ORDER SHEET
IN THE HIGH COURT OF SINDH, AT KARACHI.
Criminal Bail Application No. 1812 of 2016
Date Order with Signature of Judge .
Applicants: 1. Shahzad s/o Khan khaista
2. Rehman Zada s/o. Shereen Zada,
through Mr. Mahar Qadir Khan, Advocate
Respondent: The State, through Mr. Habib Ahmed, Special Prosecutor ANF.
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Date of hearing: 03.02.2017
Date of order: 03.02.2017
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O R D E R
ZAFAR AHMED RAJPUT, J:- Through instant criminal bail application, applicants/accused Shahzad s/o. Khan Khaista and Rehman Zada s/o. Shereen Zada seek post-arrest bail in Crime No. 46 of 2016, registered at P.S ANF-C, Karachi under Sections 6, 9(c), 14, 15 of CNS Act, 1997 (hereafter the “Act”). Their earlier bail application was dismissed by the learned Special Judge No. II, (C.N.S.), Karachi, in Special Case No. 721 of 2016, vide order dated 10.12.2016.
2. It is alleged that on 08.11.2016, at 1500 hours, on spy information applicants/ accused Shahzad and Rehman Zada were apprehended, who were found in possession of 2000 and 1750 grams of charas, respectively, while co-accused Zakirullah was found in possession of 250 grams of charas.
3. The learned counsel for the applicants/accused has mainly contended that the accused are innocent and have falsely been implicated in this case; that as per F.I.R. the ANF police had prior knowledge of selling charas by the accused and co-accused but inspite of that no private person was associated as mashir, while the place of occurrence is situated in populated area; that there is no previous criminal record of accused; that the Section 14 and 15 of the Act, would be applicable after the arrest of absconding accused; that co-accused, namely, Zakirullah has been enlarged on bail by the learned trial Court; that the weight of charas allegedly shown recovered from the possession of applicants by ANF is different than the weight recorded by the chemical examiner; therefore, both the accused are entitled for the concession of bail on the ground of further enquiry and rule of consistency. In support of his contentions, learned counsel for the accused has placed his reliance on following case-law:
i. Abdul Sattar vs. The State (2016 SCMR 909). In this case 42 KGs charas was recovered from the accused, containing in 21 separate packets and the weight of each packet was 2 KGs while only one consolidated sample weighing 84 grams was separated for chemical analysis. The Honourable Supreme Court of Pakistan in view of dictum laid down in the case of Ameer Zaib vs. The State (PLD 2012 SC 380) observed that the weight of only one packet 2 KGs of charas could have been considered for the purposes of appellant’s conviction and sentence; hence, the appeal was partly allowed and the sentence was reduced accordingly.
ii. Jamaluddin alias Zubair Khan vs. The State (2012 SCMR 573). In this case the charas weighing 4 KGs was picked up from the path and the same was not recovered from personal possession of petitioner and the Honourable Supreme Court of Pakistan held that the Court while hearing a petition for bail is not to keep in view the maximum sentence provided by the Statute but the one which is likely to be entailed in the facts and circumstances of the case.
iii. Muhammad Aslam vs. The State (2011 SCMR 820). In this case Honourable Supreme Court of Pakistan granted bail to accused who was found standing near 10 sacks of narcotics at the time of raid, observing that despite the incident having occurred in a busy public place of a town where many private persons were available, I.O. did not try to arrange any witness of the locality who might have seen the accused in any manner linked with the narcotics lying near the road in open space.
iv. Sikandar A. Karim vs. The State (1995 SCMR 387). In this case the Honourable Supreme Court of Pakistan has held that even for the purpose of bail the law is not to be stretched in favour of the prosecution and any benefit of doubt arising in the case must go to the accused.
v. Muhammad Fazal alias Bodi vs. The State (1979 SCMR 9)
vi. Ghulam Mustafa vs. The State and another (2010 YLR 701)
vii. Sikandar Mallah vs. The State (2009 YLR 1822). In these cases bail was granted to accused on principle of rule of consistency.
viii. Habibullah vs. The State (SBLR 2016 Sindh 1902). In this case learned Single Judge of this Court has granted bail to accused observing that as per F.I.R. neither alleged recovery was made in presence of any mashir, nor mashirnama of arrest and recovery was prepared on the spot, nor names of mashirs were mentioned in the F.I.R. and even the recovered charas was not weighed at the spot and total weight of charas was presumed to be 16 KGs and even no sample was separated from the recovered charas.
ix. Makhdoom Sajjad vs. The State (SBLR 2014 Sindh 1514). In this case the accused was found in possession of 3 KGs charas and he was admitted to bail by the learned Single Judge of this Court in view of sending the case property to Chemical Examiner with delay of 5 days and considering the sentencing policy formulated in the case of Ghulam Murtaza (PLD 2009 Lahore 362).
x. Sher Rehman vs. The State (2013 MLD 1703). In this case 3 KGs narcotic was found under the driving seat of a vehicle, being driven by the accused, who was admitted to bail considering the fact that the accused was not likely to be awarded punishment for more than two years.
xi. Shaikh Ansar Ahmed vs. The State and another (2013 MLD 1183). It has been held in this case that the violation of sections 6, 7 & 8 of the Act, punishable under Section 9 (ibid) can only be seen after recording the evidence at trial stage and presently the accused can only be saddled with penalty provided under Section 16 of the Act.
xii. Adbul Qudoos vs. The State and another (2012 YLR 2387). In this case co-accused was apprehended by the police having in possession of 27 KGs of narcotics, who disclosed that he was being patronized by the accused, hence the accused was granted bail, observing his case as of further enquiry, as no incriminating evidence existed against him except for the ambiguous confessional statement of the co-accused.
xiii. Ghulam Murtaza and another vs. The State (PLD 2009 Lahore 362). In this case full Bench of Honourable Lahore High Court has formulated a sentencing policy for cases involving recovery of contraband narcotic substances under CNS Act, 1997.
xiv. Muhammad Farrukh Khan Zai vs. The State (SBLR 2008 Sindh 527). It has been observed in this case that taking of a sample of minor quantity out of a lot would cast doubt as to whether total commodity recovered from the possession was heroin or not.
xv. Muhammad Nawaz vs. The State (SBLR 2007 Sindh 1484). In this the accused was found in possession of 10 KG charas in the shape of 10 grams packets packed in plastic bags each containing 1 KG charas but only 1 KG charas was sent to the Chemical Examiner while no samples out of the remaining 9 KGs charas were sent and the accused was admitted to bail by this Court observing that the accused at the most could be convicted under Section 9 (b) of the Act.
xiv. Gul Hassan Dero vs. The State (2000 P.Cr.L.J. 657). In this case 1500 grams charas and 500 grams heroin were recovered lying on a cot in the Otaq of accused, on information that the accused was selling narcotics in his Otaq, while as per report of Chemical Examiner the quantity of alleged charas was 1200 grams and heroin was 400 grams. The accused was admitted to bail observing the fact that there was a vast distinction in the alleged recovery and the arrest of the accused also left room for serious consideration and required recording of evidence as to whether the accused was arrested in the case on 15.07.1998 or on 16.07.1998.
xvii. Un-reported order passed by this Court in Criminal Bail Application No. 1179 of 2016. In this case the accused was admitted to bail by the learned Single Judge of this Court facing the charge of possessing 1900 grams of charas, observing that the complainant received information about the availability of accused with narcotic in bright day but he did not make any effort to associate any private person.
4. On the other hand, learned Special Prosecutor ANF has vehemently opposed this application on the ground that upon receiving spy information that the workers of notorious narcotic seller Lal Zada, the absconding accused, were selling narcotics, the accused were arrested by ANF and from their possession huge quantity of charas was recovered; that the complainant attempted to make the passer-by as mashirs but they refused; that the accused have not alleged any enmity with the officials of ANF for implicating them falsely in this case; that accused have been arrested under section 9 (c) of the Act for possessing charas and under section 14 & 15 for their association with, aiding, abetment and facilitation of offence under the Act; that the case-law cited by the learned counsel for the accused being distinguishable have no application in the case of accused and so far the case of Ghulam Murtaza (supra) is concerned, the Honourable Supreme Court of Pakistan has already held in the cases of Socha Gul vs. The State (2015 SCMR 1077) and The State vs. Javed Khan (2010 SCMR 1989) that neither categorization of sentencing nor any guess work or speculative exercise could be undertaken by the Court at bail stage to enlarge an accused on bail, which will amount to preempting the mind of the trial Court, controlling its power in the matter of sentencing an accused and determining the quantum of sentence upon his conviction.
5. I have given due consideration to the arguments advanced by both the parties and also perused the material available on record, so also the case-law cited by the learned counsel for the accused.
6. It appears that on 08.11.2016 charas weighing 2 KGs, 1750 and 250 grams were recovered from the possession of accused, namely, Shahzad, Rehman Zada and Zakirullan, respectively, which were sealed on the spot and entire sealed charas was sent for chemical examination. The report of chemical examiner reflects that three sealed white cloth bag parcels each having red wax seals weight 02 KGs, 1750 grams and 250 grams charas were received to him on very next date i.e. 09.11.2016 having net weight 01.975 KG, 1721 grams and 238 grams, respectively, the report thereof is positive; hence there is no delay in sending the case property for chemical analysis, so also there is no difference in the weight of alleged charas recorded by the complainant at the spot and by the chemical examiner. As per the contents of memo of arrest and recovery as well F.I.R., persons passing-by despite approach by the complainant reused to become witnesses in the case. F.I.R. has also been lodged promptly. Co-accused Zakirullah has been released on bail by the learned trial Court as only 250 grams of charas was allegedly recovered from his possession, for which his case falls under Section 9(b) of the Act; hence the rule of consistency cannot be applied in the case of present accused, who are likely to face trial under section 9 (c) of the Act, so also under section 14 and 15 of the Act. The accused have not alleged any enmity with the officials of ANF for their false implication. The huge quantity of charas allegedly recovered from the accused, can have devastating effect on the society. I am; therefore, of the view that sufficient material is, prima facie, available on record to connect the accused with the commission of offence and no case for granting bail to applicants on the ground of further inquiry or even on the principle of rule of consistency has been made out.
7. As regard the sentencing policy, formulated by the full bench of Honourable Lahore High Court in the case of Ghulam Murtaza (supra), I am in agreement with the learned Special Prosecutor ANF that the same has no application on the case of the accused at the bail stage, as held by the Honourable Supreme Court of Pakistan in the case of Socha Gul and Javed Khan (supra). So far the other case-law cited by the learned counsel for the applicants/accused is concerned, I am of the humble view that the same are also not applicable in the case of present accused being on distinguishable facts, the gist thereof has been mentioned above. Hence, instant bail application is dismissed, accordingly.
JUDGE
Athar Zai