NIZAMUDDIN vs THE STATE
This matter arises from a post-arrest bail application filed by the applicant against the dismissal of his bail plea by the Special Judge for C.N.S., Larkana, in connection with an F.I.R. involving the alleged recovery of 1100 grams of Charas and an unlicensed pistol. The core legal question revolves around whether the applicant is entitled to bail under section 9(c) of the Control of Narcotic Substances Act, 1997, despite the prohibitory bar under section 51 of the said Act, in circumstances where mala fides, previous police enmity, and a police inquiry report suggesting false implication indicate a case of further inquiry. The Sindh High Court held that although the recovery exceeds the threshold attracting the statutory bar against bail, the demonstration of mala fides on the part of the local police officer and findings of a departmental inquiry supporting false implication bring the case within the scope of further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure, 1898. The court laid down the principle that credible material showing mala fides and false implication by police officials can outweigh the statutory bar against bail in narcotics cases at the pre-trial stage.
- Does the statutory bar against bail under the Control of Narcotic Substances Act 1997 apply when there is prima facie evidence of mala fides and false implication by police officials?
- Whether recovery of 1100 grams of Charas attracts the prohibitory clause under Section 51 of the Control of Narcotic Substances Act 1997?
- Can a departmental inquiry report concluding false implication by police provide grounds for further inquiry under Section 497 of the Code of Criminal Procedure 1898 for grant of bail?
- Section 13(d), Pakistan Arms Ordinance 1965
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 324, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
- Section 51, Control of Narcotic Substances Act 1997
- Section 494, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' SYED MAHMOOD ALAM RIZVI, J.---This application for bail is directed against the order, dated 28-8- 2008, passed by the learned Special Judge for C.N.S, Larkana, whereby the application for bail was rejected.
2. ' The facts of the prosecution case are that the applicant is said to have been involved in this case through an F.I.R. Registered on 1-7-2008 and 1100 grams Charas is said to have been recovered from him and 100 grams were sealed separately for chemical examination besides one pistol is said to have been recovered from his possession with three live bullets without license. A separate case under section 13(d) of the Pakistan Arms Ordinance, 1965 was registered and the applicant was booked under section 9(c) of the C.N.S. Act. After the investigation accused has been challaned.
3. ' It is, inter alia, contended by the learned counsel for the applicant that the case is fabricated, false and the contraband and the pistol have been foisted upon the applicant with mala fides and due to enmity with DSP Iqbal Ahmed Qureshi of Taluka Bakrani. Learned Counsel further contended that on 23-6-2008 one Mazda Truck of Zahid Hussain Abro was robbed at Khuhra Band and on his call applicant Nizamuddin and one Mazhar were tracing the accused persons as per their footprints.
4. Subsequently, on 28-6-2008 the applicant and others approached to SPO Bakrani Muhammad Iqbal Qureshi, who detained the applicant and subsequently, he was shown arrested on 1-7-2008 in the instant case by foisting upon him 1100 grams Charas and subsequently, the applicant was also shown arrested in Crime No,30/2008 of P.S. Gerello, under sections 324, 353, P.P.C. However, the applicant later on obtained bail from II-Additional Sessions Judge Larkana in Crime No,30/2008 vide order, dated 9-8-2008. He further stated that the applicant is still in custody since 28-6-2008, therefore, due to his false implications the brother of the applicant Mazhar Ali filed a complaint before D.I.G.P, Larkana, who subsequently referred the case to Rana Sanaullah, D.P.O. Kamber- Shandadkot and as per his order the S.P.O. Mirokhan conducted the enquiry and held that the applicant has been falsely implicated in the above cases. Learned counsel further contended that though the applicant is said to have been involved in 13 cases from 1993 to 2006, but those were registered due to the personal enmity with police and others, and he has not been convicted in any of the thirteen cases, which were registered at Police Stations Bakrani, Taluka Larkana, Rasheed Waggan, Waggan and Nasirabad. He has contended that in the above circumstances the matter requires, further enquiry, and the same would be thrashed out during the trial.
5. ' On the other hand, learned State Counsel has vigorously opposed the bail application and has contended that the applicant is a vagabond character person and involved in Thirteen cases of police encounters, robberies etc, therefore, in view of the above circumstances, he is not entitled for concession of bail coupled with the fact that the punishment in this case is more than seven years and in such circumstances the bar contained in section 51 of the Control of Narcotic Substances Act, 1997 is attracted.
6. ' Heard both the learned counsel and perused the record.
7. Obviously in the case under section 9(c), C.N.S. Act, when the recovery is 1100 grams Charas, the accused is not entitled for bail due to bar of section' 51 of the Control of Narcotic Substances Act, 1997 and this Court has turned down almost all the bail applications under section 9(c) C.N.S. Act, when direct evidence is available against the accused persons, but the learned counsel for the applicant has not argued the case on merits, instead he has demonstrated the mala fides and ulterior motives against S.P.O./TPO Muhammad Iqbal Qureshi hence matter requires, further enquiry, when the honest officer has conducted enquiry and reached the conclusion that the cases registered against the applicant were false. Though the prosecution has not filed application under section 494, Cr.P.C. For withdrawal of the cases before the trial Courts, but suffice to say that prima facie, the case requires further enquiry. In such circumstances, the applicant is entitled for bail. Bail is granted to the applicant subject to furnishing solvent surety in the sum of Rs,50,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.