2012 M L D 1713
[Sindh]
Before Muhammad Tasnim, J
ABDUL NAEEM---Applicant
Versus
THE STATE---Respondent
Criminal Bail Application No. 625 of 2011, decided on 17th June,
2011.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Bail---Assessment of
evidence---Principle---Deeper appreciation of the material on record cannot be
made at bail stage, but only tentative appreciation thereof is to be made just
to find out the prima facie connection of accused with the commission of the
offence.
(b) Criminal Procedure Code (V
of 1898)---
----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997),
S.9(b)---Bail, grant of---Prosecution had associated some private person as
witness during the entire process of apprehending the accused and recovering
from him the alleged heroin---First memo of arrest had been prepared at the
spot without joining any private witness though available and the second memo
was prepared after the recovery of capsules containing heroin from the accused
four days thereafter without any plausible explanation for such
delay---Discrepancy was found in the weight of recovered heroin---According to
the challan 780 grams heroin had been recovered, whereas the report of Chemical
Examiner showed that recovered substance was 665 grams---Guilt of accused,
thus, needed further probe in terms of S.497(2), Cr.P.C.---Case against accused
did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused was
admitted to bail in circumstances.
Ghulam Murtaza and another v. The State PLD 2009 Lah. 363; Waheed Raza v.
The State 2011 YLR 2760; Muhammad Shahid v. The State 2009 YLR 167; Akhtar Jan
v. State 2009 YLR 45; Asghar Ali v. The State 2009 PCr.LJ 660; Ghafoor Ahmed v.
The State 2009 YLR 123; Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC
590 and Nawaz v. The State 2004 YLR 1118 ref.
(c) Control of Narcotic Substances Act (XXV of 1997)---
----S. 25---Criminal Procedure Code (V of 1898), S.103---Exclusion of applicability of S.103,
Cr.P.C.---Scope---Though private persons are required to witness the recovery
of narcotic substance as provided under S.25 of the Control of Narcotic
Substances Act, 1997, yet the place of recovery and the time of recovery have
to be kept in view to prevent false implication of innocent people, looking to
the general conduct of police.
Nawaz v. The State 2004 YLR 1118 ref.
(d) Criminal Procedure Code (V of 1898)---
----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997),
S.9(b)---Bail, grant of---Further inquiry---Non-association of respectable
persons of the locality in recovery proceedings---Effect---Despite earlier
information respectable persons of the locality were not associated in recovery
proceedings carried out against the accused---Held, allegations against accused
needed further enquiry---Bail was granted.
Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590 rel.
Nasir Mehmood for Applicant.
Hussain Bux Baloch, Special Prosecutor A.N.F. for the State.
ORDER
MUHAMMAD TASNIM, J.---Applicant is booked in Crime No.8 of 2011,
under section 6/9(b) of the Control of Narcotic Substances Act, 1997, Police
Station A.N.F Clifton.
2. The case
of prosecution, as
setout in the
F.I.R., is that
on 16-1-2011 complainant S.I Khalid
Rasheed of Police Station A.N.E Clifton Karachi received spy information that
one person namely Abdul Naeem son of Abdul Hakeem concealed heroin filled
capsules in his body would go to Malaysia by Flight No.PK-896 and on
instruction of highups the complainant along with HC Muhammad Nasir Khan, PC
Zafar Iqbal and other A.N.F officials were proceeded from Police Station at
1230 hours vide Entry No.25 and met with spy at the outside International
Departure Lounge, JIAP, at 0130 hours, the spy pointed one person who had
trolley bag and going towards departure lounge and stated that he is Abdul
Naeem, the said person was apprehended and inquired his name, he disclosed his
name as Abdul Naeem son of Abdul Hakeem when asked regarding heroin capsules he
admitted that he has concealed heroin capsules in his stomach, his Passport,
Air Ticket, cash amount, CNIC, mobile phone were taken into custody and
accordingly arrested. Memo of arrest was prepared on the spot and taken to
Nihal Hospital and obtain his x-ray which confirmed that he has concealed
heroin capsules in
his stomach therefore
the arrested accused
was taken to Jinnah Hospital,
Karachi and admitted in Ward No.5 where on 17-1-2011 the accused taken out 96
heroin filled capsules from his stomach weighing 780 grams (gross), the
recovered heroin capsules were sealed on the spot and sent for chemical
examination.
3. Learned counsel appearing
on behalf of the applicant/accused submits that as many as two memos were
prepared by the prosecution, first with regard to the arrest and second with
regard to the alleged recovery of capsules containing heroin but in both the
memos no private person was associated as witness. He further submits that one
memo was prepared at Jinnah
Hospital
4. In support of his
contention learned counsel for the applicant/accused has relied upon a Full
Bench Judgment of the Lahore High Court in the case of Ghulam Murtaza and
another v. The State (PLD 2009 Lahore
363), Waheed Raza v. The State (2011 YLR 2760), Muhammad Shahid v. The State
(2009 YLR 167), Akhtar Jan v. State 2009 YLR 45, Asghar Ali v. The State (2009
PCr.LJ 660), Ghafoor Ahmed v. The State (2009 YLR 123), Hakim Mumtaz Ahmed and
another v. The State (PLD 2002 SC 590) and Nawaz v. The State (2004 YLR 1118).
Learned counsel submits that no doubt law provides maximum punishment of seven
years in a case where upto 1000 grams of heroin was allegedly recovered, but in
view of the Judgment of Full Bench of Lahore High Court in the case of Ghulam
Murtaza (supra) as per schedule of punishment comes to one year and ten months.
Learned counsel further submits that there is discrepancy in weight of heroin
allegedly recovered from the present applicant as stated above which creates
doubt in the prosecution case and benefit of such doubt be extended to the
applicant/accused and he may be enlarged on bail.
5. Conversely, learned
Special Prosecutor appearing on behalf of the A.N.F. submits that the
involvement of applicant/accused is supported by the statement made by the
witness. He further submits that 96 capsules of heroin were recovered from the
stomach of the applicant/ accused which weight about 780 grams and the maximum
punishment in the circumstances would be seven years. He further contends that
in terms of section 25 of the CNS Act, it is not necessary that some private
person is to be associated as witness at the time when memos of arrest and
recovery were prepared.
6. I have heard the learned
counsel for the parties and perused the record of this case as well as
case-laws cited at bar.
7. It is well-settled
principle of law that at bail stage deeper appreciation of the record cannot be
gone into but only tentative assessment is to be made just to find out as to
whether the present applicant/accused is prima facie connected with the
commission of the offence or not. Keeping in view the above settled principle
and the judgment of the Hon'ble Supreme Court of Pakistan in the case of HAKIM
MUMTAZ AHMED AND OTHERS V. THE STATE (PLD 2002 SC 590) in mind, the prosecution
must have associated some private person as witness during the entire process
of apprehending and recovering the alleged heroin. It is an admitted position
that first memo of arrest was prepared at the spot but no private person was
associated as witness. Even no official of Airport Security Staff was cited as
witness though Airport Security Staff is always available at the airport and
they are in uniform, such official should not have refused to act as witness.
The second memo was
prepared after the
recovery of capsules
on 17-1-2011 after about
four-days delay of the arrest of the applicant/ accused. No plausible
explanation has been furnished by the prosecution. There is also discrepancy in
weight, as according to the challan, recovery has been shown as 780 grams,
whereas Chemical Examiner's report reflects that recovered substance is 665
grams, even otherwise, in view of the judgment of Full Bench of the Lahore High
Court as referred above, maximum punishment for the alleged recovered heroin
would be one year and 10 months which does not fall within the prohibitory clause.
8. In the case of Nawaz v.
State (2004 YLR 1118) cited by the learned counsel for applicant/accused a
learned Division Bench of this Court with regard to citing private witness at
the time of recovery has observed as under:--
"Though private persons are not required to witness the recovery of
Narcotics Substance as provided under C.N.S. Act yet the place of recovery and
the time of recovery has to be kept in view to prevent false implication of
innocent people, looking to the general conduct of police. The maximum
punishment provided for the alleged offence is 7 years which does not fall
within the prohibitory clause contained under
section 497, Cr.P.C. The accused is behind bars since last four months. Keeping
in view the peculiar circum-stances of
the case we are inclined to grant bail to the applicant."
9. The above judgment is
fully applicable to present case as maximum punishment is seven-years, which
does not fall within the prohibitory clause. In the present case as well no
private witness was associated at the time of alleged recovery. From the
perusal of the F.I.R. and Chemical Examiner's report it appears that there is
discrepancy in weight of heroin recovered. The discrepancy in weight of heroin
creates doubt with regard to the alleged recovery.
10. In the case of Hakim
Mumtaz Ahmed (supra) the Hon'ble Supreme Court of Pakistan has held as under:--
"Despite earlier information respectable persons of the locality
were not associated in recovery proceedings carried out against the accused.
Allegations against accused, thus, needed further enquiry."
11. In this view of the
matter, I find that the case of the prosecution requires further enquiry in
terms of subsection (2) of section 497, Cr.P.C. Accordingly, I admit the
applicant/accused on bail subject to furnishing surety in the sum of Rs.100,000
(Rupees One Lac only) with P.R. bond in the like amount to the satisfaction of
the trial Court.
12. The observations made
herein above are tentative in nature and shall not affect the merits of the
case triable by the trial Court.
13. This bail application
stands disposed of in the above terms.
NHQ/A-89/K Bail
granted.
Good effert My dear Brother
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