RIAZ KHAN Versus State
NAIMATULLAH PHULPOTO, J.--- Applicant/accused Riaz Khan son of Akbar Khan has applied for post arrest bail in FIR No.174/2015 registered at P.S Itehad Town for offence under section 9(c) of Control of Narcotic Substances Act, 1997.
2. Brief facts of the prosecution case as disclosed in the FIR are that on 17.05.2015, ASI Muhammad Arshad of PS Itehad Town left police station along with his subordinate staff for patrolling in the area. He received spy information that applicant/accused Riaz along with co-accused was selling Charas at Pahari near Madina Masjid Street, Gulshan-e-Ghazi Baldia Town, Karachi. Police party reached at Pahari near Madina Masjid Street, Gulshan-e-Ghazi Baldia Town, Karachi, at 1910 hours, where police party saw three accused persons. They tried to slip away while seeing police party but police surrounded and caught them hold. ASI recovered one plastic bag from the hand of applicant/accused Riaz Khan and it was checked in presence of the mashirs, 10 rods of charas were found in the bag, wrapped in white plastic and 2015-16 Sher Sindh were written upon such rods. It was further noticed by the ASI in presence of mashirs that there were five more packets in the same bag in which gold club was written total rods of charas recovered from the possession of applicant/accused were weighed, the same were 10500 grams charas. Police also recovered plastic bag from the possession of another accused namely Mukhtiar alias 1-D, it was opened and 1020 grams of charas were recovered. Police also secured from the possession of accused Asif 1050 grams Charas. It is further alleged that from the possession of accused Asif Khan one unlicensed pistol having four live rounds were also recovered. Mashirnama of arrest and recovery was prepared in presence of mashirs namely HC Akhtar Hussain and PC Basharat. Case property was sealed at the spot. Thereafter, all the accused persons and case property were brought at police station where FIR bearing No. 174/2015 was registered against the applicant/accused Riaz Khan son of Akbar Khan, Mukhtiar alias 1-D son of Tayyabullah and Asif Khan son of Khan Bahadur under section 9(c) of the C.N.S. Act, 1997 by ASI Muhammad Arshad on behalf of State. Separate FIR under section 23(1)(a) of the Sindh Arms Act, 2013 was also lodged on behalf of the State against accused Asif.
3. During investigation in the aforesaid crime, 161, Cr.P.C. statements of the P.Ws were recorded; charas was sent to the chemical examiner within three days. Positive report was received. On the conclusion of the investigation, challan was submitted against the accused under section 9(c) of the C.N.S. Act, 1997.
4. Bail Application was moved on behalf of the applicant/accused before the Trial Court, the same was rejected vide order dated 13.07.2015.
5. Mr. Moula Bux Bhutto learned Advocate for the applicant/accused Riaz Khan mainly contended that during investigation, no evidence/material was collected by the I.O regarding selling of the Charas by applicant/accused. He has further argued that though it was case of spy information but I.O failed to associate independent and respectable persons of the locality to witness recovery proceedings. He has further argued that there is no mention of computerized scale in the Roznamcha entry. It is also argued that there was delay of three days in sending Charas to the chemical examiner for which no plausible explanation has been furnished. It is further argued that there is some variation in the signatures of the I.O. in the investigation papers. Lastly, it is argued that case against the applicant/accused requires further enquiry.
6. Mr. Zafar Ahmed learned Additional P.G. appearing on behalf of State argued that huge quantity of charas has been recovered from the possession of the accused in presence of mashirs, report of chemical examiner is positive and alleged offence is punishable for death or imprisonment for life. He has further submitted that no enmity whatsoever has been suggested against police officials. Lastly, he has argued that other points raised by the learned counsel for the applicant/accused require deeper appreciation of evidence which is not permissible at bail stage. He has strongly opposed the bail application. He has relied upon the case of Socha Gul v. The State (2015 SCMR 1077).
7. After hearing the learned counsel for the parties, I have carefully perused the relevant record. In the mashirnama of arrest and recovery it is mentioned that from the possession of applicant/accused Riaz, charas weighing 10500 grams was recovered in presence of the mashirs and FIR was lodged under section 9(c) of the Control of Narcotic Substances Act, 1997 on 17.05.2015 and Charas recovered from the possession of applicant/accused was sent to the chemical examiner within three days and positive report has been received. As regards to the contentions raised by learned counsel for the applicant/accused that no evidence/material has been collected during investigation regarding selling of the charas by applicant/accused and variations in the signatures of the I.O. on the investigation papers, such contentions require deeper evidence, which is not permissible at bail stage. Apparently, no enmity whatsoever has been alleged against police officials. Learned Additional P.G. has rightly relied upon the case of Socha Gul (supra) , in which Honourable Supreme Court of Pakistan refused to grant concession of bail to the accused from whom 4 kg charas was recovered and it was observed as under:
"4. In the present case, the accused is charged with the commission of offence under section 9(c) of C.N.S. Act of 1997, which reads as under:
9. Punishment for contravention of sections 6, 7 and 8--- Whoever contravenes the provisions of sections 6, 7 or 8 shall be punishable with:
(a) Imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is ten grams or less;
(b) Imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram;
(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 upto one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (c);
Provided that, if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life.
5. From the above reproduction, intent and scheme of the legislator is quite clear about the quantum of prescribed punishment under section 9(c) (ibid), which could be either death or imprisonment for life or an imprisonment for a term which may extend to fourteen years, in addition to fine upto one million rupees. In our opinion, in such circumstances, neither categorization of sentencing nor any guess work or speculative exercise could be undertaken by the Court at bail stage to enlarge an accused on bail in such crimes, which will amount to pre-empting the mind of the trial Court, controlling its powers in the matter of sentencing an accused and determining the quantum of sentence upon his conviction."
8. Since huge quantity of charas weighing 10500 has been recovered from the possession of the applicant/accused, prima facie, there appear reasonable grounds for believing that applicant/ accused has committed the offence under section 9(c) of the Control of Narcotic Substances Act, 1997, which is punishable for death or imprisonment for life and also liable to fine upto one million rupees. Therefore, bail application merits no consideration and the same is dismissed.
9. Needless to mention that above observations are tentative in nature and trial Court shall not be influenced by the same while deciding the case on merits.
HBT/R-19/Sindh Bail refused.