BABAR JAMEEL Versus State

ORDER

ADNAN-UL-KARIM MEMON, J.--- The Applicant namely Babar Jameel is seeking post arrest bail in FIR No.D-0307017/2017 registered at Police Station A.N.F-II, Karachi for offences punishable under section 6 read with sections 9(c), 14 and 15 of Control of Narcotic Substances Act, 1997.

2. Brief facts of the prosecution case are that on 3.4.2017 at about 1820 hours Inspector Iftikhar Hussain of Police Station Anti-Narcotics Force, Muhammad Ali Society, Korangi, Karachi lodged FIR against the Applicant who is serving in Pakistan Post Office with the allegation that he attempted to smuggle prohibited tablets in cargo to Cambodia through Flight No. TG.0342/760584; that Police Party received information and reached at about 12:30 a.m. at ANF counters, Jinnah International Airport Cargo Complex; that Applicant (Babar Jamil) was seen standing at the counter with blue colour nylon bag in his right hand and shipment documents; that he was apprehended at the spot. Police secured the prohibited material under proper Mushirnama and found that prohibited medicine (Diazepam) 10 mg volume, each bag containing 220 trips, total 5500 trips, each strip containing 10 tablets, total 550000 tablets weighing 9.270 kilograms. The prohibited material was also sealed under proper Mushirnama for chemical examination. Mushirnama of arrest and recovery was also prepared; thereafter police lodged FIR under sections 6 and 9(c), 14 and 15 of Control of Narcotic Substances Act, 1997 against Applicant and others. Investigating Officer recorded statements of prosecution witnesses, interrogated Applicant; got conducted chemical examination of recovered prohibited material and obtained its report on 11.4.2017. Finally, Investigating Officer submitted Charge Sheet on 19.4.2017 before Special Court for C.N.S. Karachi. The Applicant moved Bail Application No. 361 of 2017 in Special Case No. 306 of 2017 before the learned Trial Court which was dismissed vide Order dated 8.6.2017.

3. Mr. Imdad Khan learned counsel for the Applicant has contended that Applicant is falsely implicated in the present crime. Per learned counsel no offence has been committed by the Applicant. Per learned counsel the Applicant only performed duty as porter being employee of Pakistan Post Office; that no objectionable material has been recovered from Applicant's possession; that Applicant was not aware about the prohibited medicine in the cargo and was only directed to dispatch the sealed parcel by Senior Post Office Clerk; that there is no private witness of the alleged recovery which is in violation of section 103, Cr.P.C.; that there is delay of six hours in lodging of FIR without any plausible explanation; that it is not mentioned in the FIR as to whether the alleged recovery was sent for chemical examination; that alleged recovery does not fall within the definition of drug defined in section 3(g) of Drugs Act, 1997 that recovered medicine is a registered medicine and the same is not a declared prohibited drug under sections 6 and 9 of Control of Narcotic Substances Act, 1997. He next added that "Diazepam" is imported under the license issued by Ministry of Health, Government of Pakistan and is used for medical purposes. Therefore, the Applicant cannot be saddled with criminal liability of the alleged offence. He next contended that co-accused has been granted bail by the learned Trial Court vide Order dated 27.5.2017 whereas, the case of Applicant is on the better footing; that rule of consistency applies in case of Applicant; that per learned counsel Chemical Report says that "Diazepam" contains only 2% of narcotic substance whereas 98% contents are medicated therefore, "Diazepam" cannot be labeled as a narcotic substance. Per learned counsel Applicant has no previous criminal record and entire case requires further enquiry into the guilt of Applicant. He lastly prays for grant of bail to the Applicant. In support reliance is placed the case of Wajid @ Waji v. The State (2016 PCr.LJ 831), Shahid Ali Laghari v. The State (2014 PCr.LJ. 427), Tafseel Hussain @ Mantoo v. The State (2006 YLR 579), Muhammad Saleh v. The State (1987 PCr.LJ 1411), Sakina Bibi v. The State (2008 SCMR 1111) and Muhammad Hanif v. The State (SBLR 2016 Sindh 29).

4. Mr. M. Habib Ahmed, learned Special Prosecutor, ANF opposed grant of bail to the Applicant and argued that Applicant was arrested at the spot with 9.270 kilograms of "Diazepam" tablets. Per learned counsel "Diazepam" is a Psychotropic Substance prohibited under Control of Narcotic Substances Act, 1997 which is recovered from exclusive possession of Applicant; that police is duty bound to register a case if any person possess, transports or smuggles and delivers on any terms prohibited material as defined under Control of Narcotic Substances Act, 1997. He next argued that Chemical Examination Report dated 11.4.2017 of the recovered/prohibited material supports the prosecution case; that Applicant has been charged with offence under section 6 read with section 9(c) of Control of Narcotic Substances Act, 1997 which is of serious nature and falls within the prohibitory clause of section 497(1), Cr.P.C.; that the prosecution has collected sufficient incriminating evidence against the Applicant and if the bail is granted the applicant will continue to commit similar criminal activities causing harm to the public at large. He next contended that Prosecution case is fully supported by the statements of the witnesses therefore; Applicant is not entitled to the concession of bail; that the prosecution witnesses have no enmity with the Applicant which could suggest false implication of the Applicant. He next added that Applicant has nominated co-accused Naeem and Abdul Qadir and nothing has been recovered from them therefore, the case of Applicant is distinguishable from that of both the co-accused. And, bail order dated 27.5.2017 passed by the learned trial Court granting bail to co-accused does not give any benefit to the Applicant.

5. I have heard learned counsel for the Applicant, learned special prosecutor for A.N.F, and perused the material available on record as well as case law cited at the Bar.

6. I am conscious of the fact that while deciding a bail application, this court has to consider the allegations made in the FIR, statements recorded under section 161, Cr.P.C., nature and gravity of charge, other incriminating material against the accused, legal pleas raised by the accused and relevant laws. In this regard, I am fortified by the decision of Honorable Supreme Court rendered in the case of Shahzad Ahmed v. The State (2010 SCMR 1221).

7. Record reflects that Applicant is arrested red-handed with possession of 9.270 kilograms of Diazepam Tablets (Psychotropic Substances). Chemical Examination Report supports the prosecution case. The recovery of Diazepam tablets was duly witnessed by the police officials who are as good witness as any other person and who had no ostensible reason to falsely implicate the Applicant in a case of present nature. Case of the Applicant is hit by prohibition clause contained in Section 51 of the Control of Narcotic Substances Act, 1997. Diazepam is mentioned in section 2(za) at serial No. 24 of schedule of Control of Narcotic Substances Act, 1997 which comes within the definition of Psychotropic substances and is prohibited to possess and transport dispatch, deliver on any terms whatsoever. Applicant, at this juncture has failed to substantiate his claim that alleged recovered Diazepam (Psychotropic substances) is for the exceptions as provided in the law, therefore no case of further enquiry is made out.

8. I have noted that Applicant has failed to produce any material to suggest that he is falsely implicated in the alleged crime. Merely saying that Applicant only performed duty as porter to dispatch the cargo is not sufficient to discard the prosecution story as false, which is even otherwise a factual controversy and, at bail stage only tentative assessment of the record is to be made.

9. The offence falls under section 9(c) of Control of Narcotic Substances Act, 1997 which is punishable with life imprisonment.

10. The case law cited by the learned counsel for the Applicant is distinguishable from the facts and circumstances of the case in hand.

11. In view of the above facts and circumstances the Applicant has not made out a case for grant of bail at this stage therefore, the instant bail application is dismissed.

12. The findings mentioned above are tentative in nature which shall not prejudice the case of either party at the trial stage. However, the learned Trial Court is directed to record evidence of the material witnesses within a period of two months where after the Applicant will be at liberty to move fresh bail application before the learned Trial Court on fresh ground, if any.

13. That above are the reasons of short order dated 14.7.2017.

WA/B-12/Sindh Bail refused.