AFZAL AHMED Versus State
ORDER
KHADIM HUSSAIN TUNIO, J.--- Applicant Afzal Ahmed seeks bail in FIR No. 14 of 2015 dated 20.02.2015 registered at Police Station A.N.F. Clifton, Karachi under sections 6/9-C, C.N.S. Act, 1997, as his such request has already been turned down the learned Special Court-II (CNS) Karachi vide order dated 30.03.2015.
2. As per prosecution's accusation, the complainant SI Attaullah Khan of P.S. ANF Clifton, Karachi reported that on 19.02.2015 he received spy information that International smuggler of narcotics Riaz Ahmed Khan in connivance of other companions especially Afzal Ahmed son of Ghulam Haider; Muhammad Arif Cheema and Khalil-ur-Rehman was intending to smuggle the contraband stuff through Container No.TORU-011525-4, after concealing the narcotic stuff in show piece stones prepared by salt in the name of Messrs Hanan Trading, Gujranwala, through IT 'E' Form. Upon his information complainant along with other officials reached at PICT, Sea Port at about 2330 hours where they met with ANF Incharge Sagheer and other staff, but they refused to act as mashir, therefore in presence of ASI Muhammad Hassan and PC Muhammad Ahmed met with clearing agent Muhammad Yousuf, who handed over the documents of the container 'E' Form. Commercial Invoice, GD and Packing List according to which clearing agent was Messrs Pak Enterprises whereas the details of the items were mentioned as lamp prepared by salt and other items and in presence of the witnesses the seal of the container was removed and from the container 318 small and big cartons, 239 rotary bags, 10 big bags containing salt stone recovered. Upon further search of 318 big and small cartons from serial Nos. 101 to 125, each carton containing 8 lamps in small white box in which one white polythene bag in each box was concealed with extreme skill and total 200 white polythene bags recovered from the lamps prepared by salt and upon opening of these polythene bags heroin recovered, the heroin was taken out from all the polythene bags and accumulated in one while polythene bag and it was weight through electronic weighing machine it was 20.800 Kgs and from the recovered heroin 10.200 Kgs. taken out for purpose of chemical analysis and the remaining heroin was sealed in the plastic polythene bag and then in cloth bag, whereas 200 empties heroin polythene bags also sealed in separate cloth bag and the other cartons were sealed in the same container for the purpose of evidence. Memo was prepared at the spot and FIR was lodged under sections 6/9-C read with sections 14/15 of C.N.S. Act, 1997.
3. Mr. Shah Amroz Khan, learned counsel for the applicant contends that the applicant is innocent and there is absolutely no evidence against him which can connect him with the commission of crime except for ambiguous confessional statement recorded during interrogation by ANF officials and it has no value in the eye of law; that the applicant has been booked in false case due to ulterior motive: that entire business record of applicant is as an skilled worker, doubtless and honest person; that there is no independent private witness of alleged recovery while the incident occurred on a public place and there is a clear violation of section 103, Cr.P.C.; that since his arrest i.e. 202.02.2015(sic.), applicant is behind the bars and not a single witness could be examined by the prosecution; that co-accused Khalil-ur- Rehman has already been granted bail by the Special Judge, CNS-II, Karachi and as per rule of consistency, applicant is fully entitled for concession of bail. Learned Counsel for the applicant has cited case law reported as 1999 SCMR 1271; 2000 PCr.LJ 747; 2001 SCMR 4; 2003 PCr.LJ 562; 2005 MLD 950; 2007 YLR 3130; 2009 SCMR 954; 2011 SCMR 908; PLJ 202(sic.) Cr.C. (Lahore) 221 (DB); 2008 SCMR 1111; 2012 MLD 1521; 2012 YLR 1206; 2013 YLR 1687; 2012 YLR 2387 and 2013 SCMR 669.
4. Mr. Habib Ahmed, Special Prosecutor, A.N.F. has vehemently opposed the bail plea of applicant and submits that there is no enmity between the complainant and applicant; that a huge quantity of narcotics has been recovered from the consignment of applicant and prima facie he is connected with the commission of offence, as the conscious knowledge of the applicant is yet to be determined at trial after recording of the evidence.
5. I have given due consideration to the submissions made by learned counsel for the parties and perused the record.
6. Perusal of record reflects that a huge quantity of narcotics viz: 20.800 Kgs heroin was recovered from the consignments belong to applicant and 10.200 Kgs. of heroin was sent to the laboratory for chemical examination, which positive report is available on record. The punishment of the offence falls within the prohibitory clause of section 497, Cr.P.C. Further the CNS Act, 1997 consolidates and amends the law relating to narcotic drugs and psychotropic substances. It controls and prohibits the prosecutions, processing and trafficking of these substances. It also lays progressive punishment for narcotic offences. It provides for the constitution of Special Court having exclusive jurisdiction to try narcotic offences. Section 51 of the Act provides that bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating narcotics where the offence is punishable with death. When the quantity of narcotics exceeds one kilogram, the case falls in clause (c) of section 9 of the Act, for witch, death penalty or imprisonment of life has been provided. The direction under section 497, Cr.P.C. can also not be exercised with regard to offences punishable with death or imprisonment for life unless the court at the very outset is satisfied that such a charge appears to be false or groundless.
7. The larger interest of public and State demand that in case of huge recovery of narcotics, the discretion under section 497, Cr.P.C. should not be exercised liberally. Generalizations on matters which rest on discretion and an attempt to discover formula of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are like on facts and therefore, courts have to be allowed to little free play in the joints if the conferment of discretionary power is to be meaningful. However, still the discretion must be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher courts.
8. The apex Court in the case of The State v. Javed Khan (2010 SCMR 1989) has made the following observations in a narcotic case:-
4. Having gone through the above provisions of law, we do not feel persuaded to agree that the case of the petitioner will not fall within prohibitory clause of section 497, Cr.P.C, but it shall be covered by section 9(c), providing for various sentences as reproduced above, which not only squarely fall within prohibitory clause of section 497, Cr.P.C. but also attract the bar contained in section 51(1) of the Act of 1997, specifically made applicable to those offences which, inter alia, provide for punishment of death sentence. For ease of reference, the said provision of law is reproduced as under:-
"51(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."
When the law makers have provided some special provision in the statute to bar the jurisdiction of special Court established under the said enactment, due weight is to be given to such special provision of law a against general principles governing such cases, when accused approaches the Special Court or the High Court for grant of bail, as in the instant case.
5. Looking to the admitted facts of the case of respondent and the above discussed clear legal position, the approach of High Court in releasing the respondent on bail on the above referred ground, seems to be arbitrary, without application of mind and, contrary to settled principles of law, thus unsustainable."
9. Similarly, the learned Single Bench of this Court has observed in the case of Ayaz Pathan v. State (2013 YLR 2560), wherein the learned Bench while dismissing the bail application in a case registered under section 9(c), C.N.S. Act has made the following observations:-
"In this case prosecution witnesses had no any enmity whatsoever with the applicant to foist such a huge quantity of nine kilograms of Charas upon him. Chemical Examiner report regarding recovered Charas was found positive, it is proved that substance recovered from the applicant was Charas; therefore, the prosecution discharged its initial onus while proving that the substance recovered from him was contraband Charas. There is sufficient material available on record which shows that the applicant was found sitting on front seat of the vehicle and he was found responsible for transportation of narcotics. The defence plea propounded by the applicant that the narcotic was not recovered from his possession is not true. Proper reading of the evidence on the record and the factual concluding drawn by the learned trial Court while deciding the earlier bail application are not shown to suffer from any misreading or non-reading of evidence. The alleged offence is heinous one, falling within prohibitory clause. So far as the contention of the learned counsel for the applicant that respectable inhabitants of the locality did not associate as a witness or mashir is not attracting in view of section 25 of the Control of Narcotic Substances Act, 1997. The applicability of section 103, Cr.P.C. has been excluded in the cases of recovery of narcotics."
10. The Hon'ble Superior Court has observed in a number of cases that the deeper appreciation of the record at bail stage cannot be gone into but only it is to be seen as to whether the accused is prima facie connected with the commission of the offence or not. Reference can be made to the cases reported as Mst. Nasreen v. Fayyaz Khan and another (PLD 1991 SC 412), Mian Dad v. The State and another (1992 SCMR 1418), Shah Zaman and 2 others v. The State (PLD 1994 SC 65 relevant page 69-B), Said Akbar and another v. Gul Akabar and another (1996 SCMR 931), Syed Lakhat-e-Hasnain v. The State (2010 SCMR 855), Asif Ayub v. The State (2010 SCMR 1735) and Sohail Waqar alias Sohaila v. The State and others (2017 SCMR 325).
11. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised has to be used with due care and caution. In fact, awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use is the hall mark of a prudent exercise of judicial discretion. One ought not to make it a question of exercise of authority to grant bail in every narcotic case on the ground of 'further inquiry' and 'conscious knowledge' in disregard to the settled principle of law for grant or refusal of bail. Further case of applicant is distinguishable from the case of co-accused who have already been admitted on post-arrest bail, the rule of consistency is not applicable in the present case.
12. So far as the cases cited by learned counsel for the applicant, which are not applicable with the facts and circumstances of the present case and based on different footings.
13. In the light of the above position, discussion and circumstances, I am of the considered view that the applicant has failed to make out his case for bail. Thus, criminal bail application is dismissed accordingly. The observations made hereinabove are tentative in nature, trial Court shall not be influenced by this order and decide the matter on its own merits.
WA/A-99/Sindh Bail refuse