MUHAMMAD SAEED KHAN Versus State
ORDER
KHADIM HUSSAIN M. SHAIKH, J.--- Through this application, applicants Muhammad Saeed Khan and Shafqatullah have sought their release on bail in Special Case No.197 of 2016 re-State v. Shafqatullah and another culminated from Crime No.98/2016 for offence under sections 6, 9(c), Control of Narcotic Substances Act, 1997, of Police Station Manghopir, after their bail application was dismissed by the learned Judge, Special Court-I (CNS), Karachi vide order dated 31.05.2016.
2. The prosecution case in brief is that on 21.04.2016, a police party comprising of four police personnel headed by ASI Muhammad Akhtar of Police Station Manghopir, while patrolling, when reached at Mushki Para Road, near Chadar Factory, Manghopir, Karachi at 0030 hours, they apprehended the present applicants/accused Shafqatullah and Muhammad Saeed. On their search, the police recovered charas, weighing seven kilograms in Chittar type pieces, one brown colour wallet, containing some cards etc, and one mobile phone of Nokia Company from the possession of accused Shafqatullah and charas, weighing eight kilograms in Chittar type pieces and two mobile phones i.e. Q-MOBILE and SAMSUNG Companies from the possession of accused Muhammad Saeed in presence of P.C. Mumtaz Ali and P.C. Ali Akbar under the mashirnama with their signatures and then the accused and the recovered property were brought at Police Station Manghopir, where the above FIR was lodged.
3. The learned advocate for the applicants has mainly contended that the applicants have been falsely implicated in this case; that the applicant Shafqatullah was taken away by 3/4 persons in a white colour Car on 10.04.2016; and, that no private person has been cited as witness or mashir, therefore, the applicants are entitled to the grant of bail. He, therefore, prays that the applicants may be granted bail.
4. Conversely, learned Additional Prosecutor General, Sindh has opposed the grant of bail to the applicants, contending that the huge quantity of charas weighing 15 kilograms was recovered from the possession of the applicants; that the recovery of charas was made by police while patrolling during odd hours of night, and, private person, being not available, could not be associated with the recovery proceedings by the police; and, that the case is covered by the prohibitory clause of section 497, Cr.P.C. She, therefore, prays that the bail application may be dismissed.
5. I have considered the arguments of the learned counsel for the applicants as well as learned Additional Prosecutor General Sindh for the State and have also gone through the material available on record with the assistance of learned A.P.G.
6. A perusal of the record reveals that the applicants were allegedly apprehended and recovery of huge quantity of charas, weighing 15 kilograms was effected from their possession by the police while patrolling and that too in odd hours of the night at 0030 hours and as such the aforementioned reason for not associating the private person with the recovery proceedings given by the learned A.P.G. appears to be plausible; it needs no re-iteration that the members of public are generally reluctant to offer themselves as witnesses in the cases like case one in hand; even otherwise the standard of proving case for the offence punishable under the Special Law namely Control of Narcotic Substances Act (XXVI of 1997) is different than that of the General Law, therefore, no adverse inference, for having not associated the private person in recovery proceedings, can be drawn against the prosecution, especially at this juncture; that the report relating to the samples of charas, sent in sealed parcels to Forensic Laboratory (Chemical Analyzer), is positive; that any opinion on the contention of the learned counsel that applicant Shafqatullah was allegedly taken away by 3/4 persons on 10.04.2016 i.e. 11 days prior to the incident and its nexus with the offence involved in this case at the bail stage without any material worth consideration, may prejudice the case of either side; moreover, in the wake of note of caution, having been provided under the Provisions of section 51 of the Act ibid, on granting bail to the accused involved in such offences, bail plea of the accused is not to be accepted in ordinary course. For the sake of convenience and ready reference section 51 ibid, is reproduced here:-
51. No bail to be granted in respect of certain offences.
(1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death.
(2) In the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount.
7. Furthermore, the offences punishable under Control of Narcotic Substances Act, 1997, having been considered to be the offences against society at large, are by their nature heinous offences, therefore, the Courts' approach should be dynamic and the technicalities should be overlooked. Reference can be made to the case of Ismaeel v. The State (2010 SCMR 27), wherein the Hon'ble Supreme Court of Pakistan has observed that:-
"................We may observe that the Courts cannot expect in the case of smuggling of narcotics, the evidence of the nature, which is normally available in an ordinary criminal case as the persons who indulge in such type of notorious activities are more organized and influential having deep rooted contacts within the country and outside the country because they have connections all over the world, therefore, they are always in position to manage to cause dents in the case and evidence of the prosecution. The standard of proving the case under special law is different in case the special law is read as a whole while comparing with the general law. It is a settled principle of law that special law excludes the general law as law laid down by this court in Ziaur Rehman's case PLD 1973 SC 49 and Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473. Acts like this which not only bring disgrace to the country's name but also are deteriorative to the society and atrophic to the youth who develop and carve the future of the country and mould the destiny of the Nation. Such illegal and indecent activities are converting our younger generation into drug addicts, giving birth to a never ending cycle of enormities which not only cripple a society but also ruins the destiny of so many families in just a blink of an eye. Therefore, the courts approach should be dynamic and should overlook the technicalities in the large interest of the country and public welfare."
In case of Socha Gul v. The State (2015 SCMR 1077) the Hon'ble Supreme Court of Pakistan, while refusing the leave against the rejection of bail application of accused from whose possession four kilograms charas was recovered, has held that:-
"8. It is pertinent to mention here that offences punishable under C.N.S. Act of 1997 are by its nature heinous and considered to be the offences against the society at large and it is for this reason that the statute itself has provided a note of caution under section 51 of C.N.S. Act of 1997 before enlarging an accused on bail in the ordinary course. When we refer to the standards set out under section 497, Cr.P.C. for grant of bail to an accused involved in an offence under section 9(c) of C.N.S. Act of 1997, even on that basis we find that an accused charged with an offence, prescribing various punishments, as reproduced above, is not entitled for grant of bail merely on account of the nature or quantity of narcotic substance, being four kilogram. Firstly, as deeper appreciation of evidence is not permissible at bail stage and secondly, in such situation, looking to the peculiar features and nature of the offence, the trial Court may depart from the normal standards prescribed in the case of Ghulam Murtaza (supra) and award him any other legal punishment. Thus, in our opinion, ratio of judgment in the case of Ghulam Murtaza (supra) is not relevant at bail stage."
In case of Doulat Khan v. The State (2016 SCMR 1447) the Hon'ble Supreme Court of Pakistan, while refusing the leave against the dismissal of bail application of accused from whose possession 2400 grams charas and 1200 grams of opium was recovered, has held that:-
"2. After hearing the learned counsel for the petitioner, learned ASC appearing on behalf of the ANF and perusing the available record with their assistance, it has been noted by us that petitioner was apprehended along with his co-accused while carrying 2400 grams of Charas and 1200 grams of opium. The petitioner was apprehended at the spot by the raiding party and as per the FIR he himself handed over two Nos. packets containing Charas and opium to the complainant (SI). Learned counsel for the petitioner has not been able to refer to anything from the record which could suggest that the complainant or any other member of the raiding party had any animus against the petitioner. The case of the petitioner falls within the prohibitory clause of section 497 of the Code of Criminal Procedure. In this view of the matter coupled with the fact that huge quantity of narcotics has been recovered from his possession, petitioner is not entitled for the concession of bail."
8. In view of what has been discussed above and from the tentative assessment of the material available on the record, I am of the considered view that, prima facie, the applicants Muhammad Saeed and Shafqatullah, are connected with the offence alleged against them, falling within the prohibitory clause of section 497, Cr.P.C., which dis-entitles them to the grant of bail, therefore, their bail application is liable to be dismissed.
9. Above are the reasons of short order announced by me on 25.10.2016, whereby the instant bail application was dismissed with the directions to the learned trial Court to conclude the trial preferably within two months.
10. Needless to add that the observations made hereinabove, are tentative in nature only for the purpose of deciding bail application, and the learned trial Court shall decide the case on merits without being influenced by the aforementioned observations.
WA/M-91/Sindh Bail refused.