ALI SHER Versus State
ORDER
KHADIM HUSSAIN M. SHAIKH, J .---Through the captioned bail application, applicant Ali Sher Son of Haibat Khan seeks his release on bail in Special Case No. 301 of 2019, registered at Police Station Pinyari District Hyderabad, for offence under section 9(c) C.N.S. Act, 1997 after his bail plea has been declined by the learned Sessions/ Special Judge (CNS), Hyderabad by dismissing his bail application vide order dated 18.11.2019.
2. Briefly the facts of the case are that the applicant, who was allegedly found in possession five (05) Kilograms Chars, was apprehended at Liaquat bridge Noorani Basti Hyderabad. The recovered substance was sealed at the spot and such mashirnama of recovery and arrest was prepared in presence of mashirs namely PC Nazeer Ahmed and PC Abid Hussain. Then the recovered substance and the applicant were brought at Police Station Pinyari Hyderabad, where the subject FIR was lodged against the applicant on behalf of the State. After completing the investigation, the applicant was sent-up with the challan. The bail application moved by the applicant has been dismissed by the learned Sessions/ Special Judge (CNS). Hyderabad vide order dated 18.11.2019, hence this bail application.
3. The learned counsel for the applicant has mainly contended that the applicant has been falsely implicated in the subject case by foisting upon him the alleged contraband Chars, on account of the application moved by the applicant's father against the police for illegal confinement of the applicant; that there was delay of six (06) days in sending the sample to the chemical examiner; and, that no independent person was cited as mashir as all the PWs are police personnel. Learned counsel placing his reliance on the case of 2008 YLR 1575 [Karachi] Khalilur Rehman v. The State 2006 MLD 1961 [Karachi] Imtiaz Ali v. The State and PLD 2001 Karachi 152 Nasrullah v. The State, prays that the applicant may be enlarged on bail.
4. The learned Assistant Prosecutor General, has mainly contended that a huge quantity of five (05) Kilograms of Chars was recovered from the possession of the applicant; that entire substance was sent to the chemical examiner, and the report is positive; that there is no enmity of Police of Police Station Pinyari against the applicant: that before sending the recovered substance to the Chemical Examiner it was kept in safe custody in Malkhana; and, that the provisions of section 103, Cr.P.C. are not applicable to the cases under the provisions of Control of Narcotic Substances Act, 1997. Learned Assistant Prosecutor General, prays for dismissal of the instant bail application.
5. I have considered the submissions of the learned counsel for the applicant and learned Assistant Prosecutor General, and have gone through the material brought on the record and the police file with the assistance of learned A.P.G.
6. A huge quantity of five (05) Kilograms Chars is alleged to have been recovered from the possession of the applicant, which was sealed on the spot; the entire substance recovered from the applicant was sent to the Chemical Examiner for its analysis; the report whereof is positive; the applicant's father Haibat Khan is shown to have moved Criminal Miscellaneous Application No.82 of 2019, complaining against the illegal confinement of his son Shakeel Ahmed (not applicant Ali Sher) by CIA Police at CIA Office Jamshoro, before the learned Sessions Judge Jamshoro and in pursuance of order dated 24.06.2019 of the learned Sessions Judge, Jamshoro, the Civil Judge and Judicial Magistrate-I Kotri, conducted raid at CIA Centre Jamshoro, but Shakeel Ahmed was not found detained there, resultantly the application moved by Haibat Khan was dismissed vide order dated 27.06.2019, as is reflected from the certified copies of the application, raid report and order dated 27.06.2019, annexed with this bail application as annexures-D-1, D-2 and D-3, available at pages-41-48; no animosity or ill-will is alleged against complainant A.S.I. Mehmood Ali Mughal and/or other officials of Police Station Pinyari Hyderabad; mere sending recovered substance to the chemical examiner with some delay would hardly be a ground for grant of bail; there is sufficient material available against the applicant for his involvement in the subject case involving the recovery of five (05) Kilograms Chars, falling within the prohibitory clause of section 497, Cr.P.C. It needs no reiteration that at the bail stage, deeper appreciation of the evidence is not permissible and only tentative assessment of the material collected during the investigation is to be made. Reliance in this context is placed on the case of Socha Gul v. The State 2015 SCMR 1077, which involved recovery of 4 kilograms Chars, wherein the Hon'ble Supreme Court of Pakistan has held that:
"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 kilograms. 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 Dolat Khan v. The State and others 2016 SCMR 1447, the Hon'ble Supreme Court of Pakistan dismissed the petition of the petitioner seeking his release on post arrest bail involving recovery of 2400 grams of Chars and 1200 Grams opium. The case law cited by the learned counsel for the applicant is not applicable to the case one in hand, as none of the cited cases involved the facts and circumstances as are involved in the instant case.
7. In view of what has been stated above, I am of the considered view that the applicant has failed to make out his case for grant of concession of bail, therefore, this bail application being devoid of merit is liable to be dismissed. These are the reasons of short order announced by me on 10.02.2020, whereby this bail application was dismissed.
8. The observations made hereinabove are tentative in nature only for the purpose of deciding this bail application, which shall not influence the learned Trial Court at the time of final decision of the subject case.
SA/A-132/Sindh Bail declined.