2017 PLP 874 (YLR)

SHAHNAWAZ TARIQ, J.

Through captioned post arrest bail application, applicant Qamar Zaman has impugned order dated 01.02.2016, passed by learned Special Judge CNS-II, Karachi, whereby his earlier bail application was declined.

2. Necessary facts as narrated are that on 24.11.2015, complainant ASI Attaullah Khan Jadoon of PS ANF Clifton, received spy information that narcotics peddler namely Qamar Zaman along with heavy Ice Crystal (Methamphetamine) concealed in bag, will fly by Shaheen Airline Flight No.NL-751 in between 0400 to 0500 hours through International Airport to Saudi Arabia. Complainant left PS at 0300 hours along with his subordinate and informer and reached at J.I.A.P., Karachi at 0400 hours and at about 0430 hours, on the pointation of informer at International Departure Lounge, applicant was apprehended and from his black colour bag, transparent plastic packing containing Ice Crystal (Methamphetamine) weighing 1.090 Kgs was recovered, hence instant FIR.

3. Learned counsel for the applicant contended that complainant received information many hours before the incident but he did not hire any private person to act as mashir; that applicant is behind the bar since his arrest but till-date no charge has been framed against him; that allegedly 1.090 Ice Crystal (Methon Phetomiano) was recovered from the bag of applicant but in mushirnama no specific shape of the said substance has not been mentioned; that complainant himself investigated the case, which reflects his ulterior motives; that applicant is permanent resident of Karachi, hence there is no apprehension of his absconding. Learned counsel relied on 2016 SCMR 1424, 2009 MLD 133, 2009 PCr.LJ 1273, 2014 YLR 188, 2014 YLR 632, PLJ 2012 Cr.C(Lahore) 174(DB) and PLJ 2012 Cr.C. (Lahore) 908 (DB).

4. While controverting the above submission, learned Special Prosecutor ANF has contended that applicant was apprehended at Airport and Ice Crystal was recovered from his bag, hence he is not entitled for bail. However, learned prosecutor conceded that charge has yet not been framed against applicant before the learned trial Court.

5. Heard arguments advanced by learned counsel for the parties and perused the record, which emanates that applicant was apprehended and Ice Crystal (Methon Phetomiano) weighing 1.090 Kgs was recovered from his possession. Undeniably, complainant received a complete and specific information at PS ANF Clifton, and informer remained available with him since conveying of information till recovery of narcotics substance. Complainant had a plenty of time after receiving the information at PS to associate any private person to act as mashir to maintain the transparency of the recovery of narcotics substance but he did neither make any serious efforts to hire any public person nor associated any private mashir prior to the intercepting the applicant and such demeanor of the complainant in absence of plausible explanation, could not be ignored as routine matter though section 25 of CNS Act, 1997, has excluded the applicability of the provisions of section 103, Cr.P.C. in narcotic cases lodged under this Act, and police witnesses are also trustworthy, but even then it was incumbent upon the complainant to give preference to the independent witnesses and he should have associate the private persons to act as mashir. In the case of The State v. Bashir and others, PLD 1997 SC 408, the honourable Supreme Court while dealing with the issue of applicability of the provisions of section 103, Cr.P.C., has observed as under:-- "As regards the above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirement of section 103, Cr.P.C. namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. In this regard, it will suffice to refer to a recent Judgment of this Court in the case of Mushtaq Ahmed v. The State, PLD 1996 SC

574. In the case in hand SIP Muhammad Rafique has not been able to give any cogent explanation as to why he was unable to secure two Mashirs from the public."

6. Perusal of FIR further reflects that complainant did not mention the specific shape of packing of recovered substance as whether entire substance was packed in one or more packets. Similarly, there is no any detail of mode of weighing of the recovered substance that either it was weighed with its packing or in its pure shape to assess its total weight. If the recovered Ice Crystal (Methamphetamine) was weighed along with its polythene packing, definitely the weight of Ice Crystal without the polythene packing might would be less that 1000 grams and in that eventuality, the case of applicant would fall within canvas of section 9(b) of CNS Act, 1997. Indeed, quantity of narcotics substance allegedly recovered from the applicant was marginally higher from one thousands grams, thus it is a borderline case between clauses (b) and (c) of section 9 of Control of Narcotic Substances Act, 1997. Section 9(C), CNS Act, 1997, provides punishable up to fourteen years if quantity of recovered narcotics substance is less than 10 Kg, while in present case, considering the quantity of recovered narcotics substance from the applicant, there is no possibility of awarding the maximum punishment provided in said section. It is well established proposition of law that while adjudging the question of bail, Court should consider the minimum aspect of the sentence prescribed for the alleged offence in schedule.

7. In the present case Challan has been submitted and applicant is no more required for further investigation. Admittedly, all PWs are police officials and to procure their attendance is not a difficult task for the prosecution, hence there is no apprehension of tempering with prosecution evidence. Admittedly, applicant was apprehended on 24.11.2015, nevertheless during the period of one year, even charge has not been framed against the applicant, thus early commencement of trial is not expected in near future. Moreover, prosecution has not furnished any substance that applicant was involved in similar nature cases in past nor he is previous convict, and being the permanent resident of Karachi, there is no probability his abscondence, thus further detention of applicant in jail will not serve any useful purpose.

8. Considering the above circumstances, the applicant has succeeded to make out the case for further inquiry as envisaged in Section 497(2). Consequently, the applicant is enlarged on bail on furnishing solvent surety in the sum of Rs.200,000/- (Rupees two lacs only) and P.R. bond in the like amount to the satisfaction of learned trial Court. The observations made above are tentative in nature and learned trial Court shall decide the case strictly on merits. Bail application stands disposed of in the above terms. JK/Q-7/Sindh Bail granted.