ORDER SHEET

THE HIGH COURT OF SINDH AT KARACHI

Cr. Bail Application No.570 of 2019

 

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Date                      Order with Signature(s) of Judge(s)

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1.   For orders on office objection at ‘a’

2.   For hearing of Bail Application.

 

Mr. Gul Faraz Khan, Advocate for Applicant.

 

Mr. Ali Haider Saleem, Deputy Prosecutor General Sindh alongwith I.O. Syed Mohammad Sadqain, AETO PS Excise-PIO, Karachi

 

Date of hearing     :         24.5.2019

 

Date of Order        :         24.5.2019

 

 

ORDER

 

Abdul Maalik Gaddi, J. – By this bail application under Section 497 CrPC, applicant Mst. Agha Bibi has approached this Court for grant of bail in crime No.06/2018 registered at Police Station, Excise, Karachi, wherein she has been charged with the commission of the offence under Section 9-C C.N.S. Act, 1997.

 

2.       Brief facts of the case are that complainant AETO Syed Mohammad Sadqain of PS Excise-PIO, Karachi lodged FIR on 28.11.2018 at about 1915 hours and alleged therein that he along with other excise officials reached at Hub River Road Raees Goth, near Lucky Roundabouts at about 0800 hours and held Nakabandi and at about 1530 hours on pointation of spy stopped a car bearing registration No.AYR-256 coming from Hub City and apprehended a male namely Abdul Hannan and a lady namely Agha Bibi and from the feet of lady accused a white cloth bag was secured and from the boot of the vehicle a brown color cloth bag secured and upon checking from each cloth bag 10/10 packets of Chars weighing 20 Kgs recovered. The Chars was in shape of packets and rods. After observing required formalities at the spot, both the accused brought at PS along with recovered contraband Chars and the car where present FIR was lodged.

 

3.       Learned counsel for the applicant has contended that the lady accused is innocent and falsely implicated in this case and no any contraband stuff recovered from her physical possession; that despite of prior information no independent witness cited as a recovery Mashir as according to him incident took place at 3:30 p.m. and place of incident was a populated area. Therefore, according to him there is a violation of Section 103 CrPC; that the complainant himself conducted investigation of the case, therefore, his investigation cannot be safely relied upon; that all recovered contraband chars was sent to chemical examiner but till yet no any chemical examiner report has been submitted and applicant is behind the bars since her arrest, therefore, according to him it is yet to be determined whether the alleged chars allegedly recovered from the applicant was chars or otherwise. Therefore, applicant under these circumstances is entitled for bail. In support of his arguments, learned counsel for applicant has relied upon the case-laws reported in the case of Ateeb-ur-Rehman @ Atti Mochi vs. The State reported in 2016 SCMR 1424 (2) Khuda Bux vs. The State reported in 2010 SCMR 1160, (3) Asghar Ali vs. The State reported in 2018 MLD 129, (4) Jamaluddin vs. The State reported in 2012 SCMR 573, (5) Ashiq Hussain vs. The State reported in 2004 PCrLJ 311, (6) Syed Ghulam Mustafa vs. The State reported in 2007 PCrLJ 139, (7) Noor Muhammad vs. The State reported in 2007 YLR 1973. He has also relied upon unreported bail order of this Court in Cr. Bail Application No.1693/2018 dated 17.5.2019.

 

4.       On the other hand, learned Deputy Prosecutor General Sindh has strongly opposed this bail application on the ground that huge quantity of contraband chars weighing 20 kilograms recovered from the car from which the present applicant and co-accused were arrested. Such Mashirnama was prepared in presence of Mashirs who have no inimical terms with the applicant; he further submits that Section 25 of the CNS Act 1997 has excluded the provision of Section 103 CrPC; he further submits that no legal prohibition existed for a police officer to be complainant as well as investigating officer of the case; that the whole property was sent to chemical examiner without any delay for testing purpose, but admittedly there are bulk narcotics properties lying with the chemical examiner and the chemical examiner was not reportedly posted at chemical lab by the Government, therefore, the chemical report is delayed not in this case only but in other cases as well; that case is at initial stage and if at this stage bail is granted to the applicant, she will again repeat the same offence; that the punishment of the offence for which the present applicant has been booked falls within the prohibitory clause of Section 497 CrPC, therefore, she is not entitled for bail. In support of his arguments, he has relied upon the case-law reported in 2015 SCMR 1077 (Socha Gul vs. The State).

 

5.       I have heard the learned counsel for parties at a considerable length and have gone through the case papers so made available before me.

 

6.       As per police papers, it appears that the name of the applicant/ accused transpires in FIR with specific allegation that on the day and time of incident, the applicant and co-accused were arrested by complainant along with his subordinate staff from a car bearing No.AYR-256 and recovered 20 kilograms chars, out of which 10 kilograms chars was under the feet of applicant in car, whereas 10 kilograms chars was recovered from the boot of the vehicle, such Mashirnama was prepared then and there in presence of Mashirs namely Inspector Nisar and EC Ghulam Shabbir, who appear to no inimical terms with applicant. The whole quantity of contraband chars were sent to chemical examiner for testing purpose without any delay. Now it has become trend that narcotic dealers involved women folk and minor boys and girls in their trade of sale of narcotics. Huge quantity of chars recovered from the possession of the applicant, which cannot be foisted by police looking to the cost of the chars, particularly when no ill-will or enmity exists or alleged against them. The use of chars ruins the lives of many people, particularly, young boys and girls and offence is also against the society.

 

7.       As far as the arguments of learned counsel for applicant that the chemical report has not yet been received and still awaited but in my tentative view and at this early stage of the case, delay in submission of report by the chemical examiner is no ground for bail and in case, non-positive report of the chemical examiner, the accused may move fresh bail application before the trial Court on fresh ground if she so advised. So far as the another contention of learned counsel for applicant that applicant is a lady, is entitled for bail. In this connection, it is suffice to say that it is well established law that mere tender age/ woman involved in criminal case, is no ground for extending the concession of bail automatically, if otherwise, are entitled for bail on merit. The offence allegedly committed by the applicant is serious and heinous in nature and also falls within the prohibitory clause of Section 497 CrPC, therefore, at this stage the applicant has failed to prove her case for grant of bail, therefore, this bail application stands dismissed. While passing this order, I am supported with case of Socha Gul vs. The State reported in 2015 SCMR 1077. The case-law cited by learned counsel for applicant has been perused and considered by me but did not find applicable to the facts of present case. Even otherwise, in criminal administration of justice each case has to be decided on its own facts and circumstances, and courts are required to exercise jurisdiction independently as held by Hon’ble Supreme Court of Pakistan in case of State vs. Haji Kabir Khan reported as PLD 2005 SC 364 and Muhammad Faiz @ Bhoora vs. The State and another reported as 2015 SCMR 655

 

8.       Needless to mention here that the observations made hereinabove are tentative in nature would not influence to trial Court while deciding the case of applicant/accused on merits.

 

 

JUDGE

 

 

 

asim/pa