IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Bail Application No. 911 of 2017

Sikandar Khan…………………..…...………………...…………………..Applicant

Versus

The State………..……………………………..…..…………………….Respondent

Date of hearing and order : 17.07.2017

Mr. A. J. K. Marwat, Advocate for applicant

Mr. Muntazir Mehdi, A.P.G.

O R D E R

Fahim Ahmed Siddiqui, J: The captioned bail application is filed on behalf of the applicant Sikandar Khan for his release from jail during trial. The applicant is involved in a criminal case initiated on the basis of FIR No. 70/2017 under Section 9 (c) of the Control Narcotics Substance Act 1997 lodged at PS Gadap City, Karachi.

2. The allegations against the applicant are that during the routine police patrolling, the police party headed by SIP Sabu Khan noticed two persons including the applicant in suspicious condition. They were intercepted and their personal search was conducted in the presence of official witnesses (due to non-availability of private witnesses). From the folds of the apparel of the applicant, one packet containing heroin, cellular phone and cash amount Rs. 4000/- were recovered. Similarly, from the fold of cloth of co-accused Afzal Khan, a packet containing hashish, a cellular phone and Rs. 3000/- were recovered. After weighing, the recovered heroin was found 1050 grams while recovered hashish came to the tune of 1100 grams.

3. While pressing the instant bail application, the learned counsel for the applicant argued the matter at length. The gist of his arguments is that the applicant is innocent and has been falsely implicated by the complainant due to animosity as the same complainant has earlier lodged another FIR bearing No. 71/2008 at the same PS against the applicant. The co-accused succeeded in getting bail from the trial Court while the bail of applicant was declined in spite of the fact that his case is at par to the case of co-accused. The statute has not distinguished between hashes and heroine as such the trial court is not justified in distinguishing the two types of narcotics at bail stage.

4. The learned APG opposed the instant bail application and briefly his arguments are that the applicant is involved in a heinous offence against the society as such he is not entitled for any concession. The family of the applicant is involved in a series of similar cases. The chemical report is positive while as per the dictum laid down by the superior courts, the punishment for the recovered narcotics is different and heavier, as such his case is distinguishing to that of the co-accused.

5. I have heard the arguments advanced and have gone through the available record. The applicant was arrested red-handed and the narcotic was recovered from his exclusive possession. Non-availability of private witnesses at the time and place of incident is quite rational, besides the official witnesses are also good witnesses if nothing on the record is available to discard their evidence. The learned counsel for the applicant has taken a plea of animosity with the complainant and he quoted FIR No. 71 of 2008. He supplied the copy of said FIR, which is under Section 341, 337-H (ii), 147, 148 and 149 PPC. The said FIR pertains to a law and order situation created by the applicant and others through which they tried to get emancipate an accused from the lawful custody. The said incident was taken place in the year 2008 while the present case was registered in the year 2017; as such the same has no nexus with the present case. Rather the FIR lodged in the year 2008 indicates the criminal tendency in the character of the applicant.

6. The learned counsel for the applicant during the course of the argument points out that the trial court has granted bail to the co-accused and case of the applicant is at par to him. In this respect, my observation is that not only the quantity of the recovered psychotropic substance, but its quality is to be considered at the time of bail or sentencing. In this respect, reliance may be taken from the case of Ghulam Murtaza v. The State (PLD 2009 Lahore 362). As per dictum laid down in the case of Ghulam Murtaza (supra), the quantity of heroin recovered from the applicant does not fall under the definition of small quantity. The dictum laid down in the said case-law is also reiterated and appreciated by the honourable Supreme Court in the case of Ameer Zeb v. The State (PLD 2012 Supreme Court 380).

7. Upon a plain and uncomplicated reading of the above referred case-laws, it is clear that the content of heroin up to 30 grams will qualify as a 'small quantity' and the same will fetch the minimum punishment, but more than that quantity would qualify as 'large or commercial quantity', which will fetch comparatively higher sentencing depending upon the recovered quantity. In my humble view, recovery of 1050 grams heroin (diacetylmorphine) from the possession of the applicant definitely falls under the category of 'commercial quantity', which was either being transported or traded with clear-cut intention of spreading this manic for the consumption of addicts would be heinous for the society. In such a situation, the applicant is not entitled for any concession, hence the instant bail application is declined. However, the trial court is directed to pace up the trial and decide the case of the applicant as soon as possible.

The above are the reasons of my short order dated 17-07-2017.

J U D G E