ASGHAR ALI Versus State
This is a bail application filed by Asghar Ali against the dismissal of his post-arrest bail by the Special Court No. 1 (Control of Narcotic Substances), Karachi, in a case involving the recovery of 610 grams of heroin from capsules excreted by the accused under section 9(c) of the Control of Narcotic Substances Act, 1997. The core legal question revolves around whether the accused is entitled to post-arrest bail considering the quantum of recovery, the period already spent behind bars, and the likelihood of delay in the conclusion of the trial. The Sindh High Court held that the applicant is entitled to bail as the exact weight of the recovered narcotics was debatable, the trial was likely to take time, and the continued incarceration of the accused was not justified. The court laid down the principle that post-arrest bail may be granted where the trial is protracted, the accused has already undergone a substantial period of detention, and the specific circumstances of the case warrant relief.
- Whether an accused person is entitled to post-arrest bail when the trial is likely to take considerable time and the statutory delay constitutes a ground for further inquiry?
- Does the recovery of narcotics from the stomach through capsules warrant the denial of bail under the prohibitory clause in every circumstance?
- Whether the rule of consistency applies when the co-accused's bail application was disposed of without a decision on merits?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 497, Code of Criminal Procedure 1898
ORDER
SYED MEHMOOD ALAM, J.--- This bail application is directed against the order, dated 11-7-2008 passed by the learned Special Court No.1, (Control of Narcotic Substances), Karachi in Special Case No.31 of 2008, F.I.R. No.13 of 2008, under section 9(c) of C.N.S. Act, 1997, registered at Police Station ANF-II, Karachi, whereby the bail application of the applicant was dismissed.
2. Precisely, the facts of the prosecution case are that on 26-1-2008, the ANF official arrested the applicant Asghar Ali from Jinnah International Airport when he was going to abroad. Thereafter, 70 heroin filled capsules weighing about 610 grams were excreted from the stomach of the applicant in presence of Mashirs. Besides the applicant, co-accused Muhammad Farooq was also arrested and 936 grams of heroin was recovered from 103 capsules concealed in the same manner. The Mashirnama of arrest and recovery was prepared on the spot. On completion of investigation the applicant was challaned.
3. Heard the learned counsel for .the applicant and learned Special Prosecutor ANF and perused the record carefully.
4. The learned counsel for the applicant has contended that the applicant is innocent and has been falsely implicated in the case due to enmity, the case requires further inquiry, as no MLO was examined by the prosecution, the case falls under section 9(b) of the CNS Act, which does not fall under the prohibitory clause of section 497, Cr.P.C. He has further contended that the investigation has already been completed and all the witnesses are official witnesses, hence there is no apprehension of tampering the evidence or cause influence to the witnesses and no likelihood of his absconsion, if enlarged on bail. He further contended that there is no previous criminal record of the applicant and for the last 9 months he is jail.
5. Conversely, learned Special Prosecutor ANF vehemently opposed the grant of bail and contended that there are reasonable grounds to believe that the applicant is involved in the crime and he has been rightly denied the bail by the trial Court and there is no legal infirmity in the impugned order. Further, the bail application of the co-accused Muhammad Farooq has been dismissed by this Court bearing Criminal Bail Application No.623 of 2008 on 12-6-2008, hence this application is also liable to be dismissed.
6. No doubt, the bail application of co-accused Muhammad Farooq has already been dismissed by this Court, but from his possession 103 heroin filled capsules weighing about 936 grams were recovered and the said application was not dismissed on merits, but the learned defence counsel was satisfied, if the trial Court was directed to conclude the trial within six months, hence in the above terms the said application was not pressed and was dismissed accordingly. While in this case, no doubt, the recovery of 70 capsules weighing 610 grams of heroin said to have shown, but the exact weight is not transpired and per learned counsel for the applicant, it will not be more than 300 grams. The applicant is behind the bars for the last 9 months though the charge has been framed and per learned defence counsel one witness has been examined, but as a practice of the learned lower Court in the cases where the recovery is from 200 to 400 grams, on pleading guilty, the learned trial Court used to convict and sentence the accused persons from one year to two years. He has further submitted that as the MLOs, the other staff of the hospital and the Mashirs would be examined, which will take time, hence, in the above circumstances, to keep the applicant in jail is not justified. The arguments made by the learned counsel for the applicant appears to have some force and the learned Special Prosecutor ANF also could not controvert the same, hence the applicant is entitled for grant of bail, therefore, he was granted bail subject to furnishing surety in the sum of Rs.2,00,000 (Rupees two Lacs only) with P.R. Bond in the like amount to the satisfaction of the trial Court.
7. These are the reasons of my short order passed today in Court.
N.H.Q./A-164/K Bail allowed.
Cited by 4 cases
- ABDUL NAEEM vs THE STATE 2012 MLD 1713
- ASGHAR vs THE STATE 2011 MLD 1890
- QAMAR HUSSAIN vs THE STATE 2011 YLR 2327
- DAIMUDDIN and 2 others vs THE STATE 2010 MLD 1089