JALAL FAZAL Versus State

ORDER

ABDUL MOBEEN LAKHO---J .---Applicant Jalal Fazal son of Fazal seeks post arrest bail in a case bearing Crime No. ASO-533 of 2019. Police Station Custom Mochko Chowk, [West] Karachi, registered under Sections 6, 7(1) and 8(A) of the Control of Narcotic Substances Act, 1997 punishable under Section 9(b) ibid.

2. Brief facts as unfolded in the prosecution story as alleged are that:--

"On 6th September, 2019, while the checking of vehicles was in progress at customs Check point at Moachko on RCD Highway jointly by staff of Customs as well as Rangers at par, a passenger bus "Al-Dawood Doubles Glass Youtong Service" (en-route Turbat-Karachi) bearing registration No. BSA-970 was stopped for checking. During checking, a shopping bag kept in the bag / pocket fixed behind the driver seat was suspected. No passenger of the Bus claimed the ownership of said shopping bag. However, the driver of the Bus pointed out one passenger sitting on seat No.5 and told the joint team that this passenger kept the said bag in bag / pocket fixed behind the driver's seat. In the first instance the said passenger Jalal Fazal son of Fazal denied the ownership of the suspected shopping bag, but after some time said passenger accepted the ownership of the said bag. Therefore, cursory search of the said shopping bag was carried out in presence of the musheers namely Sepoy Liaquat Ali and Sepoy Summar who revealed the presence of two lumps wrapped with yellow adhesive upon unwrapping these two lumps some white colour substances were recovered. The claimant of owner of this bag was asked about the substance to which he confirmed that he is carrying Amphetamine (Crystal) in this bag and also told that the said drugs were given to him by one of his friend namely Huda at Turbat and promised to pay him Rs.20,000/- for transporting the said drug from Turbat to Karachi. At this juncture, the Rangers staff who were privy to all the process of search and recovery of contraband Amphetamine (Crystal), took over the possession of recovered contraband goods along with the claimant/owner and its belongings for completion of their own formalities. The passenger and bus was allowed to proceed further. After a while, the Ranger staff handed over the custody of contraband Amphetamine (Crystal) along with its occupant namely Jalal Fazla son of Fazal to the Customs staff at 05:00 p.m., for completion of legal formalities in accordance with law. The contraband Amphetamine (Crystal) with packing/wrapping material and accused namely Jalal Fazal son of Fazal was taken into custody in presence of above named musheers under the cover of mashirnama and shifted to ASO/HQs for detailed examination and further legal formalities under the escort of above named musheers. At ASO/HQ, detailed examination of contraband Amphetamine (Crystal) consisted of two lumps was carried out in presence of above named musheers, and found that One (01) lump wrapped with yellow colour adhesive tape, when unwrapped found packet in white colour cloth bag and then white colour polythene bag, which containing Amphetamine (Crystal), weighing 240 Grams (Net), whereas 2nd Lump was wrapped with yellow colour adhesive when unwrapped found packed in double transparent blue colour Polythene bags, containing Amphetamine (Crystal), weighing 240 Grams (Net). Total weighing 480 Grams (Net). Separate inventory showing recovery of contraband Amphetamine (Crystal) was prepared under the signature of musheers. The contraband Amphetamine (Crystal) so recovered has been seized along with its packing and wrapping materials as explicitly mentioned in column No.4 above for violation of Sections 6, 7(1)(C) and 8(A) of the Control of Narcotic Substances Act, 1997, punishable under Section 9(b) ibid. The (Claimant owner of drugs) namely Jalal Fazal son of Fazal has been arrested accordingly. Three representative samples each of approx. 109 grams Amphetamine (Crystal) were drawn from each lump, sealed and signed by the above named musheers. Notice of arrest has been issued and served upon the accused. Efforts are afoot to arrest the other members of the syndicate involved in this offence"

3. Mr. Noor Hussain Jamali, advocate, representing the applicant/ accused submitted that applicant/accused is innocent and has been falsely booked in the present case with mala fide intention and ulterior motives; that narcotic as alleged has been recovered from back of the Seat No.5 and on pointation of driver the present applicant/accused was apprehended; that the driver of the bus has not been cited as mashir of recovery and arrest; there is no other eye-witness of the venue of occurrence, since a number of passengers were travelling in the bus but Investigation Officer did not bother to cite any independent person from the general public i.e. passengers of the bus to witness the recovery; that any admission before the police is inadmissible under the law as provided under Articles 38 and 39 of Qanun-e-Shahadat Order, 1984; there is eighteen hours of delay in lodging of the FIR and 03 days' delay in sending the contraband to the chemical examiner which report is still awaited. The delay is not plausibly explained; the delay in sending the amphetamine to the chemical examiner is also not explained why it was kept with the Investigation Officer for three days; lastly, the learned counsel argued that the case of the present applicant / accused falls within the domain of section 497(2), Cr.P.C. and prayed that the applicant accused may be enlarged on post arrest bail.

Learned counsel for the applicant/ accused relied upon the case law reported in 2002 SCMR 442 Muhammad Siddique v. Imtiaz Begum and 2 others PLD 2017 Supreme Court 733, 2017 YLR 2308 Raees Khan v. The State.

4. Ms. Firdous Faridi, Special Prosecutor ANF submitted that applicant/ accused has rightly been booked in the present case with specific role; the recovery was effected on his pointation; huge quantity of amphetamine of narcotic has been recovered from the applicant/accused: that there is sufficient material available with the prosecution to connect the applicant/accused with the commission of the offence; the offence committed by the applicant/accused falls within the domain of prohibitory clause of section 497(1), Cr.P.C.; lastly learned special prosecutor opposed the grant of post arrest bail; and prayed that the bail plea of the applicant/accused may be dismissed in the circumstances.

Learned Special Prosecutor relied upon the case law reported in 2015 SCMR 1077 Socha Gul v. The State, 2005 PCr.LJ 428 Luqman Raji Adewunmi v. The State.

5. Heard the learned counsel for the applicant/accused and the learned special Prosecutor ANF.

6. I have considered the respective contentions raised above. Admittedly there is inordinate delay of eighteen hours in lodging of the FIR which is unexplained by the prosecution; and the delay of two days in sending the illicit contraband to the chemical laboratory for examination; making the safe custody and transmission to the chemical examiner doubtful. Be that as it may, the complainant also did not choose to cite the Driver and Conductor of the bus to act witness of the recovery especially when the accused was pointed out by the driver to be the owner of the crystalline amphetamine; astonishing to note herein: that, the alleged bus from which the alleged contraband was recovered was not taken into custody. All these dents would ultimately lead the case of present applicant/accused fall within the domain of further inquiry as provided (under section 497(2), Cr.P.C.

I am fortified with the case law reported in 2019 SCMR 1651 Husain Ullah v. State and another, it has been held as follows:-

"After hearing the learned counsel for the petitioner, learned Law Officer and perusal of available record, it has been observed by us that when the petitioner was arrested by police, he was not driving the car nor any narcotic was recovered from his exclusive possession rather he was sitting on the rear seat of the car. Learned Law Officer has confirmed under instructions of the police office present in Court that there is nothing on the record to connect the petitioner with the car. In these circumstances, the case of the petitioner becomes one of further inquiry falling within the ambit of section 497 Code of Criminal Procedure. He is behind the bars since 16.03.2017 and nothing is to be recovered from him. In this backdrop, no useful purpose shall be served by keeping him incarcerated for an indefinite period"

I am also fortified with the case law reported in 2017 YLR 2308 which lays down as follows:-

"---497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(b)---Prosecution of narcotic drugs etc.---Bail, grant of---Further inquiry---Accused was apprehended at the Airport and allegedly twelve polythene packets containing 580 grams crystalline amphetamine were recovered from his suit-case during scanning the baggage---Recovered packets were not weighed separately---Lodging the FIR prior to preparation of recovery and arrest was deviation from prescribed procedure and violation of principles of administration of criminal justice, which had created doubt about sealing and weighing of recovered narcotic substance---Challan had been submitted before the Trial Court and during period of more than five months charge had not been framed---No probability of early commence-ment of trial existed---Witnesses were government officials, hence there was no apprehension of tampering with prosecution evidence---Alleged offence was punishable up-to seven years which did not fall within ambit of restraining clause of S. 497(2), Cr.P.C.---Accused had succeeded to make out case for grant of post-arrest bail on the ground of further inquiry as contemplated under S. 497(2), Cr.P.C"

Thus this kind of investigation usually led case of the prosecution dubious: However, Applicant/accused had successfully established a case which calls for further probe into his guilt as provided in the limb of section 497(2), Cr.P.C.

7. These are the reasons of short order dated 05-11-2019 whereby applicant/accused was enlarged on post arrest bail in the sum of Rs.200,000/- [Rupees Two Hundred Thousand] only and P.R. Bond in the like amount to the satisfaction of learned Trial Court.

Note:-The observations made hereinabove are tentative in nature and shall not cause any prejudice to the case of either side at trial.

ADN/J-1/Sindh Bail allowed.