AWAL KHAN vs THE STATE
This matter arises from a criminal bail application filed by the accused, Awal Khan, seeking post-arrest bail in a narcotics case involving the alleged recovery of 2.5 kilograms of Charas under the Control of Narcotic Substances Act. The core legal questions relate to whether the alleged recovery violated mandatory statutory provisions regarding the empowered officer and whether the quantity of the sample taken brings the case outside the prohibitory clause. The Sindh High Court held that the case did not fall within the prohibitory clause, noted violations of statutory provisions regarding search and recovery, and observed procedural flaws such as the failure to weigh the case property at the spot or associate private mashirs. The court accordingly admitted the applicant to post-arrest bail. The key principle laid down is that non-compliance with mandatory procedural safeguards governing search and seizure under narcotics legislation, along with the determination of the actual quantity attributable to the accused for the purpose of the prohibitory clause, provides sufficient grounds for the grant of bail.
- Does a narcotics case fall within the prohibitory clause when only a fraction of the total recovered substance is separated as a sample?
- Does the violation of statutory provisions regarding search and seizure by an unauthorized officer entitle an accused to post-arrest bail?
- Is the failure to associate private persons as mashirs at the time of recovery a ground for granting bail in narcotics cases?
- Section 20(1), Control of Narcotic Substances Act 1997
- Section 21, Control of Narcotic Substances Act 1997
- Section 26, Control of Narcotic Substances Act 1997
- Section 324, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' DR. QAMARUDDIN BOHRA, J.--- Allowed.
2. Exemption is allowed subject to all just exceptions.
3. The learned counsel for the applicant argued that the applicant/accused is an innocent person and he has falsely been involved in the case. He referred second page of charge-sheet which is at page No,27 of record which shows that the alleged recovery from the applicant/accused is 2.5 Kgs.
Of Charas which were in the shape of small and big pieces and out of small quantity 10 grams were taken out as sample which were found positive that means at the most applicant/ accused can be alleged guilty for 490 grams and not for 2.5 Kgs. As such, his case does not fall under the prohibitory clause. Learned counsel further contended that the applicant/accused was already in the custody and it is alleged that on his pointation the alleged recovery of Charas was made out. It is admitted fact that the A.S.-I. Has effected the alleged, recovery, despite having prior information, which is a violation of section 20(1) of the C.N.S. Act, under which at least Sub-Inspector is empowered to make recovery and section 26 of the said Act also provides penalty and punishment. On this point, the learned counsel for the applicant placed reliance on our own High Court decision reported in 2002 PCr.LJ 1086 (Karachi) as well as another decision of Peshawar High Court reported in 2003 PCr.LJ 1139.
' Whereas on the other hand learned State Counsel opposed the bail application, as according to him the above grounds are only technical in nature.- ' The prosecution case as disclosed in the F.I.R. Dated 23-6-2008 is that the accused was already in custody in Crime No,234 of 2008 under sections 353/324/34, P.P.C. And during interrogation before the police, he conceded to be in possession of Charas and on his pointation the police recovered one hand bag black containing Charas in big and small piece and it was found 2.5 Kgs. Of Charas and such case was registered accordingly.
' The perusal of the F.I.R. As well as the Mashirnama does not show that the case property was weighed at the spot and the sample of recovery from the recovered Charas was sealed at the spot even the place of recovery is not mentioned in the F.I.R. Not only this, but no private person was taken as Mashir despite of the advance information.
As observed above, the 10 grams were taken from the small piece of Charas which, according to the prosecution case, was of 500 grams, therefore, certainly this case does not fall within the prohibitory clause. Moreover, there is also violation of section 21 of the C.N.S. Act and the citation relied on by the learned counsel i.e. Of our own High Court wherein also the case was under sections 9 and 21 of C.N.S. Act, where there is a violation of section 21 of C.N.S. Act and the proceedings were quashed only on this point. Whereas in the citation of Peshawar High Court on the same point the accused was admitted to bail.
In the light of the above, the applicant/accused is admitted to bail on furnishing surety in the sum of Rs,1,00,000 (Rupees one hundred D thousand only) and P.R. In the like amount to the satisfaction of trial Court.
Cited by 2 cases
- SIRAJ MUHAMMAD Versus State 2017 YLRN 99
- SUHINO KHAN vs THE STATE 2009 YLR 1987