ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Cr. Bail Application No. 933 of 2013
Date Order with signature of Judge
1. For orders on M.A. No. 4800/2013.
2. For hearing.
Heard on : 27th August, 2013.
For Applicant : Mr. Shoukat Hayat, Advocate.
For State : Mr. Muhammad Irfan, Special Prosecutor, ANF.
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SYED MUHAMMAD FAROOQ SHAH, J.:- Applicant Muhammad Faisal presently confined in Central Prison, Karachi has sought bail in Crime No. 21/2013, registered at P.S. ANF, Clifton, Karachi, for an offence punishable under section 6/9 (C), Control of Narcotics Substances Act, 1997.
2. Precise facts forming the background of the instant case are that on 18.4.2013 on receiving the spy information that one person namely Muhammad Faisal, the present applicant, from his flat situated at Qaiser Sharif Building, Gali No. 7, Moosa Lane Baghdadi would deliver prohibited drugs for export to his worker, a raiding party headed by Inspector Khalid Rasheed, ASI Muhammad Ali, HC Nasir Khan, PC Majir Balouch, LPC Samina Naz and other ANF officials alongwith the spy informer left the police station vide Roznamcha Entry No. 17 at 0600 hours in official vehicle and reached at the pointed place at 0630 hours and started secret surveillance and at about 0700 hours one person who was having a brown carton came at Gali No. 7 and keep the said carton in a car bearing registration No. AVH-500, which was parked in front of main gate of the building. On pointation of spy, the said person was apprehended, who on inquiry disclosed his name as Muhammad Faisal. The peoples available at the spot were asked to act as witnesses but they refused due to fear of narcotic smugglers, therefore, members of raiding party PC Majid Balouch and PC Mazharuddin were nominated as Mashirs and the said brown carton was taken into custody which was checked and found 52 polythene packets in which diazepam tablets were found. On weighing each polythene packet found to be of 500 grams, thus total 26 Kgs of diazepam tablets were recovered from the said carton. The recovered contraband narcotics were sealed on the spot. On search of the said car no incriminating articles were recovered and on search of the flat of the accused nothing objectionable was recovered. The accused was accordingly arrested and such memo of arrest and recovery was prepared on the spot in presence of said witnesses. The arrested accused brought at police station where FIR No. 21 of 2012 was lodged and challan was submitted against him. The bail application moved earlier by the applicant before the trial court was heard and dismissed.
3. Learned counsel for the applicant argued that alleged recovered material is medicine easily available at almost all medical stores of Pakistan and the same do not fall within the definition of “drug” as defined in section 3(g) of Drugs Act, 1976, more-so the said medicine has already been registered with the Ministry of Health, Government of Pakistan and has not been declared as prohibited drug either under Drug Act or under CNS Act, 1997. Learned counsel for applicant next contended that the trial judge was not justified to reject the bail merely by showing recovery of huge quantity but bar on bail, under section 51 CNS Act, 1997, which provision per learned counsel is not attracted in the present case. Learned counsel submitted that neither the applicant was owner of alleged house situated in Qaisar Sharif Building, Street 7, Mohalla Moosa Lane nor he has been arrested from alleged place. Further-more, the applicant was neither owner, nor found in possession of the alleged vehicle, therefore, recovery made from the conveyance is not inspiring confidence. It is further submitted by the learned counsel that applicant has falsely been implicated in this case he was arrested by the Kharadar Police and then the applicant was taken to ANF Clifton, Karachi and subsequently involved. Learned counsel contended that earlier the applicant was involved in similar charges in FIR 74 & 75 of 2010, lodged at PS ANF in which he was granted bail by the court. In this context, learned counsel annexed copy of order passed in bail application 290 & 390 of 2011, respectively. To support his contentions, learned counsel for the applicant has relied upon the cases of JAMAL-UD-DIN ALIAS ZUBAIR KHAN V/S THE STATE (2012 SCMR 573), GHULAM MURTAZA & ANOTHER V/S THE STATE (PLD 2009 Lahore 362), THE STATE/ANTI NARCOTICS THROUGH DIRECTOR GENERAL V/S RAFIQ AHMED CHANNA (2010 SCMR 580), MUHAMMAD KHAN & 2 OTHERS V/S THE STATE (2013 P.Cr.L.J. 924), AYAZ V/S THE STATE (2011 P.Cr.L.J. 177), ALI AKBAR V/S THE STATE (2010 YLR 127), MAQSOOD ZAMAN V/S THE STATE (SBLR 2012 SINDH 1006) and AMEER ZEB V/S THE STATE (PLD 2012 SC 380).
4. Conversely, learned Prosecutor opposed the concession of bail to the applicant on the ground that the evidence of police officials is reliable. He also submitted that the provision of section 103 Cr.P.C is not applicable in view of section 25 of the CNS Act. Learned Prosecutor has emphatically submitted that it is settled that at the bail stage the appreciation of facts in depth cannot be considered and the Court at the bail stage has to look into the material available on the record, to determine the involvement of the accused in the commission of offence. To support his contentions he has placed reliance on the cases reported as ZAFAR V/S THE STATE (2008 SCMR 1254), GHULAM MURTAZA & ANOTHER V/S THE STATE (PLD 2009 Lahore 362) and THE STATE V/S JAVED KHAN (2010 SCMR 1989).
5. Arguments advanced from both the sides are considered and record perused.
6. On tentative assessment of record, it appears that the alleged recovery of “Diazepam” medicine was affected from a vehicle on prior information but neither raid was conducted by the duly authorized officer by the Federal Government or the Provincial Government nor the complainant associated any private person for making recovery. The medicine (Diazepam Tablets) were manufactured under the license in the name and style of Roche valium 10 which is admittedly available in medical stores. Prosecution in support of “prohibited drug” or “recovered medicine” did not produce any document to show that mentioned drug is prohibited. The raiding party was having advance information but they did not take private persons or inhabitants of the locality to conduct the raid, arrest and recovery. Drug as defined in Section 3(g) of the Drugs Act, 1976 includes any substance or mixture of substances i.e. manufactured, sold, stored, offered for sale or represented for internal or external use in the treatment, mitigation, prevention or diagnosis of a disease is punishable under the provision of the Drugs Act, 1976. It is an admitted position that recovered drug valium 10 (Diazepam) of 10 mg, is easily available on each drug store of the country and has not been declared as prohibited drugs under the Drugs Act, 1976 or CNS Act 1997.
7. During his worthy arguments, Mr. Shaukat Hayat has placed before this court three (3) boxes of Tablets Valium 10 and stated that the same are manufactured by Roche Pharmaceutical, Karachi, Pakistan under license from F. Hoffman-La Roche Ltd. Basel Switzerland. The schedule Z(a) of the Section-2, CNS Act, 1997 shows psychotropic substances with specified chemical formula and the diazepam has also been shown in Schedule IV of the Convention of Psychotropic Substance, 1971 of the UNO. Further-more, Rule 2(XXXVII) of substances shown in the schedule IV, includes “Toxic Chemical Inhalant” with formula C16H13ClN2O and Mol. Mass 284.7 g/mol. Learned counsel has rightly submitted that the toxic chemical has been used by the manufacture of drug M/s. Roche Pharmaceutical as one of the active component i.e. 10mg in a tablet alongwith other compounds to manufacture the drugs for use in different diseases and such drug is registered by the Government of Pakistan being not prohibited medicine and did not fall under the category prescribed under section 6/9(c) CNS Act, 1997. The citations relied upon by learned counsel for the applicant are attracted under the facts and circumstances of present case.
8. It is well settled principle of law that at bail stage deeper appreciation of the record cannot be gone into but only tentative assessment is to be made just to find out as to whether applicant/accused is connected with the commission of crime or not.
9. Whatever mentioned above in my view the case requires further enquiry in terms of section 497(2) Cr.P.C. Accordingly, the applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs. 2,50,000/- (Rupees two lac & fifty thousand only) and P.R. Bond in the like amount to the satisfaction of the Trial Court.
10. It needs not to iterate that the observations made hereinabove are tentative in nature and shall not effect the merits of the case during trial. However, if the applicant misuses the concession of bail, the learned Trial Court may proceed against him in accordance with law.
Aamir/PS J U D G E