ABDUR REHMAN MUBARAK vs THE STATE

ORDER

1. ' The applicant seeks bail in a case under various sections of Control of Narcotic Substances Act, 1977, (F.I.R. No,1 of 1999), Police Station A.N.F., Clifton, Karachi), pending trial before the Court of learned Sessions/Special Judge, Karachi (South).

2. ' The prosecution case briefly stated is that complainant Sub-Inspector, Sajjad Ali, received spy information' that some persons were to come to Lucky Star Chowk in a white coloured Suzuki Mehran Car, carrying heroin powder with them. The complainant under the supervision of Capt.

3. Asadullah formed a raiding party and reached the spotted Chowk. It is alleged that at 9-25 a.m complainant party saw white colour Mehran car coming from Shahrah-e-Faisal. They signalled the car to stop and when the car stopped they found three persons sitting inside the car. On enquiry they disclosed their names as Arif Khurshid, Muhammad Rafique and Abdul Rahman Mubarak (the present applicant). It is alleged that the applicant was holding a shopping bag in his hand which he tried to conceal under the seat of the car. The complainant party arrested the abovenamed accused, secured the shopping bag and prepared such Mashirnama. The shopping bag was found containing heroin power which on weighing was found to be 1 Kg. The accused and the property were thereafter taken to the police station where the F.I.R. Was lodged.

4. ' The police after conclusion of the investigation submitted challan against all the. Three accused named in the F.I.R. The bail having been refused to the applicant by the learned trial Court, the applicant has approached this Court for the same relief.

5. ' It has been contended on behalf of the applicant that co-accused Arif Khurshid and Muhammad Rafique have been granted bail by the trial Court. The case of the applicant being at par with the case of the co-accused, the applicant ought to have been allowed bail under the rule of consistency. It was further argued that there is violation of section 103, Cr.P.C. As the Mashirs of recovery are the subordinate employees of the complainant party and no independent public man was associated to act as a witness to the recovery, though the place of recovery is a thickly populated area and at the relevant time there must have been many people available. It was lastly argued that the offence against the applicant would fall under section 9(b) of Control of Narcotic Substances Act, 1997 which prescribes punishment upto 7 years only and that the offence does not fall within the prohibitory clause contained in section 497 (1), Cr.P.C. It was further urged that section 51(2) of the Act would be no bar to release a person/accused of an offence under this Act, on bail.

6. ' On the other hand, Mr. Shoaib M. Ashraf, Special Prosecutor, A.N.F., for the State, has vehemently opposed the grant of bail to the applicant on the ground that the, applicant is a habitual offender and that he is a foreigner and a Kenyan national. The alleged quantity of narcotics was secured from the possession of the applicant and it cannot be said that he was merely a passenger or a traveller in the car having no knowledge about the possession/transportation-of the above said narcotic substance. Learned State Counsel further argued that the provisions of section 51(2) read with section 76 of the Act have an overriding effect upon the provisions of section 497, Cr.P.C. While relying upon sections 73 and 74 of the Act, he has further argued that the applicant is liable to be punished under section 3/4 of the Prohibition Order which provides punishment of imprisonment for life.

7. The narcotic substance, i,e, Heroin powder, was allegedly secured from the physical possession of the applicant only, therefore, the case of the A applicant cannot be considered to be at par with the case of co-accused and thus rule of consistency will not apply. As far violation of section 103, Cr.P.C. Is concerned, section 25 of the Control of Narcotics Substances Act, 1997 excludes the application of this provision of Cr.P.C. Even otherwise, in view of the principle laid down in the case State v. Muhammad Amin 1999 SCM R 1367 the provisions of section 103, Cr.P.C. Would not apply if the recovery is made on a highway or road sides. So also this provision, under the settled law would not be applicable to recovery made from a running vehicle.

8. ' Mere fact that an offence is punishable upto 7 years only and does not fall within the prohibitory clause attached to section 497 Cr.P.C, would not entitle an accused person to be released on bail without taking into consideration other relevant factors of the case, particularly in the offences punishable under the Control of Narcotic Substances Act, 1997, section 51(2) of Control of Narcotic Substances Act, 1997, enunciates that "bail in offences punishable under the Act shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail".

9. ' For the above stated reasons, we are of the considered opinion that this is not a fit case for the grant of bail and, therefore, dismiss the application.