2022 PLP 72 (YLRN)

ADNAN-UL-KARIM MEMON, J.

The Applicant namely Abdul Qadir is asking for post arrest bail in FIR No.D-0307017/2017 registered at Police Station ANF Muhammad Ali Society Korangi Karachi for offences punishable under section 6 read with sections 9(c), 14 and 15 of Control of Narcotic Substances Act, 1997.

2. Precise allegations against the applicant are that he booked the alleged parcel in Express Post Centre containing (Diazepam) 10 mg volume, each bag containing 220 strips, total 5500 strips, and each strip containing 10 tablets, total 550000 tablets weighing 9.270 kilograms, his copy of CNIC was attached with the aforesaid parcel and on that basis he has been charged with the offences punishable under section 6 read with sections 9(c), 14 and 15 of Control of Narcotic Substances Act, 1997. His post arrest bail application was declined by the trial court vide order dated 16.12.2019. Now he has approached this court on the ground that his cancelled CNIC has been misused (available at page-63 of the file) and his fresh CNIC was issued on 23.4.2019.

3. Mr. Aamir Mansoob Qureshi, learned counsel for the applicant, has argued that the whole case has been contrived against the applicant by the Anti-Narcotics Force authorities; that there is no evidence that he had got the alleged parcel booked in his name; that there is no reliable evidence that the applicant had appeared before any post office for such booking of alleged parcel; that the ANF has failed to verify that the applicant is the same person who booked the alleged parcel or otherwise. Learned counsel for the applicant has further submitted that expired copy of CNIC of the applicant was misused and fraudulently in his name somebody else got the parcel booked but the ANF did not look into this aspect of the case during the course of investigation and malafidely booked the applicant in supplementary charge sheet dated 03.04.2017. Per learned counsel, the ANF has indulged in colorful investigation as the alleged offence admittedly could not have been committed by applicant but the Investigating Officer has roped the present applicant on the basis of copy of his CNIC in the case and adversely opined against him without reasonable justification; that there is no signature on the said parcel or receipt of booking and prosecution has simply based their case on premise that his expired copy of CNIC was attached with the parcel; that the prosecution has failed to prove any link or relation of the co-accused persons with the present applicant, nor any recoveries have been effected from the present applicant during the course of investigation; that there is no sufficient evidence against him, therefore, he is entitled for concession of bail. He lastly prays that since there is no nexus of the applicant with the alleged crime, therefore, he cannot be saddled with the criminal liability.

4. On the other hand Mr. Habib Ahmed, learned Special Prosecutor, ANF strongly controverted the arguments advanced by the counsel for the applicant and debated that the applicant failed to point out animosity or ill will on the part of ANF. He submitted that the order passed by the Court below is perfect and legal and interference by this Court is not warranted under the law; that the witnesses fully supported the prosecution story and the learned trial Court has assigned valid reasons while declining the bail to the Applicant vide order dated 16.12.2019 as such the applicant is not entitled for the concession of bail. He lastly prayed for dismissal of the instant bail application.

5. I have heard the learned counsel for the parties and perused the material available on record.

6. Pivotal question before this Court is whether the applicant can be enlarged on post arrest bail in the aforesaid crime?

7. To appreciate the aforesaid proposition, I have noted that the prosecution narrated the story that on 03.04.2017 at about 1820 hours Inspector Iftikhar Hussain of Police Station Anti-Narcotics Force, Muhammad Ali Society, Korangi, Karachi lodged FIR against one Babar Jamil, who was serving in the Pakistan Post Office with the allegation that he attempted to smuggle prohibited tablets in cargo to Cambodia through Flight No. TG-0342/TG0584; that Police Party received information and reached at about 12:50 a.m. at ANF counter, Jinnah International Airport Cargo Complex. Accused Babar Jamil was seen standing at the counter with blue colour nylon bag in his right hand and shipment documents; that he was apprehended at the spot. Police secured the prohibited material under proper Mushirnama and found that prohibited medicine (Diazepam) 10 mg volume, each bag containing 220 trips, total 5500 trips, each strip containing 10 tablets, total 550000 tablets weighing 9.270 kilograms. The prohibited material was also sealed under proper Mushirnama for chemical examination. Mushirnama of arrest and recovery was also prepared; thereafter police lodged FIR under sections 6 and 9-C, 14 and 15 of Control of Narcotic Substances Act, 1997 against him and others. The present applicant being aggrieved by mentioning his name in the FIR approached this Court for protective bail which was granted till 31.5.2017 and in compliance thereof he surrendered before the trial Court and obtained Pre arrest bail but subsequently the same was cancelled and he was taken into custody. Investigating Officer recorded statements of prosecution witnesses; got conducted chemical examination of recovered prohibited material and obtained its report on 11.4.2017. Finally, Investigating Officer submitted Charge Sheet on 19.4.2017 before Special Court for C.N.S. Karachi.

8. Tentative assessment of the record shows that the narcotic substances were not recovered from the immediate possession of the applicant. Applicant's CNIC has been used on the alleged cargo dispatch. If this being the position of the case, it was prime duty of the Investigating Officer to have arranged identification of the applicant through the witness who allegedly seen him appearing in his office while booking the alleged parcel which piece of evidence has been withheld without assigning any reason. His identification as booking man and use of his CNIC for such purpose is yet to be determined by the trial court as to whether he is the same person or otherwise. I have noted that the learned trial Court vide order dated 16.12.2019 dismissed the bail application of the applicant by relying upon the statement of PW Majid, Booking Clerk in Express Post Centre that applicant appeared and booked the parcel by showing his CNIC, such copy was secured by the Investigating officer, such stance of the prosecution has been denied by the applicant on the premise that his CNIC was already expired long ago as such this copy cannot be made basis of his involvement in the alleged crime. Be that as it may, prima facie, the applicant joined investigation and nothing incriminating material was secured from him. Besides that no identification has taken place to see whether he was the same person who came in the office and booked the alleged parcel which needs through probe in the matter which can only be done at the trial.

9. I am cognizant of the fact that this Court vide order dated 14.07.2017 dismissed the bail application of the co-accused Babar Jameel on merit with the following observation:- '

7. Record reflects that applicant is arrested red-handed with possession of 9.270 kilograms of Diazepam Tablets (Psycho-tropic Substances). Chemical Examination Report supports the prosecution case. The recovery of Diazepam tablets was duly witnessed by the police officials who are as good witness as any other person and who had no ostensible reason to falsely implicate the applicant in a case of present nature. Case of the applicant is hit by prohibition clause contained in section 51 of the Control of Narcotic Substances Act, 1997. Diazepam is mentioned in section 2(za) at serial No. 24 of schedule of Control of Narcotic Substances Act, 1997 which comes within the definition of Psychotropic substances and is prohibited to possess and transport dispatch, deliver on any terms whatsoever. Applicant, at this juncture has failed to substantiate his claim that alleged recovered Diazepam (Psychotropic substances) is for the exceptions as provided in the law, therefore no case of further enquiry is made out.

8. I have noted that Applicant has failed to produce any material to suggest that he is falsely implicated in the alleged crime. Merely saying that Applicant only performed duty as porter to dispatch the cargo is not sufficient to discard the prosecution story as false, which is even otherwise a factual controversy and, at bail stage only tentative assessment of the record is to be made.

9. The offence falls under section 9(c) of Control of Narcotic Substance Act, 1997 which is punishable with life imprisonment.

10. The case law cited by the learned counsel for the Applicant is distinguishable from the facts and circumstances of the case in hand.

11. In view of the above facts and circumstances the Applicant has not made out a case for grant of bail at this stage therefore, the instant bail application is dismissed.

12. The findings mentioned above are tentative in nature which shall not prejudice the case of either party at the trial stage. However, the learned Trial Court is directed to record evidence of the material witnesses within a period of two months where after the applicant will be at liberty to move fresh bail application before the learned Trial Court on fresh ground, if any.

13. That above are the reasons of short order dated 14.7.2017."

10. In view of above facts and circumstances of the case, applicant has made out a case for grant of Post arrest bail. The instant bail application is allowed subject to furnishing solvent surety in the sum of Rs.500,000/- (Five Hundred Thousand only) and P.R. bond in the like amount to the satisfaction of trial Court.

11. The above observation is tentative in nature which shall not prejudice the case of either party at the trial. The learned Trial Court is directed to conclude the trial within a period of two months from the date of receipt of this order and submit compliance report through MIT-II of this Court.

12. That above are the reasons of my short order dated 14.01.2020, whereby I have allowed the bail application of the applicant. Criminal Bail Application No.1988/2019 stands disposed of in the above terms. SA/A-60/Sindh Bail granted.