IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Misc. Application No. 727
of 2022
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Amjad Ali Sahito
For hearing of bail application
20.12.2023
Mr.
Muhammad Ali Jatoi Special Prosecutor ANF
Mr. Arshad Rauf advocate for respondent
-.-.-.-.-.-.-.-.
NAIMATULLAH PHULPOTO, J.- Through this
Criminal Misc. Application, The State/ANF has called in question order dated 06.07.2022
passed by Special Court-II( CNS), Karachi in Special Case No.64/2022, whereby
bail application moved on behalf of respondent Syed Naseem Hussain was granted
subject to furnishing solvent surety in the sum of Rs.100,000/- and P.R bond in
shape of DSC.
2. Notice was issued to respondent.
3. Mr. Muhammad Ali Jatoi Special
Prosecutor ANF submits that trial Court has granted bail without appreciating
fact that huge quantity of prohibited tablets were recovered from the
possession of the respondent ; that bail granting order is patently illegal and
has resulted into miscarriage of justice. Lastly, it is submitted that bail
granted to the respondent by the trial Court may be cancelled.
4. Mr. Arshad Rauf advocate appearing on
behalf of the respondent submitted that trial Court in para-8 of the bail
granting order observed that this Court in similar circumstances has already
granted bail and order passed by this Court in Criminal Bail Application No.
1989 of 2021 was challenged before Supreme Court in Criminal Petition No. 75-K
of 2022. Vide order dated 16.03.2023, Supreme Court declined to cancel bail to
the accused while observing that accused had not misused concession of bail.
5. We have heard learned counsel for the
parties and perused the relevant record.
6. It appears that learned Special
Court-II (CNS), Karachi in para-8 of the bail granting order observed that bail
has been granted to another accused by this Court in similar circumstances and
yet it is to be determined whether recovered tablets come within the definition
of psychotropic substance as provided in CNS Act 1997. Supreme Court in
Criminal Petition No. 75-K of 2022, in similar circumstances did not cancel
bail of the accused while observing as under:
“2. At the very outset, we
asked from learned Special Prosecutor, ANF that one year has passed since grant
of bail and as to whether respondent has misused concession of bail. The answer
was no. We have also gone through the impugned order. Although certain
observations were made but ultimately the High Court observed that it will be
the Trial Court who will determine during trial whether the alleged medicated
tablets fall within the definition of narcotics, drugs etc., so the High Court
has not given a positive observation regarding non-attraction of the concerned
sections. The report from the Trial Court is also received, according to which
the Special Prosecutor ANF is reluctant to argue the matter before the Trial
Court at the stage of framing of charge. As there is no allegation of misuse of
concession of bail against the respondent so without dilating upon the merits
of the case, we are not inclined to cancel the bail. Petition is, therefore,
dismissed. Needless to observe that the observations made by the High Court in
the impugned order will not be a hurdle before the Trial Court in any manner
and the Trial Court shall decide the case on its own merits, after recording
evidence and going through the relevant law, without being influenced by the
same.
7. In the case reported as Saeed Ullah and
2 others vs. The State and another (2023 SCMR 1397), Apex Court has framed
following seven guidelines for the purpose of cancellation of bail:-
"i)
If the bail granting order is patently illegal, erroneous, factually incorrect
and has resulted into miscarriage of justice.
ii) That
the accused has misused the concession of bail in any manner.
iii) That
accused has tried to hamper prosecution evidence by persuading/pressurizing
prosecution witnesses.
iv) That
there is likelihood of absconsion of the accused beyond the jurisdiction of
court.
v) That
the accused has attempted to interfere with the smooth course of investigation.
vi) That
accused misused his liberty while indulging into similar offence.
vii) That
some fresh facts and material has been collected during the course of
investigation which tends to establish guilt of the accused."
8. On our specific query, Special
Prosecutor ANF admitted that none of the above-said principles have been
violated, which could be made basis to cancel the bail granted by the learned
Trial Court.
9. In the present case neither of the aforementioned grounds have
been specifically taken or argued. The nature of narcotics substance allegedly
recovered is yet to be determined at trial. No case for cancellation of bail is
made out. Consequently, instant Criminal Misc. Application is dismissed with
direction to trial Court to decide the case expeditiously.
JUDGE
JUDGE
Wasim
ps