2022 Y L R 2392
[Balochistan]
Before Nazeer Ahmed Langove and Sardar Ahmed Haleemi, JJ
MUHAMMAD SADIQ ---Applicant
Versus
The STATE ---Respondent
Criminal Bail Application No. 82 of 2022, decided on 29th July, 2022.
(a) Criminal Procedure Code (V of 1898 )---
----S. 497 --- Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51 ---
Transportation of narcotics ---Bail, refusal of ---Huge quantity of narcotics ---Scope ---Accused
along with another was apprehended while transporting 28 kg and 921 grams of Ice/Sheesha -
--No allegation of enmity or false implication was levelled against the police nor anything
was available on the record ---Recovery of the vehicle (from which the contraband was
recovered) was not disputed nor any other person had come forward t o claim its ownership ---
Huge quantity of narcotic substance was recovered and the offence was non -bailable, which
not only fell within the prohibited clause of S. 497, Cr.P.C. but also attracted the bar
contained in S.51 of the Control of Narcotic Substanc es Act, 1997 ---Bail could not be
encouraged when the proceedings before the Trial Court were at final stage, as the same
could prejudice the case of either party ---Bail application was rejected, in circumstances.
Ehsan Ullah Khan v. The State 2020 YLR 50; Ahsan Bangash v. The State 2017
PCr.LJ 511; Muhammad Saleh Mallah v. The State 2016 PCr.LJ 432; Hakim Ali v. The State
2001 PCr.LJ 1865 and Ghulam Muhammad v. The State 1997 PCr.LJ 805 distinguished.
Imtiaz Ahmed v. The State PLD 1997 SC 545 rel.
(b) Cri minal Procedure Code (V of 1898) ---
----S. 497 ---Bail---Scope ---Bail cannot be encouraged when the proceedings before the Trial
Court are at final stage, as the same can prejudice the case of either party. [p. 2395] D
Syed Saleem Akhtar and Ms. Talat Rehm an for Applicant.
Yahya Baloch, Additional Prosecutor General ("APG") for the State.
Date of hearing: 26th July, 2022.
ORDER
SARDAR AHMED HALEEMI, J. ---This case arises out of order dated 30.04.2022
(hereinafter the "impugned Order") passed by the learned Sessions Judge, Mastung
(hereinafter "the trial Court") in Criminal Bail Application No.43 of 2022, wherein the
learned trial court has not inclined to grant bail to the accused/applicant in FIR No. 19/2021
dated 04.10.2021 at Levies Station Daringarh District Mastung registered under section 9(c)
of Control of Narcotic Substances Act, 1997 (hereinafter "the Act").
2. Facts as alleged in the FIR portray t hat on 04.10.2021 the complainant namely Zaheer
Ahmed Naib Risaldar along with levies officials were on area patrolling, in the meantime a
secret information was received that in a black color land cruiser vehicle bearing registration
No. BF -1808 on its wa y carried contrabands from Noshki. On receiving information, the
levies erected a Naka/barriers at Barag top and started searching for the vehicles. At about
6:00 a.m, the said vehicle reached at the said area which was stopped by the levies personnel.
On query, the persons sitting on driving seat disclosed his name as Muhammad Sadiq son of
Fateh Muhammad by caste Rakhshani resident of Kharan, whereas the second person sitting
on rear seat stated that his name was Ghulam son of Sufi Muhammad by caste Noteza i
resident of Dalbandin. Both the accused persons were deported from the vehicle and the
vehicle was searched. The secret informer pointed out the secret cavities, where the narcotics
were concealed. The bags of narcotics (ice/sheesha) were recovered, upon weighing the bag
No.1 contained 9 kg and 580 grams, bag No.2 contained 9 kg and 620 grams whereas bag
No. 3 contained 9 kg and 730 grams which were taken into possession and samples separated
for chemical analysis. The bag and samples were sealed on the s pot. The accused persons
were arrested and the said vehicle and contrabands were taken into possession. On above
mentioned written Murasila of the complainant the instant case was registered at Levies
Station Daringarh District Mastung. Hence, the crime re port.
3. After registration of FIR, the accused persons were investigated and after completion
thereof, they were remanded to judicial custody.
4. After submission of final investigation report, the challan was submitted before the
trial court and the tria l is pending.
5. The trial court after receiving challan provided all the required documents to the
applicant/accused as per law and thereafter the trial court framed the charge against the
accused persons and both the accused pleaded not guilty and claime d trial.
6. During trial, the prosecution examined as many as two witnesses i.e. PW -1 Khalid
Ahmed, levies official the witness of seizure memo and recovery of contrabands, PW -2
Zaheer Ahmed Naib Risaldar levies (complainant).
7. In the meantime, the appli cant/ accused filed Bail Application No.43 of 2022 for the
grant of post arrest bail before the trial court which was declined vide order dated
30.04.2022.
8. The accused/applicant approached this Court by means of filing Criminal Bail
Application No.82 of 2022 seeking post arrest bail.
9. We have heard learned counsel for the accused/applicant as well as learned APG at
length and have gone through the available record with their able assistance.
10. Learned counsel for the applicant/accused argued that the accused/ applicant was
innocent and has falsely been implicated in the instant case with mala fide intention. No iota
of evidence is available on record to connect the accused / applicant with the alleged
commission of offences. He further contended that t he statement of two prosecution's
witnesses were contradicting the version of prosecution and it was asserted that Section 103
Cr.P.C was violated as no private person was associated at the time of arrest of the
accused/applicant and recovery of narcotics substances.
Learned counsel for the accused/ applicant in support of his contention placed
reliance upon the case of Ehsan Ullah Khan v. The State (2020 YLR page 50 Peshawar),
Ahsan Bangash v. The State (2017 PCr.LJ 511), Muhammad Saleh Mallah v. The Stat e (2016
PCr.LJ 432), Hakim Ali v. The State (2001 PCr.LJ 1865) and Ghulam Muhammad v. The
State (1997 PCr.LJ 805) and lastly contended that the accused/ applicant is a medical student
who passed his professional examination in the year 2009 from BMC.
11. Learned A.P.G. appearing on behalf of State strongly controverted the contention of
learned counsel for the accused/applicant on the ground that huge quantity of narcotics i.e.
28 kg and 921 grams were recovered from the possession of the accused/applicant, further
the bail of co -accused namely Ghulam son of Sufi Muhammad has already been rejected by
this Court vide order dated 25.05.2022.
12. The prosecution recorded the statement of PW -3 Zaheer Ahmed, Niab Risaldar Levies
(complainant), who stated that the case was at the conclusion stage and lastly submitted that
deeper appreciation of facts and evidence would affect the merit of the case.
13. The material available on record it prima facie appears that the accused/ applicant was
apprehended with the vehic le and from their possession huge quantity of narcotics i.e. 28 kg
and 921 grams of Ice/Sheesha were recovered and no specific allegation of enmity or false
implication was levelled against the police nor anything is available on the record.
14. The learned counsel for the accused/applicant could not point out
any misreading or non -reading of material facts and law in the bail rejected order.
15. Admittedly, the co -accused Ghulam also assailed the order dated 30.04.2022 rejecting
his bail applica tion before the trial court and the same was rejected by this Court vide order
dated 25.05.2022. The recovery of the vehicle from which the contrabands were recovered
was also not disputed nor any other person had come forwarded to claim to the ownership.
The case law cited by the learned counsel for applicant is not attracting in the circumstances
of present case, as huge quantity of narcotics substances were recovered and is non -bailable
offence, which not only fell within the prohibitory clause of sectio n 497 Cr.P.C, and also
attract the bar contained in section 51(1) of CNS Act, 1997, which provides that bail shall
not be granted to an accused person charged in the death or life imprisonment. In this respect
reliance is being placed on the case titled as Imtiaz Ahmed v. The State (PLD 1997 SC 545).
The relevant para is reproduced as under: --
"The Courts should not be oblivious of the fact that at present country is confronted
with many serious problems/ difficulties of national and international magnitude,
which cannot be resolved unless the whole nation as a united entity makes efforts.
The d esire to amass wealth by illegal means has penetrated in all walks of life. The
people commit offences detrimental to the society and the country for money. Some
of the holders of the public office commit or facilitate commission of offences for
monetary c onsideration. In the above scenario the Courts' approach should be
reformation -oriented with the desire to suppress the above mischiefs. To achieve the
above objective, it is imperative that the Courts should apply strictly the laws which
are designed and intended to eradicate the above national evils but at the same time,
they are duty bound to ensure that the above approach should not result in miscarriage
of justice. It should not be overlooked that Article 9 of our Constitution, which relates
to a funda mental rights, guarantees life and liberty of every person. Life, inter alia,
includes the right to have access to a fair and independent judicial forum for redress.
A balance is to be struck between national and individual interest/right".
16. Apart from the above, there is also a settled preposition laid down by the Apex court
that bail could not be encouraged when the proceedings before the trial court are at final
stage as the same may prejudice either party.
In view of above, we are not inclined to al low this bail application, which is hereby
rejected.
However, the observations made hereinabove are tentative in nature and same shall
not influence the merit of the case at the trial.
SA/121/Bal. Bail declined.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,
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