MUHAMMAD NAWAZ Versus State

ORDER

MUHAMMAD ATHER SAEED, J .---This criminal bail application has been filed against the order, dated 8th May, 20.07 passed by the Incharge Judge, Special Court-II (CNS), Karachi in News Special No. 2008 of 2007 whereby the learned Incharge Judge rejected the bail application filed by the applicant relating to F.I.R. No.438 of 2006 of Police Station Sohrab Goth, Karachi under sections 6/9 of Control of Narcotic Substances Act, 1997.

2. Brief facts of the case, as narrated in the F.I.R. registered at Police Station Sohrab Both on 23-9-2006 at 2120 hours, are that a police party while on mobile patrolling, during checking at the Link Road of Gulshan-e-Maymar at about 2020 hours spotted a suspicious person was seen coming from the Subzi Mandi side and when the police signaled him to stop he ignored the signal and proceeded on his motor bike and therefore the police caught hold of him and on search in presence of witnesses (1) Abdul Aziz son of Mamnoon, (2) A.S.-I. Raja Muhammad Aslam, and (3) PC .Faisal Mehmood, recovered 10 Kgs Charas from him in the shape of 10 packets packed in plastic bags, each containing one Kg. Charas in a grey coloured bag placed on tank of black coloured motorcycle having Registration No.KB-4891, SR 70, and, therefore, the police arrested him on the spot. Out of the recovered narcotics one Kg. was separated for chemical examination whereas tune Kgs. of narcotics was seized separately and the motorcycle was also taken into custody and a case under sections 6/9 of the Control of Narcotic. Substances Act was registered against the applicant.

3. The applicant's bail application filed before the Special Judge was rejected and, hence, this bail application.

4. We have heard Mr. Shaukat Hayat, Advocate for the applicant and Mr. Habib Ahmed, A.A.-G., for the State.

5. The main contention of tree learned counsel for the applicant is that the applicant is innocent and has falsely been implicated in the case at the instance of his-in-laws since he being a Punjabi had married a Baloch lady against the wishes of her family and they had been pressurizing the accused/applicant to devoree his wife and, at his refusal to do so, they had falsely involved him in a fictitious case with the connivance of the local police. The learned counsel further submitted that the applicant is neither the owner of the motorcycle mentioned in the F.I.R. nor any steps have been taken by the police to inquire from the Registration authorities about the ownership of the same and to connect it with the applicant., He further pointed out that in one of the statements of the witnesses under section 161, Criminal Procedure Code, the registration number of the motorcycle has been mentioned as KBL 4891 wherein in another statement it is mentioned as KBL 4841. The learned counsel then went on to argue that the case was registered by the operation police and the investigation was also conducted by the police officer on the operations side and that the investigation branch of the police station .was not involved and this is against the provisions of Article 18 of the Police Order, 2002 as it is mandatory for the police that after registration of the case, it should be investigated by the investigation staff in the District under the head of the Police Investigation Department. The next argument advanced by the learned counsel for the applicant was that although the alleged recovery was of 10 Kgs of Charas, only one Kg. was .separated and sent for chemical examination while no samples out of the remaining nine Kgs. Charas, allegedly seized from the applicant, were sent to the Chemical Examiner for test and, therefore, the presumption is that the other nine packets did not contain Charas as no samples from those bags were admittedly sent for chemical test.

6. The learned counsel for the applicant, in support of his various arguments, relied on the following case-law:--

(i) Muhammad Hashim v. The State (PLD 2004 SC 856)

(ii) Waris Khan v. The State (2006 SCMR 1051)

(iii) State v. Bashir and others (PLD 1997 SC 408).

(iv) Abdul Lateef v. The State 2006 MLD 639

(v) Muhammad Farooq Khan v. The State (2007 PCr.LJ 89),'and

(vi) Zahid Mushtaq v. The State (1998 PCr.LJ 1516).

(vii) The learned counsel for the applicant also relied on an un' reported leave-granting Order of the Hon'ble Supreme Court in Criminal Petition No.2-K of 2007, dated 1st February, 2007, in which leave to appeal was granted to examine whether the sentence awarded to the petitioner was harsh and excessive in view of the withdrawal of one sample only for chemical examination.

7. The learned counsel for the applicant. therefore submitted that the case of the applicant needed further inquiry and even otherwise, since only one Kg. Charas allegedly recovered from the applicant, was sent for chemical examination, and it has not been proved whether the other nine bags contained Charas, therefore, the case did not fall within the ambit of section 9(c) of the C.N.S. Act, 1997 but, instead, fell under section 9(b) of the said Act, whereunder the maximum punishment provided is seven years' R.I. and, therefore, the case did not fall within the prohibitory clause to section 497, Cr.P.C. and the applicant was entitled to be released on bail.

8. Mr. Habib Ahmed; ,learned A.A,-G. representing the State, opposed the grant of bail to the applicant and submitted that it is not necessary to send samples from each and every bag for chemical examination and submitted that even if one Kg. sample is sent for chemical examination it is enough to prove that the substance recovered from the applicant was Charas and since 10 Kgs. of Charas was allegedly recovered from the applicant, therefore, his case falls within the ambit of section 9(c) of the said Act and the maximum punishment which can be inflicted on him is 14 years and, therefore, the case of the applicant falls within the prohibitory clause to section 497, Cr.P.C. In support of his contention, the learned A.A.-G. relied on the Judgment of the Hon'ble Supreme Court in the case of Ali Muhammad v. The State (PLD 2003 SCMR 54). He also relied upon an unreported Judgment of this Court, dated 5th December, 2006, in Criminal Appeal No. 181 of 2006, wherein the alleged recovery was of 30Kgs. Charas and out of which only 10 grams, separated from one pack, was sent for chemical examination. A Division Bench of this Court had held that the appellant had rightly been convicted by the trial Judge and dismissed the appellant's appeal. The learned A. A.-G. further went on to submit that although the judgment of the apex Court in the case of Muhammad Hashim, quoted supra, was later in time and was also passed by a Bench of the same strength as the Bench which passed the judgment in the case of Muhammad Ali quoted supra, but the judgment in the case of Ali Muhammad (Supra) was not referred before the Hon'ble Supreme Court while deciding the case of Muhammad Hashim (Supra) and, therefore, it can be said that the Hon'ble Supreme Court was not properly assisted while passing the judgment in the latter case. The learned A.A.-G. further argued that unless the applicant could prove that the as has been .prejudiced because the same police officers, who had initially registered the F.I.R., carried out the investigation in the case, he cannot argue that the investigation carried out was contrary to the provisions of Article 18 of the Police Order, 2002.

9. On the factual aspect of the case, the learned A. A.-G. submitted that the applicant's assertion that he has been falsely implicated in the .case at the instance of his in-law is a mere assertion and has not been proved. He, therefore, prayed that the bail application may be dismissed.

10. We have examined the case in the light of the arguments of the learned counsel for the applicant and the A.A.-G. and have carefully perused the records of the case, including the F.I.R. and have also perused the judgments relied upon by the learned counsel for the parties.

11. It is an admitted fact that out of 10 Kgs. of Charas contained in 10 bags of 1 Kg each which were allegedly recovered from the applicant, only one Kg. Charas was sent for chemical examination and no samples were taken out from the remaining nine bags. As regards the motorcycle allegedly used in the commission of the offence, from a perusal of the record we have not been able to lay our hands on any document which can conclusively prove that the said motorcycle was owned by the applicant or was in any way connected with him. It is also admitted fact that the police officers of the same Police Station, who had registered the F.I.R. against the applicant, had conducted investigation of the case instead of transferring the investigation to the Investigation Department of the District.

12. We have carefully perused the contents of the judgment of the Hon'ble Supreme Court of Pakistan in the case of Ali Muhammad quoted supra and Muhammad Hashim quoted supra, which, according to learned Assistant Advocate-General, are in conflict. In Muhammad Hashim's case, the Hon'ble Supreme Court held as under:--

"It is a jail appeal, therefore, record of the case perused with the assistance of learned State counsel carefully. It emerges there-from that vide recovery memo. Exh. P/1-A, 4 Grams of Charas was taken out from total of 288 rods. Nothing is available on record to show whether sample for examination by Chemical Examiner was taken out from each rod to ascertain that 288 rods were of Charas or some other commodity, having resemblance with the colour of Charas like oil Cake (Khal) etc. It is to be noted that under Act, 1997, stringent sentences have been provided if offences charged against the accused within any component of section 9 is proved. Therefore, for such reason, Act, 1997 has to be construed strictly and the relevant provisions of law dealing with the procedure as well as furnishing the proof like the report of expert, etc. are to be followed strictly in the interest of justice, otherwise in such-like case it would be impossible to hold that total commodity recovered from his possession was Charas. However, in given facts and circumstances of the case, it would be presumed that sample was taken out from only one rod. As far as remaining rods are concerned, in absence of arty sample taken out from them, it would not be possible to hold that they were the rods of Charas or otherwise. Therefore, taking into consideration this aspect of the case, we are of the opinion that for such reasons, the case of prosecution has become doubtful, as such; sentence awarded to appellant by the trial Court and maintained by the High Court is not sustainable."

In Ali Muhammad's as quoted supra the Hon'ble Supreme Court held as under:--

"So far the next contention of the learned counsel for the appellants that if it be assumed that one slab of Charas weighing .half kilogram which was sent to the Chemical Examiner far examination was recovered from the appellants then also sentence could have been imposed beyond seven years in view of section 9(b) of the Control of Narcotic Substances Ordinance, 1995. We do not find substance in the said contention also. Recovery to ten kilograms of Charas from the appellants has been proved beyond doubt on the basis of confidence-inspiring evidence .produced by the prosecution. As observed above the appellants never challenged the nature/contents of substance being not Charas or narcotics. The appellant cannot now turn around and say that because only one slab of half kilogram was recovered which was sent to the Chemical Examiner .who opined it to be Charas therefore appellants be sentenced according to the quantity sent to the Chemical Examiner. In case the appellants defence would have been made that contents of the entire-case property so recovered was not Charas they could have an application to the trial Court or before the High Court for re-examination of; the entire case property which was also produced in the trial Court as Article `A' having not done so, such plea cannot be said to have merit and substance considering also that the said plea being plea of the tact, would require detailed enquiry and re-examination of the narcotic substance which cannot be gone into by this Court at this stage. "

13. From a perusal of this judgment we have observed that one of reasons which prevailed with the Hon'ble Supreme Court is that the appellants before them have never challenged nature/contents of the substance being not Charas or narcotics and the Hon'ble Court found the evidence produced by the prosecution to be confidence-inspiring whereas in the present case the applicant has, throughout, maintained that he has been falsely implicated in the case and that no Charas has been recovered' from him.

14. We would also like to refer to the leave granting order passed by the Hon'ble Supreme Court in Criminal Petition No. 2-K of 2007 (Supra) .wherein the Hon'ble Supreme Court had granted leave to consider the effect of withdrawal of sample from one pack only for sending to Chemical Examiner. We have also been informed that both these points of law are subjudiced before the Hon'ble Supreme Court. Interestingly, this criminal petition for leave to appeal had been filed against the judgment of a Division Bench of this Court on which reliance has been placed by the learned A.A.-G.

15. We are also of the view that where conflicting views have been given by the Hon'ble Supreme Court than the one beneficial to the accused should be followed. Hence, at the most he could be convicted under section 9(b) of the Act which provides punishment upto 7 years' R.I. etc. and hence not covered under the prohibitory clause.

16. On the basis of the above discussion, we are of the considered view that the applicant is entitled to bail. We would, therefore, allow this bail. application and admit the applicant to bail on furnishing one surety in -the sum of Rs.200,000 with P.R. bond in the like amount, to the satisfaction of the trial Court.

H.B.T./M-125/K Bail granted.