ORDER SHEET
IN THE HIGH COURT OF SINDH, AT KARACHI.
Criminal Bail Application No. 66 of 2017
Date Order with Signature of Judge .
For hearing of bail application.
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20.02.2017.
Mr. Syed Lal Hussain Shah, Advocate for applicant.
Ms. Rahat Ehsan, DPG.
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Through instant Criminal Bail Application, the applicant/accused Taj Nabi s/o. Zewar Gull seeks post arrest bail in Crime No. 296 of 2016 registered at SITE-B, Karachi under Section 6-9(C) of CNS Act, 1997. His earlier application bearing B.A. No. 563/2016 filed in Special Case No. 589/2016 was heard and dismissed by the learned trial Court i.e. Special Court No.1 (Control of Narcotic Substances) Karachi, vide order dated 29.12.2016.
2. The allegation against applicant/accused is that on 19.11.2016 at 1800 hours he was found in possession of 2 KG charas at Hub River Road Traffic Chowki, Baldia, SITE Area, Karachi.
3. The learned counsel for the applicant/accused has submitted that the applicant is innocent and has falsely been implicated in this case; that the applicant was infact arrested on 10.11.2016 alongwith two other persons, namely, Asghar and Aslam by the CTD police; however, subsequently said Asghar and Aslam were released by the police but the applicant was falsely implicated in this case; that there is violation of section 22 of the CNS Act as the complainant is ASI; that as per sentencing policy formulated in the case of Ghulam Murtaza and another vs. The State (PLD 2009 Lahore 362) punishment provided for possession charas up to 2 KG is four years and six months with fine of Rs.20,000-00; as such, the offence does not fall under prohibitory clause of section 497 Cr.P.C. Learned counsel for the applicant in support of his contentions has placed his reliance upon the cases of Jamal-ud-din alias Zubair Khan vs. The State (2012 SCMR 573), Muhammad Saeed Khan and others vs. The State (2016 P.Cr.L.J. 730) and Ali Nawaz vs. The State (SBLR 2015 Sindh 232).
4. On the other hand, learned DPG has opposed this application on the ground that accused was arrested by the police on the spot and 2 KG charas was recovered from his possession. She has further contended that the dictum laid down in the case of Ghulam Murtaza (supra) has no application at the bail stage and it is the trial Court that shall decide the quantum of punishment after trial of the accused. In support of her contentions the learned DPG has placed her reliance upon the case of Socha Gul vs. The State (2015 SCMR 1077).
5. I have given due consideration to the arguments advanced by learned counsel for the applicant/accused and learned DPG as well as perused the material available on record, so also the case-law cited by the learned counsel for the accused and learned DPG.
6. It appears that the applicant/accused was arrested on 19.11.2016 at 1800 hours by ASI Chaudhry Muhammad Nazeer, when he was found in possession of 2 KG charas and the F.I.R. was promptly lodged on the same day at 1915 hours. The huge quantity of charas allegedly recovered from the accused, can have devastating effect on the society.
7. So far the contention of learned counsel for the accused with regard to application of section 22 of the CNS Act is concerned, the complainant ASI was fully competent, in given circumstances, to seize the charas and arrest the accused as it is now well settled principle of law that the provisions of section 22 of CNS Act are directory in nature and any violation thereof is not fatal to the prosecution case. Requirement of obtaining search warrant could be dispensed with where a quick action is required to be taken. Reliance in this regard is placed on the case of Muhammad Akram vs. The State (2007 SCMR 1671), Mst. Nasreen Bibi vs. The State (2012 MLD 770) and Atta Ullah vs. The State (2012 YLR 794). 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 DPG 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 (supra). So far the other case-law cited by the learned counsel for the 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. 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 accused on the ground of further inquiry has been made out. Hence, instant bail application is dismissed, accordingly.
JUDGE
Athar Zai