2014 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Having remained unsuccessful in obtaining their release on bail in the case F.I.R. No.8/2013, dated 13-4-2013, under section 9(c) of the Control of Narcotic Substances Act, 1997, of Police Station Abad, District Jacobabad, the applicants Syed Gulab Shah and Muhammad Mithal Mahar are seeking their release on bail through instant bail application.

2. The facts of the prosecution case as per F.I.R. lodged by complainant ASI Anees Ahmed Soomro on 13-4-2013, at 1230 hours with Police Station Abad, are that on 13-4-2013, he along with other subordinate staff left CIA Office vide roznamcha entry No.5, at 0900 hours in official mobile Vehicle No. SP-4116, driven by PC Muhammad Ali for investigation of the case under Crime No.05/2013 of Police Station Abad; they reached near Mehar-Shah where they received spy information that one white colour Mehran Car coming from Jacobabad side, wherein charas was lying. On such information they started checking the vehicles and at 1030 hours, they saw one white colour Mehran Car bearing No. AB-8892, coming from Jacobabad, which was got stopped by them. The complainant by appointing PC Lal Muhammad and PC Ali Khan as mashirs alighted two persons sitting in the car and on enquiry the person seated on front seat disclosed his name as Syed Gulab Shah son of Syed Hyder Shah disclosed his name as Muhammad Mithal son of Muhammad Chuttal Mahar, and on search of car, the complainant party recovered one yellow colour gunny bag from the car, wherein they found 8 packets of the charas. The complainant got weighed the same through PC Lal Muhammad which become 8 kilograms. The complainant party also recovered Nokia mobile phone 1112 and one currency note of Rs.500 from possession of Syed Gulab Shah and a Nokia mobile phone C-1 and four currency notes of Rs.100 from Muhammad Mithal. 200 grams of charas was separated from each packet for the analysis and such mashirnama of recovery was prepared on spot.

3. Heard the learned counsel for the applicants, learned State Counsel and have perused the police papers with able assistance of the learned counsel for the parties.

4. Learned counsel for the applicants mainly contended that the case against the applicants is false and has been registered due to enmity. Besides, according to him the case of applicants is based upon the evidence of police officials and they are subordinates to the complainant, therefore, their evidence in this case cannot be safely relied upon. He has further submitted that recovered charas is foisted upon the applicants; the CIA Police is not empowered to recover the narcotic substances and there is delay in sending the samples to the Chemical Examiner, as such under these circumstances learned counsel was of the view that it is a case of further probe, therefore, the applicants are entitled for concession of bail. In support of his arguments, learned counsel has relied upon case-law reported in 2011 MLD 958, 2012 MLD 1542 and 2012 MLD 220.

5. On the other hand learned counsel appearing for the State opposed the grant of bail, maintaining that the applicants are involved in case of serious and heinous in nature and also against society. According to learned State Counsel eight packets of charas weighing 8 kilograms were recovered from possession of applicants, and out of each packet 200 grams were separated and sent for chemical examination and report; such mashirnama was prepared on spot in presence of mashirs who have no inimical terms with the applicants. He has further argued that report of the Chemical Examiner is positive, which connect the applicants with the commission of alleged offence which falls within the prohibitory clause of section 497, Cr.P.C.

6. I have given my anxious thought to the contentions raised at the bar and have gone through the case papers as well as case law cited by learned Advocate for the applicants.

7. Since both the applicants, are nominated in the F.I.R. with specific allegation that they were found in transportation of eight kilograms of charas through white colour Mehran Car, which was under their control at the time of their arrest. No doubt, the complainant did not associate the private person as Mashir or witness to alleged recovery and only relied upon his subordinates; in my tentative view that mere fact that the witnesses are police official cannot be considered as a good ground to grant bail or discard their evidence except some mala fides appears on the part of police officials. No documentary proof has been shown or produced with the instant bail application regarding enmity or ill-will of applicants with the complainant party to falsely involve them in this case. In order to meet the plea of learned counsel that the recovery mashirs are two police officials, therefore, their evidence cannot be relied upon safely, in this regard, I myself have gone through section 25 of the C.N.S. Act, 1997; which is clear and excludes the application of section 103, Cr.P.C. in narcotic matters. In this regard I am supported with case-law reported in PLD 2009 SC 39 and 2001 SCMR 36.

8. Another ground raised by the learned counsel for the applicants regarding delay in sending the sample to the Chemical Examiner is concerned; rule IV and V have placed no bar on the Investigating Officer to send the sample beyond 72 hours of the seizure of the narcotic substances. While, to consider the ground taken by the learned counsel that CIA Police is not empowered to effect recovery of narcotic substances, it is deeper appreciation of evidence which is not permissible at bail stage, therefore, the case-law relied upon by the learned counsel for applicants in this regard is totally distinguishable to the facts of the present case. In the present case, the applicants were apprehended on spot along with huge quantity of charas; no enmity or ill-will has been brought on record by the applicants against the complainant, therefore, I am of the opinion that the applicants have failed to make out a case for grant of bail, resultantly the bail application stands dismissed. MWA/G-37/K Bail refused.