-villager. The learned counsel for the applicant could not point out any mis-reading, non-reading of material and law available on the subject. No enmity, ill-will or grudge has been alleged against the prosecution witnesses; on the contrary, sufficient material has brought by the prosecution on the record. Case law cited by the counsel for the applicant is not attracting in the circumstances of present case. The larger interest of the public and State demands that in case of huge recovery of contraband stuff, the discretion under Section 497 of the Code of Criminal Procedure should not be exercised liberally. The apex Court in the case of The State v. Javed Khan (2010 SCMR 1989) has made the following observations in a narcotic case:- "S. 497(5)

Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51(1)

Recovery of narcotic substances

Bail, cancellation of

Death sentence

Narcotic sub stance weighing 5-1/2 kilograms was recovered from accused who was granted bail by High Court

Validity

Case of accused did not fall within prohibitory clause of S.497, Cr.P.C., as the offence was covered by section 9(c) of Control of Narcotic Substances Act, 1997, providing for various sentences, which not only fell within prohibitory clause of S.497, Cr.P.C. but also attracted the bar contained in section 51(1) of Control of Narcotic Substances Act, 1997, which was specifically made applicable to those offences which provided for punishment of death sentence

Approach of High Court releasing accused on bail was arbitrary, without application of mind and contrary to settled principles of law thus unsustainable

Supreme Court converted petition for leave to appeal into appeal and order admitting accused on bail was set aside and bail application before High Court was dismissed."

8. The Control of Narcotic Substances Act, 1997 consolidates and amends the law relating to narcotic drugs and psychotropic substances. It controls and prohibits the prosecution, processing and trafficking of these substances. It also lays progressive punishments for narcotic offences. It provides for the constitution of Special Courts having exclusive jurisdiction to try narcotic offences. Section 51 of the Act provides that bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death. When the quantity of narcotics exceeds one kilogram, the case falls in Clause (c) or Section 9 of the Act, for which death penalty or imprisonment for life has been provided. Similarly, the discretion under Section 497, Cr.P.C., can also not be exercised with regard to offences punishable with death or imprisonment for life unless the Court at the very outset is satisfied that such a charge appears to be false or groundless. Even otherwise, it is settled that for deciding the bail application the court has to observe the tentative assessment and deeper appreciation of evidence is not required and it will not be fair to go into discussion about the merits of the case at this juncture. In this respect reliance is being placed on the cases of Saleh Muhammad v. The State (PLD 1986 Supreme Court 211) and The State v. Zubair and 4 others (PLD 1986 Supreme Court 163). So far as the contention of the learned counsel for applicant that the recovery was not witnessed by persons from public, it may be observed that section 25 of CNS Act excludes the application of section 103, Cr.P.C.

9. It is not out of context to mention here that such activities are giving the country bad reputation in the international community of nations. Learned counsel for the applicant through his exhaustive and elaborate arguments wanted this Court to give its categorical and specific verdict regarding the applicant that he is not involved in the commission of offence under the Control of Narcotic Substance Act, 1997. He placed reliance on the judgments of this Court as well as the apex Court favouring him in this regard. But this Court is very much clear in its mind that no such precise verdict in criminal cases can be given as every criminal case has its own facts and circumstances. In view of whatever mentioned above, I reached at the irresistible conclusion that the applicant is not entitled to the grant of bail. Consequently, the instant bail application is dismissed.

10. Before parting, it needs not to make clarification that the observations recorded above are tentative in nature, therefore, the trial court shall not be influenced in any manner whatsoever. SA/H-20/Sindh Bail declined.