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Petitioner: KHADIM HUSSAIN VS Respondent: StateHonorable Justice Shahid Anwar BajwaHabibullah G. Ghori
2010 Y L R 2297
2010 Y L R 2297
[Karachi]
Before Shahid Anwar Bajwa, J
KHADIM HUSSAIN---Applicant
Versus
THE STATE---Respondent
Criminal Bail Application No.S-481 of 2010, decided on 3rd February, 2010.
Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9---Possessing narcotic---Bail, refusal of---Challan of the case had been submitted---In absence of any document on record, neither it could be agreed nor disagreed with prosecution that it was the accused who was delaying proceedings of the trial---Threshold quantity under S.9(c) of Control of Narcotic Substances Act, 1997 was 1000 grams, whereas quantity recovered in the case was 1500 grams which was 50% more than the threshold quantity---It would not be reasonable to classify 50% as marginally more---Trial Court had rightly observed that provisions of S.103, Cr. P. C. were not attracted to narcotic cases as provided under S.25 of Control of Narcotic Substances Act, 1997---Moreover, when an independent person was not willing to be a witness, it would be difficult to come to the conclusion that he would be eager to disclose his name---As offence against accused fell within the prohibitory degree under S.497, Cr.P.C., bail application of accused was rejected.
Habibullah G. Ghori for Applicant.
Zulfiqar Ali Sangi, Special Prosecutor, A.N.F., Sukkur.
ORDER
SHAHID ANWAR BAJWA, J.---F.I.R. No.2 of 2009 was registered at Police Station A.N.F., Sukkur on 8-5-2009 at 1600 hours for an incident alleged to have occurred at 1315 hours of that date.
The prosecution story is that on receipt of information a police posse reached the spot and from there apprehended the present applicant. From him were recovered 1000 grams of Charas and 500 grams of opium. The entire quantity was sealed for chemical analysis. Since no private person was ready and willing to become witness, two police constables were cited as Mashirs of recovery.
Bail application was filed in the Court of Special Judge for C.N.S., Larkana and was dismissed for the following reasons:--
"The record reveals that applicant/accused was arrested at the spot and 1000 grams Charas as well as 500 grams opium was recovered from his possession in presence of witnesses/Mashirs. The provisions of section 103, Cr.P.C. are not attracted in the Narcotics cases as provided under the provisions of section 25 of the C.N.S. Act, 1997, even otherwise the private persons are avoiding to act as Mashirs in Narcotic cases in order to avoid enmity with the Narcotic dealers, therefore, in my view at this stage, the applicant/accused is not entitled for concession of bail."
Learned counsel for the applicant has submitted that the quantity recovered being 1500 grams is marginally more than the threshold quantity of 1000 grams under section 9(c) of the C.N.S. Act, 1997. He further submitted that although an ANF team came to Larkana, but they failed to intimate any office in Larkana and although the arrest was made within jurisdiction of Police Station Waleed, Larkana, neither any arrival report was made nor any departure entry was made in the station diary of said Police Station. He further submitted that no independent witness was associated. He referred to F.I.R. and stated that although it is stated in the F.I.R. that independent persons refused to become witness, but no such name of independent person has been stated in the F.I.R. He further submitted that place of incident is about 85 kilometers from Sukkur and it is stated in the F.I.R. that information was received at 1305 hours, therefore, it was not humanly possible for the ANF party to reach at Larkana and apprehend the accused at 1315 hours. He submitted that the accused is innocent and has been falsely implicated.
Learned Special Prosecutor submitted that report has been received from Chemical Analysis Laboratory and the same is positive. He submitted that it is not a requirement for ANF Police to inform the concerned Police Station or the concerned District Police authorities before taking any action within the area of jurisdiction of ANF. He further submitted that F.I.R. is clear on that point that ANF police left the Police Station for patrolling duty vide Entry No.4, at 1000 hours and came towards Larkana and when they reached Mirokhan Chowk, Larkana, then at 1305 hours they received information on which they acted. He further submitted that Challan has been submitted on 21-5-2009 and it is accused who is not participating in the trial although the prosecution witnesses are available most of the time.
I have considered the submissions made by the learned counsel and have also gone through the record.
Challan has been submitted on 21-5-2009. Since there is no document on record, I can neither agree nor disagree with the learned Special Prosecutor that it is the accused who is delaying proceedings of the trial.
Contention of Mr. Ghouri is that quantity recovered is marginally more than the threshold quantity. The threshold quantity under section 9(c) is 1000 grams. Quantity recovered in this case is 1500 grams, which is 50% more than the threshold quantity. It would not be reasonable to classify 50% as marginally more. If that is done, where would the buck stop.
As far as association of independent persons is concerned, the trial Court has rightly observed that provisions of section 103, Cr.P.C. are not attracted to narcotic cases as provided under the provisions of section 25 of the C.N.S. Act, 1997. Moreover, when an independent person was not willing to be a witness, it would be difficult to come to the conclusion that he would be eager to disclose his name. The offence falls within the prohibitory degree and, therefore, bail application is rejected.
Before parting with the order, since the Challan has been submitted on 21-5-2009, the trial Court is directed to proceed with the trial with due dispatch.
H.B.T./K-20/K Bail refused.