IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                              Cr.B.A.No.S- 1000 of 2014

Sarfaraz S/o Abdul Khalique--------------------------------------- Applicant

V/s

The State---------------------------------------------------------------Respondent

Date of Hearing:                   06.01.2015

Date of Order;                       09.01.2015

Mr. Abdul Majeed Magsi Advocate for applicant

Mr. Shahid Ahmed Shaikh, A.P.G. for the State.

                                    =

MUHAMMAD JUNAID GHAFFAR, J:-             Through instant bail application, the applicant / accused seeks post arrest bail in Crime No.86/2013 registered at P.S. Seri, Hyderabad, U/s 9(c) of the Control of Narcotic Substance Act, 1997 (“CNS Act, 1997”) as the trial Court has dismissed the bail application vide order dated 11.08.2014. It has been alleged by the prosecution that applicant / accused along with another absconding accused was apprehended by the Police Party on 20.6.2014 around 2000 Hours when they were riding on a Motorcycle and were carrying a white Color bag which on search contained 9 packets of Charas (6 packets of “Sher-e-Sindh 2014” in yellow color and 3 packets of “JUMBO” in red color) total weighing 10 Kilograms. The Hero Motorcycle on which they were riding was without any number plate, whereafter, samples were drawn from 1 packet of Charas contained in “Sher-e-Sindh 2014” and was sealed for chemical analysis. The remaining quantity of recovered Charas along with Motorcycle were taken into custody after preparing the Mushirnama.

2.         I have heard learned counsel for the applicant and learned A.P.G. and my observations are as follows:-

(i)        The learned Counsel for the applicant has forcefully argued that the prosecution has sent samples of Charas from only one packet marked with “Sher-e-Sindh 2014”, whereas, according to the FIR 6 packets of Charas of “Sher-e-Sindh 201”4 and 3 packets of “JUMBO” total weighing 10 Kilograms, were allegedly recovered from the applicant / accused, therefore, the case against the applicant would be covered under section 9(b) of the CNS Act, 1997, and not under 9(c) of the Act ibid, which provides for a maximum punishment of 7 years R.I and does not fall within the prohibitory clause of section 497(1) Cr.P.C., as the maximum quantity of charas would worked out to be 1111 grams approximately. Learned Counsel by relying on the judgment in the case of Muhammad Hashim V/s The State (PLD 2004 SC 865) and the case of Muhammad Nawaz V/s The State (2007 MLD 1846) contended that the applicant is entitled for grant of bail in such circumstances. However, such contention of the learned Counsel does not appear to be correct, as the case of Muhammad Hashim Supra had been decided by the Hon’ble Supreme Court in a Criminal Appeal against final judgment/conviction and had the occasion to examine the entire evidence before coming to such conclusion. Whereas, the Hon’ble Supreme Court recently in the case of Nadeem Ashraf V/s The State (2013 SCMR 1538) has repelled such contention while hearing a bail application/petition in a Narcotics case under the CNS Act, 1997. In that case the Counsel for the petitioner had placed reliance on the case of Ameer Zeb V/s State (PLD 2012 SC 380), wherein the Hon’ble Supreme Court has laid down certain principles with regard to sampling of Narcotics substances and has observed that it is necessary that a separate sample is to be drawn from every separate cake, slab or other form of packing and if that is not done, then only such quantity of Narcotic substance is to be considered against the accused person from which a sample was taken and tested with a positive result. The Hon’ble Supreme Court in the case of Nadeem Ashraf Supra (consisting of a bench wherein Hon’ble Mr. Justice Asif Saeed Khan Khosa, author of the judgment in the case of Ameer Zeb Supra was also a member) has repelled such contention and has observed that judgment to which reference has been made by the learned Counsel for the petitioner was in a criminal appeal, when the entire evidence had been led and the Court after considering the said evidence came to such conclusion. After referring to Para 8 of the said judgment the Hon’ble Supreme Court had dismissed the bail application of the petitioner. It would be advantageous to refer to the relevant findings of the Hon’ble Supreme Court in this regard which reads as under;

“Admittedly the trial has yet to commence and it would be rather presumptuous on the part of the petitioner to infer that the prosecution would lead evidence only to the extent of the weight to which reference has been made by petitioner’s learned Counsel. It is always open for the parties and in this case for the prosecution to lead further evidence and to request the Court that it be allowed to send the entire narcotics allegedly recovered from the petitioner for chemical analysis.”

(ii)    It may also be further observed that in the instant matter the Charas recovered from the applicant / accused is packed with some specific names i.e. “Sher-e-Sindh 2014” and “JUMBO” and appears to be intended for commercial sale in the same packing. In such a situation, at this stage of the case, it is immaterial if samples are not drawn from all the packets allegedly recovered from the possession of the applicant accused. Further the learned Counsel for the applicant / accused has not challenged the recovery of Charas which is admittedly a Narcotic substance; whereas the question of sampling from each packet only arises in a case wherein it has been challenged that the recovered commodity is not a Narcotic substance.

(iii)    The learned APG has rightly pointed out that the applicant / accused has not attributed animosity or malafides on the part of the complainant, whereas a huge quantity of Charas has been recovered from the possession of the applicant / accused in presence of witnesses, who, though are police officials, but presence of such witnesses is not fatal to the case of the prosecution and such huge quantity cannot be foisted upon the applicant / accused along with a Motorcycle allegedly being used by the applicant / accused and the absconding accused. Further, section 103 Cr.P.C. is not applicable in cases under CNS Act, 1997, which is a Special law and section 25 of the Act provides for such exception.

(iv)   It is also pertinent to note that the case of the applicant / accused cannot be equated or brought to a status, whereby it could be declared or termed as a bail-able offence, merely for the fact that punishment as per sentencing policy decided by a Full Bench of the Lahore High Court in the case of Ghulam Murtaza V/s The State (PLD 2009 Lahore 362) and duly approved in the case of Ameer Zeb (Supra) is less than death, life imprisonment or 14 years, as the case may be. The Court in such a situation has to apply its mind independently with prudence in exercising the discretion vested in the Court for grant of bail, after ascertainment of entire facts and mitigating circumstances of each case. Reference in this regard may be placed on the case of Javed Khan V/s The State (Criminal Bail Application No. 519/2010) in which a learned Single Judge of this Court had granted bail to the applicant / accused by following the sentencing policy in the case of Ghulam Murtaza Supra, by holding that the offence, if any, will not fall within the prohibitory clause of section 497 Cr.P.C, therefore, the applicant is entitled for the concession of bail. This bail granting order was assailed before the Hon’ble Supreme Court by the State which is reported as The State V/s Javed Khan (2010 SCMR 1989), wherein, the Hon’ble Supreme Court had cancelled the bail granted by the High Court of Sindh in a case of recovery of 5-1/2 kilograms of Narcotic substance, by observing that we do not feel persuaded to agree that the case of the petitioner will not fall within the prohibitory clause of section 497 Cr.P.C, but it shall be covered by Section 9(c), providing for various sentences, which not only squarely fall within prohibitory clause of section 497 Cr.P.C., but also attract the bar contained in Section 51(1) of the CNS Act, 1997, specifically made applicable to those offences which, inter alia, provide for punishment of death sentence. It has been further observed by the Hon’ble Supreme Court that when the law makers have provided some special provision in the statute to bar the jurisdiction of special Court established under the said enactment, due weight is to be given to such special provision of law as against the general principles governing such cases, when accused approaches the Special Court or the High Court for grant of bail.  On this premise the bail granted to the applicant by the High Court of Sindh had been cancelled / recalled by the Hon’ble Supreme Court.

(v)      Similarly in the case of Moinuddin V/s The State (Criminal Bail Application No. 1101 of 2014) a learned Single Judge of this Court following the dictum laid down by the Hon’ble Supreme Court in the case of Nadeem Ashraf Supra, has dismissed the bail application of the accused / applicant by holding that it cannot be said that the case of the applicant does not fall within the prohibitory clause of section 497 Cr.P.C. The applicant / accused had assailed the said order before the Hon’ble Supreme Court through Criminal Petition No 96-K of 2014 and the Hon’ble Supreme Court vide order dated 09.10.2014 has been pleased to dismiss the bail application by holding that the learned High Court has rightly distinguished the aforesaid case [Ameer Zeb, Supra] with the case in hand which is a bail matter and is not to be regulated by the principles laid down in the aforesaid judgment of this Court, which are given after regular trial.

3.         In view of hereinabove facts and circumstances of the instant matter, I am of the view that the applicant / accused has failed to make out a case of grant of bail at this stage of the case, consequently instant bail application is hereby dismissed. However the trial Court is directed to expedite the trial in the interest of justice. It may also be noted that the above observations are tentative in nature, and shall not prejudice the case of either party at the stage of trial.  

4.         The above bail order has been passed in compliance with the directions of the Honorable Supreme Court as contained in the case of Muhammad Shakeel V/s The State (PLD 2014 SC 458), whereby I have not reproduced the entire contents of the FIR as well as the details of the arguments so raised by the learned Counsel for the applicant as well as learned A.P.G.                        

Dated 09.01.2015

                                                                                                            JUDGE