MUHAMMAD SHAHID vs THE STATE
This is a post-arrest bail application filed by the accused Muhammad Shahid, who was implicated in case F.I.R. No. 2 of 2008 registered under section 6/9(b) of the Control of Narcotic Substances Act, 1997, concerning the alleged recovery of 470 grams of heroin from his body cavities. The core legal question before the Sindh High Court was whether the accused was entitled to post-arrest bail considering the statutory punishment for the offence, the non-application of the prohibitory clause, and the delay in the conclusion of the trial. The court held that since the maximum punishment for the offence is seven years, which falls outside the prohibitory clause of section 51 of the Control of Narcotic Substances Act, 1997, and given that the accused had been incarcerated for seven to eight months without a charge being framed or the trial commencing in the near future, a fit case for bail was made out. The court laid down the principle that an accused person cannot be detained indefinitely in jail as a punitive measure when the offence does not fall within the prohibitory clause and the trial is unlikely to conclude promptly, thereby granting bail subject to the furnishing of surety.
- Whether an offence carrying a maximum punishment of seven years imprisonment falls within the prohibitory clause of section 51 of the Control of Narcotic Substances Act, 1997?
- Can an accused be granted post-arrest bail when no charge has been framed and the trial is not likely to conclude in the near future?
- Does the prolonged incarceration of an accused awaiting trial justify the grant of bail in cases outside the prohibitory clause?
- Section 6/9(b), Control of Narcotic Substances Act, 1997
- Section 51, Control of Narcotic Substances Act, 1997
ORDER
1. ' BIN YAMEEN, J.-This order will dispose of bail application made on behalf of the applicant/ accused, namely Muhammad Shahid son of Muhammad Rafiq, who is detained in case F.I.R. No, 2 of 2008 registered under section 6/9(b) C.N.S. Act at Police Station ANF-II, Karachi.
2. 'Brief facts of the case are that on 7-8-2008 applicant/accused was arrested at Jinnah International Departure Lounge under suspicious condition that he has concealed the heroin filled capsules in his body cavities. That the persons who were present there were asked to act as mashirs but they declined to do so, therefore, complainant arrested the accused in presence of mashirs P.C. Siraj and P.C. Muhammad Amin and others. Thereafter, applicant/accused was brought at P.S. Where this case was registered against him. Thereafter on 10-1-2008 accused was admitted in Jinnah Hospital where capsules containing 470 grams heroin powder were recovered from his body. Recovered heroin was taken into custody and samples were separated from the same for chemical Examiner. Since his arrest, the applicant/accused is in custody.
3. ' Earlier his bail application made before the Special Court-I (C.N.S.) Karachi was rejected on 21-4- 2008. Hence this bajl application.
4. ' Heard advocate for applicant/ accused, learned Special Prosecutor, ANF and perused case papers.
5. ' Learned counsel for the applicant/accused submitted that he is innocent and has falsely been involved in this case. He further submitted that perusal of the contents of the F.I.R. As well as mashirnama of arrest shows that at the time of arrest of applicant/accused, no recovery of heroin powder was effected from his possession, on the contrary it is alleged that recovery was made from the applicant/ accused on 10-1-2008 when he was admitted in the hospital. That during the intervening period of arrest of the applicant/accused and recovery, no confessional statement of the applicant/ accused was recorded. That punishment provided for the alleged offence is seven years and fine, thus the case of the applicant/accused does not fall within the purview of prohibitory clause of section 51 of C.N.S. Act, 1997. That the applicant is confined in jail for the last about 7/8 months and is no more required by the prosecution for further investigation. That till date no charge has been framed against the applicant/accused, therefore, there is no possibility of the conclusion of his trial in the near future. That applicant/accused cannot be kept in jail custody for an indefinite period. He, therefore, requests for grant of this application and release of the applicant/accused on bail during the pendency of the case.
6. ' Learned Special Prosecutor, ANF has opposed this bail application and submitted that the recovery was effected from the person of the accused as he has concealed the heroin filled capsules in his body cavities, in ingenious manner. He further submitted that the alleged offence is not an offence against any particular individual but is a menace against the society. That there is ample explanation available on the record about the delay of recovery, therefore, the same is not fatal to the case of the prosecution. That a prima facie case has been made out to show that accused has committed the alleged offence as all the witnesses examined by the prosecution have supported the case against the applicant/accused. That no case for grant of bail to the applicant/accused at this stage, is made out, therefore, the application for bail under consideration may be rejected.
7. ' I have considered the contentions raised at bar and have also gone through the material available on the record.
8. The applicant/accused is behind the bar for the last about 7/8 months but his case is still at preliminary stage as no charge has been framed against him.
9. ' Thus, it cannot be presumed that case of the applicant/accused will be concluded in the near future. Furthermore, the punishment provided for the alleged offence is seven years and fine, thus in my opinion, the same does not fall within the prohibitory clause of section 51 of C.N.S. Act, 1997.
10. ' In view of the above discussion, I am of the opinion that a case for grant of bail to the applicant/accused has been made out at this stage. I, therefore allow this bail application and order that applicant/accused be released on bail on his furnishing surety in the sum of Rs, 1,00,000 with P.R. Bond of like amount to the satisfaction of the trial Court.
11. ' Bail application stands disposed of.
Cited by 3 cases
- ABDUL NAEEM vs THE STATE 2012 MLD 1713
- ASGHAR vs THE STATE 2011 MLD 1890
- QAMAR HUSSAIN vs THE STATE 2011 YLR 2327