FAZAL AHMED vs THE STATE
This bail application was filed by the applicant who was sent up for trial before the Court of Special Judge (Narcotics) Karachi West following the alleged recovery of 12 kg of opium. The applicant's bail plea had been rejected by the trial court. The applicant's counsel sought bail on multiple grounds, including lack of territorial jurisdiction of the investigating police station, non-compliance with the statutory requirement of associating local witnesses under Section 103 of the Code of Criminal Procedure 1898, affidavits asserting the applicant was arrested two days prior to the date recorded in the First Information Report, and a plea of alibi. Additionally, the applicant argued that Section 51(1) of the Control of Narcotic Substances Act 1997 does not impose an absolute bar on the High Court's jurisdiction to grant bail. The High Court, referencing Supreme Court precedent, observed that Section 51(1) of the Control of Narcotic Substances Act 1997 bars bail if a charge has been framed for an offence punishable with death, or if sufficient material exists to frame such a charge prior to the actual framing of the charge.
- Does Section 51(1) of the Control of Narcotic Substances Act 1997 impose an absolute bar on the grant of bail by the High Court?
- What is the evidentiary threshold required to attract the statutory bar against bail under Section 51(1) of the Control of Narcotic Substances Act 1997 before a formal charge is framed by the trial court?
- Can non-compliance with Section 103 of the Code of Criminal Procedure 1898 regarding local witnesses be a ground for bail in a narcotics recovery case?
- Section 103, Code of Criminal Procedure 1898
- Section 51(1), Control of Narcotic Substances Act 1997
ORDER
1. The applicant has been sent up for trial before the Court of Special Judge (Narcotics) Karachi West on the allegation of recovery of 12 kg. Opium from him. Bail plea of the applicant has been rejected by the trial Court and, therefore, the present application has been filed.
2. Mr. Abdul Mujeeb Pirzada, learned counsel for the applicant, has mentioned various grounds to seek bail for the applicant. They include that the police station that made the investigation and allegedly recovered the opium had no jurisdiction since the recovery was made from a place beyond the jurisdiction of that police station; compliance with the requirement of section 103, Criminal Procedure Code has not been made and no person from the locality was made a witness to the recovery; that some persons have filed affidavits to prove that the applicant was arrested two days before the date of arrest and recovery mentioned in the F.I.R.; that section 51(l) of the Control of Narcotics Substances Act is not a total bar and the High Court has jurisdiction to grant bail notwithstanding that provision and, finally, a plea of alibi.
3. On the point regarding bar of section 51(1) of Control of Narcotics Substances Act, the learned counsel for the applicant relied on the case of Gul Hassan Dero v. The State 2000 PCr.LJ 657.
4. Mr. Shoaib Ashraf, the learned Special Public Prosecutor for Anti-Narcotics Force, has replied to the contentions made, by Mr. Pirzada and both the learned counsel have referred to a number of authorities on these points.
5. On the point of bar under section 51(1) of Control of Narcotic Substances Act Mr. Shoaib Ashraf relied on the case of Mehboob-ur-Rehman v The State 2000 PCr.LJ 569.
6. 1999 SCMR 1271 and unreported judgment of the Supreme Court in Criminal Petition No.53-K of 1998 State v. Mubeen Khan, held that section 51(1) of Control of Narcotics Substances Act provided a bar to grant of bail to an accused if the trial Court has framed a charge against him for an offence relating to narcotics punishable with death or, till the stage before a charge had been framed by the trial Court, if sufficient material is available for framing such a charge, more than mere allegation in the F.I.R.