ORDER SHEET
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ORDER WITH SIGNATURE OF JUDGE
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For hearing.
4.12.2007.
Mr. Muhammad Akbar Awan for applicant.
Miss. Shahida Jatoi State counsel.
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Applicant Uzair Ali S/O Faiz Muhammad has applied for post arrest bail in Crime No. 163/2006 under section 6 / 9-C Control of Narcotics Substances Act, registered at P.S. Maripur.
It is alleged in First Information Report that on the fateful day PI Sajjad Hyder of Lyari Task Police while patrolling in the area received spy information about the presence of the applicant reached Edhi Grave Yard, Police party encircled the applicant and others. They opened fire as a result of an encounter applicant was arrested and from his possession two rods of charas weighing 2 Kg was secured which was taken into possession in presence of the mashirs. Consequent thereupon the applicant was arrested in the commission of the crime.
Mr. Akbar Awan learned counsel for applicant has contended that the applicant has been involved by the police in the series of cases for commission of the crime. The applicant as envisaged Section 103 Cr.P.C was not searched in presence of the reliable witnesses therefore the quantity of the narcotics allegedly secured has been foisted upon him with ulterior motives. It is next urged that the applicant has been bailed out in various cases registered against him therefore delay per se in transmission of the charas to the chemical examiner itself is fatal to the prosecution case, the applicant is entitled to the concession of bail.
Learned State counsel has opposed the bail application of the applicant on the ground that the applicant is a habitual offender and the implication of Section 103 Cr.P.C is excluded by Section 25 of the Act 1997, the ground of delay is not available to the applicant in the cases pertaining to the narcotics exceeding 1 Kg.
I have considered the arguments advance at bar. The applicant has past history of being involved in number of cases. He is involved in 15 other cases and has been admitted on bail in some of the cases. In any view of the matter, the delay in conclusion of the trial per se shall not be a ground for grant of bail to the applicant under section 9-C of the Act, offence involved inter-alia carries death sentence as the quantity of the narcotics of charas allegedly recovered is more than 1 Kg. In the case of THE STATE THROUGH DEPUTY DIRECTOR, ANTI NARCOTICS FORCE, KARACHI VS. MOBIN KHAN (2000 SCMR 299), it has been laid down that the perusal of the above quoted subsection (1) of Section 51 of the Act indicates that it excludes the application of Section 496 and 497 of the Cr.P.C by incorporating a non obstante clause by providing that notwithstanding anything contained in Sections 496 and 497 of the Criminal Procedure Code, bail shall not be granted to an accused person charged with an offence under this Act or under nay other law relating to narcotic were the offence is punishable with death, whereas the above quoted subsection (2) of Section 51 of the Act lays down that in the case of other offences punishable under the Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount.
In any view of the matter delay in transferring the narcotics to the chemical examiner and submission of challan after 9 months would itself not be fatal to the prosecution case. In any view of the matter the bail application is not sustainable in law and is hereby dismissed. The trial Court is directed to expedite and dispose of the case within 6 months from the date of receipt of this order.
J U D G E