DUR MOHAMMAD alias DUROO Versus State
ORDER
ABDUL RASOOL MEMON, J.--- Applicant Dur Muhammad seeks post arrest bail in Crime No.64/2015, P.S. Mirpur Sakro under section 9-C of Control of Narcotic Substances Act, 1997.
2. The allegation against the applicant is that on 13.9.2015, at 2230 hours, at curve of Ghulam Muhammad Pakka Road, Mirpur Sakro, the applicant was apprehended by the police having in possession of 3250 gram of Charas. Such mashirnama of arrest and recovery was prepared by ASI Asghar Shah in presence of two police officials and property was sealed. Thereafter the applicant was brought at police station and FIR was registered against the applicant. After completion of investigation, case was challanned in the Court of law.
3. Learned counsel for the applicant has argued that the recovery of charas has been made by the A.S.I. in violation of section 21 of Control of Narcotic Substances Act; that brother of the present applicant namely Umar Gambo Balouch had filed C.P. No. 161/2012 against Thatta Police and thereafter the police became annoyed and implicated the applicant and his relatives in false cases and has placed on record copies of FIRs Nos.171/2012, 172/2012, 173/2012 registered at police station Thatta and FIR No.56/2014 at Police Station Mirpur Sakro; that no independent witness has been cited in this case though the recovery has been allegedly made from the road side; that on apprehension of the applicant by the police a news was published in the Daily "Awami Soch" wherein there is no mention that any recovery of charas was made from the applicant; that the recovery of 3250 gram does not exceed 10 kilogram, therefore, the applicant is not liable to be convicted for life imprisonment, hence his case does not fall within the ambit of Prohibitory Clause. In support of her contention, she has placed reliance on the case of Ziarat Khan v. The State (2010 MLD 1908) and Shah Nawaz alias Shanoo v. The State (2014 PCr.LJ 482).
4. Learned A.P.G. has opposed the grant of bail to the applicant on the ground that the petition which has been brought on record by the learned counsel for the applicant pertains to the year 2012; that the FIRs produced on record reveal that these were registered before filing of the petition which prima facie shows that the applicant is involved in similar type of cases of narcotics; that non-joining of the public person is not fatal to the prosecution case. He further submits that the offence alleged falls within Prohibitory Clause of section 497, Cr.P.C., therefore, under section 51 of CNS Act, the applicant is not entitled to concession of bail.
5. I have carefully considered the arguments and gone through the relevant papers on record. The first objection of learned counsel for the applicant is that the complainant Syed Ali Asghar is an A.S.I. therefore, he was not competent to carry out the investigation. On this point, the Hon'ble Supreme Court in a case of Zafar v. The State (2008 SCMR 1254) has held that non-compliance of mandatory provisions of section 21 of Control of Narcotics Act would not be a ground for holding trial or conviction bad in law because such directions are not mandatory but are directory.
6. So far as the objection of non-compliance of section 103 is concerned, admittedly as per contents of FIR the recovery has not been made from any house or vessel but from road side, therefore, section 103, Cr.P.C. cannot be invoked. However, section 25 of Narcotics Substance Act excludes application of section 103, Cr.P.C.
7. The contention of learned counsel for publication of news item in daily "Awami Soch" regarding arrest of the accused but there is no mention of recovery of anything from his possession is concerned, the said newspaper clipping has not been placed on record. However, newspaper clippings contradicting version contained in the FIR to the benefit of the accused could not be considered at bail stage and only be proved in a way required by law of evidence of Qanun-e-Shahadat. Moreover, the newspapers clippings could not be used either in favour of the prosecution or defence unless author of the same was examined in a Court as a witness. In this respect I am supported by a case of Muhammad Ashraf Khan v. The State and another (1996 SCMR 1747).
8 So far as the allegations of enmity and filing of the petition by the brother of the complainant in the year 2012 is concerned, it was filed against the SHO Police Station Thatta and not against the present complainant and the FIRs produced on record are also of year 2012, therefore, connection of the said petition with present case is yet to be established at trial by the applicant.
9. In respect of contention that the quantity of narcotics is 3250 gram and is below 10 kilogram thus, under categorization of sentences produced in case of Ghulam Murtaza v. The State (PLD 2009 Lahore 362) does not come within the Prohibitory Clause of section 497, Cr.P.C. This point has elaborately been discussed in the case of Socha Gul v. The State (2015 SCMR 1077) by the Hon'ble Supreme Court of Pakistan wherein it is held that the ratio of judgment in Ghulam Murtaza case is not relevant at bail stage.
10. The offence under section 9-C is punishable for imprisonment of life or death or an imprisonment for a term also which may extend to fourteen (14) years in addition to fine up to one million rupees or death, thus comes within the meaning of Prohibitory Clause of section 497, Cr.P.C. and such heinous offence is considered to be offence against the society at large.
11. There is no cavil with the proposition laid down in the case law relied upon by the learned counsel for the applicant, in my humble view, the same are not applicable to the facts and circumstances of this case.
12. In view of above facts and circumstances discussed abvoe, no case for grant of bail has been made out, therefore, the bail application stands dismissed.
13. Needless to say that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced of the same at trial.
ZC/D-9/Sindh Bail refused.