2017 PLP 496 (MLD)

SYED MUHAMMAD FAROOQ SHAH, J.

On dismissal of bail application vide order dated 17.06.2016, by the Special Court dealing with Control of Narcotic Substances this bail application has been preferred on behalf of the applicant Rasheeda alias Rubina presently confined at women prison, Karachi.

2. Allegations narrated in FIR No. 42/2016, under sections 6/9(c), CNS Act, lodged at P.S. Saeedabad, Karachi, are that on 09.04.2016, at about 18:45 hours, police party headed by SIP Amjad Ali, during patrolling, saw a woman sitting at the corner of Hub River Road, Saeedabad, Baldia Town, Karachi, in suspicious condition, on query she disclosed her name Rasheeda daughter of Abdul Ghafoor, having shopping bag on which words "Abu Suleman Dada Super Basmati" were written and plant of rice, flower and leaf were printed, was found in her right hand and when shopping bag was opened. Opium (Afyoon) weighing 9950 grams was found and from her search cash of Rs. 5440/-. original CNIC in her name and one cellular Nokia phone were also recovered. The contraband recovered Opium was seized at the spot. The case property was brought at the police station where FIR No. 42/2016 was lodged under sections 6/9(c), CNS Act, 1997. During investigation, it was revealed that the accused is associated with drug traffickers namely Zaheer from Punjgoor and Shewak from Turbut and one person namely Akhter from Malir Karachi. The recovered narcotics was dispatched to the Director Lab and Chemical Examiner to the Government of Sindh. In his report dated 15.04.2016 the chemical examiner affirmed the recovered narcotics to be Opium. On completion of usual investigation, final report under section 173, Cr.P.C. was submitted before the concerned Court for trial.

3. Arguments heard. Record perused.

4. The punishment provided under Section 9(c) of CNS Act, 1997 is death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b). Sub-clause (b) of Section 9 provides imprisonment, which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed on kilogram. Bare reading of Section 9 reveals that Section 9(c) is attracting in the instant case as huge quantity of Opium weighing 9950 grams was recovered from the possession of accused.

5. Insofar as association of two or more responsible persons of the locality is concerned, suffice is to say that such is not the requirement in the narcotics cases as provision of Section 25 of the Narcotic Substances Act, 1997 excluded application of Section 103, Cr.P.C. Mere fact that prosecution witnesses are police officials, by itself cannot be considered a valid reason to discard their statements; more particularly, in absence of any animosity in between the police officials and the accused, alleged recovery cannot be considered to be foisted upon her as in case of transportation or possession of narcotics, mere technicalities such as recovery by male police officials can be overlooked in the larger interest of country as they found the lady accused by chance, during patrolling, without any prior information, therefore, the lady police could not be associated. In such view of the matter, contention of learned counsel for the accused regarding non-calling of the persons from locality to witness the alleged recovered narcotic did not carry any weight.

6. Mr. Zia Awan, learned Counsel for the applicant/accused, while placing reliance on the case of Ghulam Murtaza and another v. State reported as PLD 2009 Lahore 362, submitted that the sentence provided for quantity of Opium exceeding 9 kilograms and upto 10 kilograms is imprisonment for twelve years R I. and fine of Rs. 16,000/- or in default SI for 8 months and 15 days. In para-9 of the judgment, it is further held that a woman and a child, because of their gender and tender age, are to be awarded 1/3rd less sentence of imprisonment, fine and sentence in default of payment of fine than the normal sentence prescribed for and sentence of death may not be passed against them. Such principle attained finality in case of Amir Zeb v. The State (PLD 2012 SC 380).

7. Conversely, learned Prosecutor vehemently opposes grant of bail to the applicant, who was found involved in trafficking of huge quantity of narcotics, and submitted that the entire Opium was sent to the Chemical Examiner for examination, who issued the letter in positive, hence there is sufficient material available with the prosecution to connect the applicant; more particularly, no any enmity is alleged by the accused with the police officials to show that she has falsely been implicated in this case. Learned Assistant Prosecutor General, Sindh submitted that the trial Court, while placing reliance on applicable case law, has rightly dismissed the bail application.

8. To distinguish the case of Amir Zeb and Ghulam Murtaza as mentioned supra need arises to reproduce penultimate paragraph 8 of the judgment in the case of Socha Gul v. The State reported as 2015 SCMR 1077 wherein it has been held by the Hon'ble Apex Court that ratio of judgment of Ghulam Murtaza and Amir Zeb are not relevant at bail stage:-- "It is pertinent to mention here that offences punishable under C.N.S. Act of 1997 are by its nature heinous and considered to be offences against the society at large and it is for this reason that the Act of 1997 before enlarging an accused on bail in the ordinary course. When we refer to the standards set out under section 497, Cr.P.C. for grant of bail to an accused involved in an offence under Section 9(c) of C.N.S. Act of 1997, even on that basis we find that an accused charged with an offence, prescribing various punishments, as reproduced above is not entitled for grant of bail merely on account of the nature or quantity of narcotic substance, being four kilograms. Firstly, as deeper appreciation of evidence is not permissible at bail stage and secondly, in such situation, looking to the peculiar features and nature of the offence, the trial Court may depart from the normal standards prescribed in the case of Ghulam Murtaza (supra) and award him any other legal punishment. Thus, in our opinion ratio of judgment in the case of Ghulam Murtaza (supra) is not relevant at bail stage." For the foregoing reasons, bail application in hand, having no merits for consideration, is hereby dismissed. Trial Court is, however, directed to expedite the trial of accused, who is a woman, by recording depositions of prosecution witnesses i.e. police officials as their attendance can easily be procured before the trial Court. Trial Court shall conclude the trial at an earliest, preferably within a period of three months. It is pertinent to mention here that this order, being tentative in nature, shall not affect upon the merits of the case. JK/R-23/Sindh Application dismissed.