1. PIR BUX 2. MUHAMMAD AKRAM vs THE STATE
This criminal bail application arises from the arrest of the applicants, Pir Bux and Muhammad Akram, who were allegedly found in possession of 1015 grams of Charas each while travelling in a passenger bus, registered under Crime No. 06 of 2007 at Police Station Dhabeji, District Thatta, pursuant to an FIR lodged under Section 9(c) of the Control of Narcotic Substances Act, 1997. The core legal question concerns whether the failure to associate private witnesses during the search and recovery, coupled with discrepancies in the police statements, warrants the grant of post-arrest bail. The Sindh High Court held that notwithstanding the exclusion of Section 103 of the Code of Criminal Procedure, 1898 by virtue of Section 25 of the Control of Narcotic Substances Act, 1997, official witnesses conducting searches and arrests are reasonably required to associate private persons when available to lend credence and public confidence to their actions. The Court concluded that the circumstances of the case made out a case for further inquiry and accordingly admitted the applicants to post-arrest bail.
- Whether the non-association of private witnesses during a search and recovery in a narcotics case creates a case for further inquiry?
- Does Section 25 of the Control of Narcotic Substances Act, 1997 entirely absolve police officials from associating private persons in searches where such persons are readily available?
- When does an inconsistency in statements recorded under Section 161 of the Code of Criminal Procedure, 1898 justify the grant of bail?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 25, Control of Narcotic Substances Act 1997
- Section 103, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
ORDER
1. ' MUHAMMAD MOOSA K. LEGHARI, J.---The applicants were arrested by the police on the accusation that each of them was found in possession of 1015 grams of Charas while they were travelling in a passenger bus as per the report lodged by S.I.P. Zafar Ali on behalf of the State under section 9(c), Control of Narcotices Substances Act vide Crime No, 06/07 loaded at P.S. Dhabeji, District Thatta on 31.1.2007.
2. ' Inter alia, the bail is pressed on the ground that the applicant have been falsely implicated, that inspite of the fact that the applicants were arrested while travelling in a bus in which a number of private persons were available but none of them was associated for the recovery, that a doubt was created after reading 161, Cr.P.C. Statement of P.W. Ghulam Mustafa.
3. ' Learned A.A.G. Has not been able, to recouncile the apparent mistake in the statement of P.W.
4. Ghulam Mustafa and state that the case of the applicants calls for further enquiry.
5. ' The contentions raised have been considered and the material placed on the record has been perused.
6. It must be stated that notwithstanding the bar contained under section 25 of the C.N.S. Act, 1997 thereby excluding the applicability of section 103, Cr.P.C. To narcotic cases, the official smoking searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted so as to lend credence to such actions and to restore public confidence. The aspect of the matter must not be lost sight of indiscriminately and without exception. Besides that, without making any observation on the language of statement, of P.W. Ghulam Mustafa recorded under section 161, Cr.P.C. As the same may cause prejudice to the case of the prosecution it can be said with certainly that a case for further enquiry has been made out.
7. ' In the circumstances, the applicants are granted bail in the sum of Rs, 1,00,000/- (Rupees One Lac only) each and P.R. Bond in the like amount to the satisfaction of the Trial Court.