FAZAL-UR-REHMAN Versus State
ORDER
MRS. RASHIDA ASAD, J.--- Through this bail application, the applicant Fazal-ur-Rehman seeks post arrest bail in FIR/Crime No. 590 of 2015 under sections 6/9(c) of the Control of Narcotic Substances Act, 1997 registered at P.S. SITE-A, Karachi. His earlier application for grant of bail bearing No. 334 of 2016 was heard and dismissed by the learned Special Court No.1 (C.N.S.), Karachi vide order dated 09.09.2016.
2. Facts of the prosecution case are that on 28.10.2015, at 0130 hours, Complainant S.I.P. Khan Nawaz of P.S. SITE-A, lodged aforementioned FIR on behalf of the State stating therein that on 28.10.2015 he along with his subordinate staff and official of water board was patrolling to take action against illegal water connection and about 2330 hours, he reached in the compound of plot No. D- 45 near Salika Sewing Machine, SITE where a room was constructed and inside thereof they found 44.4 kg Charas enwrapped in 42 packets (yellow colour solution tape) having different inscriptions with marker. Out of them 18 packets were marked as MS 21, 9 packets as AB-20 and 15 packets as SK-10. He arrested the Chowkidar present there, who disclosed his name as Fazal ur Rehman son of Shams ur Rehman. On inquiry he disclosed that he had two more companions, (Chowkidars/watchmen) namely Shakir Khan son of Akhter Muneer, and Rahim Khan son of Akhtar Muneer, who made their escape good from the spot, while the owner of said compound was Faiz Muhammad alias Faizo son of Abdul Sattar. The accused committed the offence punishable under sections 6/9(c), Control of Narcotic Substances Act. The recovered charas was sealed on the spot and such memo was also prepared. The accused along with recovered stuff was brought at P.S. where FIR was lodged accordingly.
3. Heard Ms. Sana Saleem, learned counsel for the applicant/ accused, Ms. Rubina Qadeer, learned Deputy Prosecutor General and perused the material available on the record.
4. Learned counsel for the applicant/ accused has submitted that the applicant is innocent and has been falsely implicated in this case by the complainant with mala fide intention; that the applicant has been arrested from a populated area and no private person has been cited as witness which is clear violation of section 103, Cr.P.C.; that no recovery has been effected from the possession of the applicant; that the co-accused Faiz Muhammad alias Faizo has been granted bail by the learned trial Court, therefore, on the doctrine of consistency the applicant is also entitled for the grant of bail. In support of her contention, she placed reliance on unreported judgment passed by Hon'ble Supreme Court of Pakistan in Criminal Petition No. 1232/2016, unreported judgment passed by the Peshawar High Court in Criminal Misc. B.A. No. 1382-P/2015. 2014 MLD 723, 2014 YLR 188, PLD 2009 Karachi 191, 2010 SCMR 841, 2011 SCMR 1194, PLD 1995 SC 34, 2011 PCr.LJ 1200, 2011 YLR 1848 and 2019 PCr.LJ 54.
5. On the other hand, learned Deputy Prosecutor General has vehemently opposed the bail application while submitting that the applicant was apprehended on the spot with huge quantity of contraband Charas and thus the learned trial court has rightly declined bail to him. She has pointed out that report furnished by learned Judge Special Court-I, Narcotics clearly shows that delay in conclusion of trial is caused on the act and omission of accused as the case is pending for defence evidence. Thus, his bail application may be dismissed. She relied upon 2002 SCMR 1381, 2015 SCMR 1077, 2011 SCMR 170, 2011 MLD 40, 2004 PCr.LJ 713, 2017 PCr.LJ 1012, 2016 SCMR 1528 and Criminal Appeal No.3-K/2019.
6. I have considered the submissions raised by the learned counsel for the applicant/accused, learned DPG for the State, perused the record and the case-law cited by them at the Bar.
7. A report was called from the learned trial Court wherein it has been submitted that the matter is pending for evidence of defence witness since 27.08.2019.
8. In this case the accused has been 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 the narcotic drug, psychotropic substance or controlled substance exceeds one hundred gram but does not exceed one kilogram;
(c) Death, or imprisonment for life, or imprisonment for a term which may extent to fourteen years, and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotics 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.
9. It is a case of recovery of huge quantity of Charas weighing more than 44 Kilo grams. The case of the applicant/accused fall under the Prohibitory clause of section 51 of the C.N.S. Act, 1997, which deals with restrictions for grant of bail in respect of certain offences. It is divided in two parts, under one part, accused whether male or female is not entitled to be released on bail, if he or she involves in an offence punishable with death, hence provision of sections 496 and 497, Cr.P.C. have been specifically excluded. Further the plea of the applicant/ accused in respect of violation of section 103, Cr.P.C. is concerned, it has been held by the Hon'ble Supreme Court of Pakistan in a case reported in 2009 SCMR 306 and 2011 PCr.LJ 398 that section 25 of the C.N.S. Act, 1997 excluded the applicability of section 103, Cr.P.C. in Narcotic cases.
10. It is pertinent to mention here that no previous acquaintance nor any ill will or grudge has been alleged by the applicant/accused against the police for involving him in this case of recovery of heavy quantity of charas.
11. Tentative assessment of the material available on the record shows that the applicant/accused is not entitled for the concession of bail on the ground that the recovery has been effected from his possession with his specific role, his name is mentioned in the FIR. As regards the rule of consistency, the case of the applicant/accused is on different footing as that of co-accused Faiz Muhammad alias Faizo. It may also be observed that trial is likely to be concluded without further delay as it is fixed before the trial Court for recording of defence evidence, therefore, the bail application is dismissed. The case laws cited by the learned counsel for the applicant/accused are not applicable in this case. Learned trial Court is, however, directed to conclude the trial expeditiously and preferably within a period of one month from today.
12. Above are the reasons of my short order dated 11.09.2019, whereby the instant criminal bail application was dismissed.
SA/F-24/Sindh Bail declined.