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Official Citation: 2025 SHC 41
Court / Jurisdiction: Sindh High Court
Petitioner: Cr.Bail 41/2025 (S.B.) Sindh High Court, Circuit at Hyderabad - Ali Ahmed & another (Applicant)
Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as 2025 SHC 41. In this matter between Cr.Bail 41/2025 (S.B.) Sindh High Court, Circuit at Hyderabad - Ali Ahmed & another (Applicant) and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Sindh High Court CASE NO: Cr.Bail 41/2025 (S.B.) Sindh High Court, Circuit at Hyderabad CITATION: 2025 SHC HYD 212 PARTIES: Ali Ahmed & another (Applicant) ORDER DATE: 27-JAN-25 BENCH: Hon'ble Mr. Justice Amjad Ali Sahito(Author) A.F.R: Yes ------------------------------------------------------------ IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD.
Criminal Bail Application No.S - 41 of 2025
Applicant s
:
Ali Ahmed and Riaz Siyal present on interim pre - arrest bail through Mian Taj Muhammad Keerio, Advocate.
Respondent
:
The State th rough Mr. Shahid Ahmed Shaikh, A.P.G. Sindh
along with
SIP Hamid Ali Otho SHO Jhok Shareef.
Date of hearing
:
2 7 .0 1 .202 5
Date of Order
:
2 7 .0 1 .202 5
O R D E R.
Amjad Ali Sahito, J: -
Through instant bail application, the applicant s /accused namely, Al i Ahmed and Riaz Siyal
seek
post - arrest bail in Crime No. 122 /202 3
for the offence under section 9(1) (3) ( D )
of CNS Act, 2022
registered at Police Station B - Section , Tando Muhammad Khan . Earlier the bail plea of the applicant s /accused was declined by the l earned Sessions Judge/Special Judge for C.N.S.A.
Tando Muhammad Khan
vide order dated 29 . 1 1 .2024 .
2 .
Background of the case is that o n 18.11. 2023, between 12:00 PM and 3:00 PM, a police team from PS B - Section Tando Muhammad Khan, led by SIP Liaquat Ali Gopang , conducted vehicle
check ing
at Check Post Shaheed Baba. During che cking, a Blue Mazda bearing No. JZ - 8708
was inspected, and while one person fled, two others were apprehended: Ali Ahmed Siyal (driver) and Riaz Siyal. They identified the third person, Muha mmad Sarwar Punjabi, as an absconder. The vehicle contained 40 sacks, each weighing 40 kg, filled with brown cotton boxes containing bhang. Total 1600 kg of bhang was recovered. Samples
i.e. 500 grams from each sack
we re sealed for chemical analysis
and th e remaini ng bhang was stored. The memo of arrest
and recovery was prepared. Hence, instant case was registered.
3 .
After registration of the case, the Station House Officer submitted a report under section 173 Cr.P.C. to the Special Judge for CNS/MCTC, Tando Muhammad Khan. However, the Special Judge determined that the crime did not fall under the Control of Narcotics Substance Act, 1997, and held that it comes
under the Prohibition (Enforcement of Hadd) Order, 1979. As a result, the
learned J udge returned the
report to the SHO to
be submitted to the concerned
Judicial Magistrate, as the case was exclusively triable by a Magistrate Court .
4 .
Learned counsel for the applicants has contended that since no case under the Control of Narcotic Substances Act was establi shed, as such, the FIR was converted under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and referred to the Civil Judge and Judicial Magistrate - III,
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Tando Muhammad Khan, who
took cognizance of the offense under the orders of learn ed Special Judge, Tando Muhammad Khan vide order dated 08.12.2023.
The applicants then applied for post - arrest bail, which was granted. However, when the case was fixed
for evidence, the ADPP for the State pointed out
that the case comes
under the Control of Narcotics Substances Act due to an amendment that included " BHANG " ,
" SIDDHI "
and " GANJA "
in the definition of narcotics and t hat the alleged recovered property exceeded 20,000 grams, the punishment could be upto life imprisonment with a fine
but shall n ot be less than 14 years with a fine ; hence , the
learned Magistrate referred the case to the Sessions Court under section 347 Cr.P.C./want of jurisdiction . The learned counsel has further contended that the ADPP
instead to point out so, he should have chal lenged the order passed
by the Special Judge on 08.12. 2023, before
this Court , as that order still remained in field .
He further contended that even there is no application moved by the learned AD PP or Investigating Officer
of the case in this regard.
He h as further contended that since after referring
the case to the Court of Learned Special Judge, the applicants had apprehension that they may not be taken into custody, as such, bail application was filed, but which was dismissed without considering that t hey were already on bail granted by
learned Magistrate.
Learned counsel further contended that since the applicants/accused have been admitted to post arrest bail and they have not
misused the concession of bail
even show cause notice was not issued by the
learned Magistrate to the accused persons that why
not
their bail already granted to them shall be recalled , as such, on jurisdiction al point between two Courts , the applicants
may not
suffer
and in fact no bhang was recovered from the m but
they were book ed falsely . He, therefore, prayed that the interim pre - arrest bail granted to the applicants may be confirmed.
5 .
On the other hand, t he learned A.P.G. for Sindh has contended that the case involves a jurisdictional issue related to the recovery specifically whether it falls under special or ordinary law. He further contended that initially the learned Special Judge ordered
on the report under section 173 Cr.P.C. that
the case is falling
under the Prohibition (E nforcement of Hadd) Order, 1979; h owever, after h aving look at an amendment
in the CNS Act , the learned Magistrate referred the case with opinion on the pointaiton of learned ADPP that the case falls under CNS amended Act and its
Court is incompetent to try the case, as such, the jurisdiction lie s
with t he Sessions Judge/Special Judge. The A.P.G. further contended that the only issue is whether the case should have been referred to the Court of learned Magistrate first or, later, to the Sessions Judge/Special Judge. The A.P.G. pointed out that before refe rring the case , the Magistrate should have issued a show cause notice to the accused, asking why their bail should not be canceled, as such, the Magistrate has wrongly passed the order .
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6 .
Heard and perused.
7 .
The case of prosecution is that the police arreste d the applicants and
recovered
1600 kg of Bhang while one accused made his escape good . As such, FIR was registered under sections 9 ( 1) (1) (D) of CNS Act, 2022 . After completion of the investigation, a report in terms of section 173 Cr.P.C.
was submitted
before the learned Special Judge for CNS cases/MCTC, Tando Muhammad Khan ; however, learned Special Judge vide order dated 08.12.2023 returned the FIR and direct ed to the Station House Officer Ashiq Balouch for submitting the same before the concerned Judi cial Magistrate having jurisdiction . In compliance thereof, the Investigating Officer submitted challan/police report before the learned Civil Judge & Judicial Magi strate - III, Tando Muhammad Khan .
8 .
It is important to note here that when learned Sessio ns/Sp ecial Judge returned the report filed under section 173 Cr.P.C. the police officer has submitted the challan under section 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979. It would be appropriate to reproduce the relevant para of the order dated 0 8.12.2023 passed by learned Sessions Judge, which reads as under: -
“The instant crime does not fulfill the requirement of Control of Narcotics Substance Act 1997 and comes under Prohibition (Enforcement of Hadd) Order, 1979 and as per Schedule of Prohibiti on (Enforcement of Hadd) Order, 1979,
1 .
The leaves, small stalks and flowering or fruiting tops of the Indian hemp plant (cannabis Sativa L) including forms known as Bhang Siddhi or Ganja).
2 .
Charas that is, the resin obtained from the Indian hemp plant, whic h has not been submitted to any manipulations other than those necessary for packing or transport.
3 .
Any mixture, with or without natural materials or any of the articles mentioned in entries 1 & 2, or any drink prepared therefrom.
4 .
Opium and opium derivative s as defined in the Dangerous Drugs Act, 1930 (II of 1930).
5 .
Coca leaf and coca derivatives as defined in the aforesaid Act.
6 .
Hashish.
9 .
During pendency of the case, application under section 497 Cr.P.C. was filed and both the applicants were admitted to post - arrest bail in the sum of Rs.30,000/ -
each and PR bond in the like amount. after grant of bail by the learned Civil Judge & Judicial Magistrate - III Tando Muhammad, a charge was framed and at the time of recording evidence, the learned ADPP for the State p ointed out that instant case comes
under the Control of Narcotic Substances (Amendment) Act, 2022 and as
per
amendment of the Act, the “Bh ang, Sidhhi or ganja” are inserted in Section 2
under clause (b) of the Act. On such basis, the
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learned Magistrate ref erred the case to the learned Sessions/Special Judge
under section 347 Cr.P.C.
10 .
It
would be relevant to mention here
that the National Assembly/Majlis - e - Shoora (Parliament) has made amendments in the Control of Narcotic Substances Act, 1997
and this is cal led the Control of Narcotic Substances (Amendment) Act, 2022.
In the said Act, the bhang is also inserted in view of clause (b) in section 2 of CNS Act. The said insertion of bhang under clause (b) of section 2 is reproduced as under: -
“ (b)
in clause (d),
in paragraph (ii) after the word “known”, the words “and include all forms known as bhang, siddhi or ganja”
shall be inserted;”
In the said amendment the Table was prepared wherein the punishment provided for bhang in its quantity clause (a) upto 999 gra ms is
imprisonment which may be extended to three years but shall not be less than six months along with the fine
and lastly in clause (d) for the quantity of 20000 grams or more imprisonment which may be extended to life imprisonment but shall not be less
than fourteen years along with fine. In the instant case, learned Sessions/Special Judge was not properly guided by the learned ADPP or Police Officer, as such ,
an improper order was passed
treating the case under section 3 and 4
of Prohibition (Enforceme nt of Hadd) Order, 1979; although, in fact, the bhang was also inserted in the Control of Narcotic Substances (Amendment) Act, 2022, as stated above .
11 .
When it was confronted from learned counsel for the applicants that if after the order is passed by learn ed Sessions/Special Judge whether the Magistrate can yet continue to try the case despite fact that after Amendment made in the year 2022 in the CNS Act, on recovery of 1600 kg
of bhang, the accused is liable for punishment
upto
life imprisonment but shall
not be less than fourteen years
years along with fine as described in clause ( d ) of the column of Quantity in the Table
for contravention of sections 6, 7 and 8 of the Act besides the Judicial Magistrate is not empowered to award such amount of sentence, the learned counsel replied in positive and stated that it is prime duty of Magistrate to obey the judicial order whether it is right or wrong. Learned counsel, however, stated that if any wrong order is passed in this regard, then it was duty of the Prose cutor or police either to challenge the same or to file application for its review within the prescribed time.
12 .
I have also minutely perused the order passed by learned Judicial Magistrate, which reflects that when case was fixed for recording evidence, th e AD P P for the State pointed the jurisdictional point of the case after the Control of Narcotic Substances (Amendment) Act, 2022 the instant case comes under CNS Act, as such, the learned Magistrate has right ly
referred the
case
to the Court of Sessions/Sp ecial Judge under sections 347 Cr.P.C.
T his is a special enactment
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and the case became triable by the
Court of
Special Judge. More so, when the case came under the category of Narcotic Substance Act, the Magistrate
is not empowered to try the same as it ca rries punishment beyond its powers as enunciated under section 32 of the Code of Criminal Procedure, 1898 whereby under clause (a) the Magistrate of the first class is only empowered to award imprisonment for a term not exceeding three years including such
solitary confinement as is authorized by law as well fine not exceeding forty five thousand rupees
(arsh; daman).
A fter passing the order dated 21.10.2024 by the learned Magistrate neither it was challenged by the applicants nor they raised any objection at the time of passing such order. However, learned counsel for the applicants filed pre - arrest bail before the Court of Sessions/Special Judge for CNS Cases . After hearing the parties, the said bail application was dismissed.
13 .
It is important to note here
that
i f the charges or the nature of the case change s
which may result that
the accused may face a more severe trial, a show - cause notice is necessary to inform the accused about the change in the court's jurisdiction and to allow them an opportunity to r espond.
Even no show cause notice w a s issued by the learned Magistrate to the accused that why their bail granting order shall not be recalled.
This is an essential procedural safeguard to ensure fairness in the criminal justice system as it allows the acc used to challenge the transfer or adjust their defense strategy in light of the more serious charges ,
which they may face. In this case, the learned Magistrate should have issued such a notice to the applicants to uphold procedural fairness.
14 .
Admittedly bef ore reference of the case, the applicants were on bail . Even, learned Magistrate has not recalled the bail granting order, which is still in field . In the case of ‘MUHAMMAD ANWAR v. The STATE and another’ [2024 SCMR 1567] , the Honourable Supreme Court has held that;
“10.
Liberty of a person is a precious right which has been guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973. By now it is also well settled that it is better to err in granting bail than to err in refusal because ultimat e conviction and sentence can repair the wrong resulted by a mistaken relief of bail;”
15 .
The applicants are continuously attending the trial Court. There is also no complaint
that they have misused the concession of bail.
The bail cannot be denied to the ac cused merely on the aforementioned reasons . Since the applicants were admitted to bail subject to their furnishing a solvent surety in the sum of Rs.30,000/ -
each; however, keeping in view the above circumstances of the case, their interim pre - arrest bail already granted to them in the sum of Rs.50,000/ -
each is confir med with enhancement of surety that the applicants
shall have to furnish more surety of Rs.50,000/ -
each with PR bond in the like amount.
At this juncture, learned counsel appearing on behalf of the applicants
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seeks a week’s time to furnishing surety by the applicants as ordered today. One week’s time is allowed.
16 .
In view of the above position, t he order dated 08.12.2023 passed by learned Special Judge for CNC/MCTC, Tando Muhammad Khan shall no t be treated in field and the same being unlawful is
set aside.
17 .
Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial Court while deciding the case of the applicant s
on merits.
JUDGE
*Abdullah Channa/PS*