2021 M L D 1381
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
The STATE--- Applicant
Versus
Syed AMIR MUHAMMAD---Respondent
Criminal Bail Cancellation Application No.21 of 2020, decided on 21st August, 2020.
(a) Criminal Procedure Code (V of 1898) ---
----Ss.497(5)& 103--- Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 25---
Application for cancellation of bail ---Possession of narcotics ---Non -association of private
witnesses---Scope ---Prosecution sought cancellat ion of bail granted to accused by the Trial
Court ---Accused was alleged to have been found in possession of 4 kilograms of ice (drug) ---
Non-association of private witnesses could not be made a basis for granting post -arrest bail
to an accused as S.25 of th e Control of Narcotic Substances Act, 1997, excluded application
of S.103, Cr.P.C., in narcotic cases ---Trial Court had wrongly made deeper appreciation of
evidence at bail stage, which was not permissible rather tentative assessment of the material
collec ted by the prosecution had to be made at bail stage ---Order granting post -arrest bail to
the accused could not sustain ---Application for cancellation of bail was allowed, in
circumstances.
The State through Deputy Director Anti -Narcotics Force, Karachi v . Mobin Khan
2000 SCMR 299 and Zafar Iqbal v. Muhammad Ilyas 2006 SCMR 150 ref.
(b) Criminal Procedure Code (V of 1898) ---
----S.497--- Post arrest bail ---Final stage of trial ---Scope ---Courts are slow in granting post -
arrest bail at final stage of the trial.
Muhammad Baqir Bakhtiar, Special Prosecutor ANF for Applicant/State.
Asmatullah Mandokhail for Respondent.
Date of hearing: 16th July, 2020.
ORDER
ROZI KHAN BARRECH, J. ---Through instant application the applicant (Regional
Director Anti -Narcotics F orce) seeks cancellation of bail granted to the accused/respondent
Syed Amir Muhammad son of Abdul Ali vide order dated 21.10.2019 by learned Judge
Special Court CNS Balochistan Quetta ("trial court") under Sections 9(c) of the Control of Narcotic Substanc es Act, 1997 (hereinafter the "CNS Act") in FIR No. 07 of 2019 PS ANF
Quetta.
2. Brief facts of the case are that on 21.03.2019 the complainant Muhammad Naseem IP
received spy information that one person namely Syed Amir Muhammad is selling Ice (drug) near different schools and language centers in Kuchlak. On the said information the complainant along with other officials of ANF reached Killi Sanzarkhailan at 1:00 pm and started surveillance near schools and language centers and after sometime at 5:00 pm
accused/respondent holding a white colored bag on his shoulder was spotted coming from Kuchlak toward Judicial Complex Kuchlak. He was apprehended and during search from the bag 4 kilograms of Ice was recovered, which was taken into possession thr ough recovery
memo in the presence of witnesses. Hence, the crime report.
3. After completion of investigation challan was submitted before the trial court. Charge
was framed and read over to the respondent. The accused/respondent did not plead guilty to the charge and claimed trial. During the trial when the case was fixed for recording the
statement of investigation officer the accused/respondent moved an application for grant of post arrest bail. After hearing the learned counsel for the parties the trial court accepted the said application and granted post -arrest bail to the accused/respondent vide impugned order
dated 21.10.2019. Hence, the instant application.
4. We have heard the arguments advanced by learned counsel for the parties and have
also peru sed the available record with minute particulars.
5. While granting bail to the accused the trial court observed as under:
"….It is also borne out from the available record that three witnesses have examined, and from last 12 hearings no prosecution witne ss able to appear before this court, it is
further revealed from the available record that no any private witness is associate in the instant case such as any teacher and student of the school and language center as alleged in the FIR for selling drugs to students, the FGA report is also doubtful. Case
is at the final stage and fixed for statement of investigation officer, further detention does not serve any useful purpose".
6. From perusal of the record it reveals that the accused/respondent was arrested on
21.03.2019 and he was released on bail by the trial court on 21st October 2019 after seven months of his arrest. Allegedly the prosecution/ANF officials recovered 4 kilograms of Ice from physical possession of the accused/respondent. Section 9 of the CN S Act provides
punishment for imprisonment for life, sentence upto fourteen years, or death. Clause (b) of the third proviso of section 1 of section 497 provides the statutory period of two years and not seven months. In the instant case the accused/respon dent was arrested on 21.03.2019 and
the above statutory period of two years had not lapsed on 21.10.2019 i.e. when he was admitted to bail.
7. Non-association of a private witness cannot be made a basis for
granting post -arrest bail to the accused/respondent as section 25 of Control of Narcotic
Substances Act, 1997 excludes application of section 103, Cr.P.C. in the cases under Control
of Narcotic Substances Act, 1997. The trial court has wrongly made deeper appreciation of evidence at the bail stage which is not permissible, rather tentative assessment of the material/evidence collected by the prosecution has to be made at bail stage.
It is also settled principle of law that the courts are always slow in granting post -arrest
bail at final stage of the tria l.
8. The respondent is prima -facie involved in commission of a non- bailable offence
under CNS Act, 1997 and was not entitled for concession of post -arrest bail at the final stage
of the trial.
While granting post -arrest bail to the accused/respondent the trial court has wrongly
exercised its discretion.
9. In view of what has been discussed herein above, the ease against the
accused/respondent squarely falls within the mischief of 9(c) of the CNS Act and that being so, the impugned order granting post -arrest bail to the accused/respondent cannot be
sustained. For rendering this view we are fortified by the dictum laid down by the Hon'ble Supreme Court in the case of The State through Deputy Director Anti -Narcotics Force,
Karachi v. Mobin Khan (2000 SCMR 299) and Zafar Iqbal v. Muhammad Ilyas (2006 SCMR 150).
As a result, the applicant is allowed and the post -arrest bail granted to the
accused/respondent by the trial court is cancelled. The accused/respondent shall be taken into
custody.
The above discussi on shall constitute the reasons for our short order dated 16- 7-2020
announced in open court.
SA/177/Bal. Bail cancelled.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.