MUHAMMAD ISHAQUE vs THE STATE/ANF PS HYDERABAD

ORDER

' MUHAMMAD. TASNIM, J.---Applicant is booked in Crime No,3 of 2011 of Police Station, A.N.F.

Hyderabad under section 9(c) of C.N.S. Act, 1997. Initially the applicant applied for bail before learned Special Judge, C.N.S/IInd Additional Sessions Judge, Hyderabad, who vide order dated 23- 5-2011 dismissed the bail application of the applicant. Against the aforesaid order, present bail application has been filed.

2. The prosecution case as setout in the F.I.R. Is that complainant SI Maqsood Ahmed Mahar on 30- 4-2011 while on patrolling received spy information that absconding accused Muhammad Ishaque in Crime No,6 of 1999 of Police Station A.N.F. Hyderabad, his brother Sain Dino and others were available at Railway Station for supply of charas to their customers. On such information, the complainant along with other raiding party reached at the spot and on pointation of informer, found four persons standing in front of main gate of Railway Station Hyderabad. On being asked their names, one person disclosed his name as Ishaque and on his personal search two packets in two coloured foil pack LEAN MUSCLE MEAL were recovered from fold of his shalwar, which was opened and found charas which was sealed in shape of two slabs. The recovered packets were weighed to be one kilogram each, total weight two kilograms. 10 grams from each packet were separated for the purposes of chemical examination and sealed in separate envelop. The other accused namely Sain Dino was searched and from- his possession 1100 grams of charas was recovered and from the said recovered charas, 10 grams charas were separately sealed in envelop for chemical examination. From the third accused person namely Meeral, on his search, 500 grams of charas was recovered from him and from said recovered charas, 10 grams charas were separately sealed in envelop for chemical examination. From the fourth person namely Manoo, 500 grams of charas was recovered, 10 grams charas was separated from the packet for chemical examination and accordingly case under section 9(c) of C.N.S. Act, 1997 was registered.

3. Syed Madad Ali Shah, learned counsel for the applicant submitted that other co-accused who were having 1100 grams and 500 grams charas each, have already been granted bail by the learned trial Court, but present applicant was denied bail and the benefit of rule of consistency was not extended to him, though his case was similarly placed. He further says that recovery from the present applicant is doubtful, as no private witness was associated at the time of arrest andrecovery, though the action by the complainant was taken on prior information. He further submitted that applicant is patient of T.B. And is entitled to bail by following the rule of consistency and so also on medical ground. In support of his contentions, learned counsel for the applicant relied upon the cases of NASIR KHAN AFRIDI v. STATE (2011 YLR 2316), MAQSOOD ZAMAN v. STATE (2011 YLR 2335), BAHAWAL v. STATE (2011 PCr.LJ 1200),MUMTAZ AHMED v. STATE (PLD 2002 SC 590), HAMZA v. STATE (2000 PCr.LJ 1360), MUHAMMAD ASLAM v. STATE (2011 SCMR 820), KHUDA BUX v. STATE (2010 SCMR 1160), SAFIR KHAN v. STATE (2011 MLD 365) and SHAHID HUSSAIN v. STATE (2008 YLR 1560).

4. On the other hand, Mr. Amjad Ali Sahito, Special Prosecutor A.N.F. Has vehemently opposed the grant of bail and has submitted that the case of the applicant was not similarly placed to that of other co-accused and the present applicant was not entitled to the benefit of rule of consistency.

He submitted that from the other co-accused Sain Dino, charas weighing about 1100 grams were recovered whereas from other co-accused Manoo and Meeral, 500 grams of charas from each of them were recovered whereas from the possession of present applicant, two kilograms of charas was recovered. He submitted that the cases of Meeral and Manoo fells under clause (b) of section 9 of C.N.S. Act, 1997 whereas the case of present applicant falls under clause (c) of section 9 of C.N.S. Act, 1997. He further submitted that in view of bar contained in section 51 of C.N.S. Act, the present applicant is not entitled to bail. With regard to associating the private witness at the time of arrest and recovery, learned Special Prosecutor ANF submitted that the provisions of section 103, Cr.P.C. Are not attracted in view of section 25 of C.N.S. Act, 1997. He further submitted that the applicant is drug paddler and was also previously booked in Crime No,6 of 1999 at Police Station A.N.F. Hyderabad and he is not entitled to concession of bail. In support of his contention, learned Special Prosecutor relied upon the cases of THE STATE v. JAVED KHAN (2010 SCM R 1989), MUHAMMAD KHAN v. STATE (2008 SCM R 1616), GHULAM QADIR v. STATE (PLD 2006 SC-61) and THE STATE v. ABDUL GHANI (2010 SCM R 61).

5. I have heard the learned counsel for the parties and have perused the record as also case-laws cited at the bar.

6. It is an admitted position that 1100 grams of charas was recovered from co-accused Sain Dino and 500 grams of charas each from co-accused Manoo and Meeral were recovered. Since cases of Meeral and Manoo fell under clause (b) of section 9 of C.N.S. Act, 1997 and the case of Sain Dino being border line case, the learned trial Judge granted bail to other co-accused, but from the present applicant two kilograms charas was allegedly recovered. In this view of the matter the case of present applicant is not similarly placed, hence rule of consistency cannot be applied to the present case. The arrest of the applicant on the spot along with recovered charas prima facie suggests A that he is involved with the commission of offence, for which the sentence prescribed under section 9(c) is death or imprisonment for life, or imprisonment for a term which may extend to fourteen years, therefore, applicant prima facie is not entitled to bail. It is settled law that at the bail stage deeper appreciation of the record cannot be gone into but it is to be prima facie seen as to whether applicant/accused is connected with the commission of offence or not. Applying the above test to the present case, it will be seen that two kgs of charas was allegedly recovered from the applicant and such offence not only falls under prohibitory clause of section 497, Cr.P.C, but also attracts the bar C contained in section 51(1) of the Act of 1997, specifically made applicable to those offences which, inter alia, provided for punishment of death sentence. It is settled legal position that when the law has 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 provision of law as against general principles governing such cases, when accused approaches the Special Court or the High Court for grant of bail.

7. Provisions of section 51 of C.N.S. Act, 1997 and section 9(c) of the said Act have been examined by the Honourable Supreme Court of Pakistan in the case of THE STATE v. JAVED KHAN reported as 2010 SCM R 1989, wherein their lordships while dealing with the above two provisions of C.N.S. Act have held as under:-- "3. Moreover, according to section 9 of the Act (ibid), whoever contravenes the provisions of sections 6, 7 and 8 shall under clause (a) of section 9, be punished for 2 years, if quantity of such substance is one hundred grams or less, in case it does not exceed one kilogram, under clause

(b) of section 9, upto seven years, and if the quantity exceeds one kilogram, either for death, imprisonment for life or for a term which may extend to fourteen years with fine as provided in clause (c) of section 9 (ibid), which is reproduced herein below:- "9(c). Death or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b): ' Provided that if the quantity exceeds ten kilograms the punishment shall not less than imprisonment for life".

4. Having gone through the above provisions of law, we do not feel persuaded to agree that the case of the petitioner will not fall within prohibitory clause of section 497, Cr. P. C, but it shall be covered by section 9(c), providing for various sentences as reproduced above, 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 Act of 1997, specifically made applicable to those offences which, inter alia, provide for punishment of death sentence. For ease of reference, the said provision of law is reproduced as under:- "51(1). Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death".

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 general principles governing such cases, when accused approaches the Special Court or the High Court for grant of bail, as in the instant case.

5. Looking to the admitted facts of the case of respondent and the above discussed clear legal position, the approach of High Court in releasing the respondent on bail on the above referred ground, seems to be arbitrary, without application of mind and, contrary to settled principles of law, thus unsustainable."

8. With regard to the objection of learned counsel for the petitioner regarding non:compliance of provisions of section 103, Cr.P.C. Is also misconceived, as by virtue of section 25 of C.N.S. Act, 1997, non-citing of a private witness is not fatal to the prosecution case, as section 103, Cr.P.C. Has been specifically excluded from its application, in cases of narcotics. Reference can be made to the case of ZULFIQAR ALI v. STATE (2006 SCM R 800).

9. With regard to the argument of learned counsel for the applicant that he being patient of T.B. Be enlarged on bail. There is no material available on record to suggest that applicant is facing such ailment, which cannot be cured in the prison or there is any danger to his life if such medical treatment is not provided to him outside the prison. In the circumstances, at the bail stage, no definite finding can be recorded on the above aspect of the matter.

10. With regard to the judgments cited by the learned counsel for the applicant in the case of BAHAWAL (supra), the alleged recovery was about 1200 grams of charas. In the case of MAQSOOD ZAMAN (supra), the alleged recovery of charas was 1050 grams. In the case of NASIR KHAN AFRIDI (supra), the alleged recovery of charas was about 1150 grams and in all the three cases the recovered substance was marginally exceeded 1000 grams and it was yet to be decided at the trial as to whether clause (b) of section 9 of C.N.S. Act will be attributed or clause (c) of section 9 of the said Act will be attracted. In the circumstances, in all three referred cases, bail was granted to the applicant/accused being border line case, but in the present case, admittedly the alleged recovered substance is two kilograms will definitely fall under clause (c) of section 9 of C.N.S. Act, 1997. The other judgments cited by the learned counsel for the applicant are distinguishable on facts and do not advance the case of the applicant.

11. For the foregoing reasons, the applicant has failed to make out a case for grant of bail.

Accordingly this bail application is dismissed. However, from the perusal of F.I.R. And the record, it appears that for the last six months the applicant is in custody. In the circumstances, learned trial Court is directed to proceed with the case expeditiously and preferably dispose of this case within a period of three months from the receipt of this order under intimation to this Court. The learned trial Court is further directed to submit monthly progress report to this Court through Additional Registrar.