2007 Y L R 3105

[Lahore]

Before Muhammad Akhtar Shabbir and Umar Ata Bandial, JJ

HANOOK BABAR MASIH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 180-B of 2004, decided on 9th March, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c); 25 & 51---
Bail, refusal of---Accused could not establish that he had been involved in case mala
fide due to enmity with one Head Constable of the Police--~-Narcotic
material/Charas weighing 1025 grams had been recovered from possession of
accused---Said material having exceeded one Kg case of accused was covered by
S.9(c) of Control of Narcotic Substances Act, 1997 which was punishable with death
or life imprisonment or imprisonment for a term which could extend to 14 years---
Subsection (I) of S.51 of Control of Narcotic Substances Act, 1997 had imposed a
restraint on the grant of bail to on accused charged with an offence punishable with
death---Even if case of accused was not punishable with death, under subsection (2)
of S.51 of Control of Narcotic Substances Act, 1997, law had provided that bail
would not be normally granted, unless the court was of the opinion that it was a fit
case for grant of bail---Accused could .not advance any plausible ground for grant of
bail, except ground of enmity with the Head Constable of the police, which laid
already been repelled---Association of two or more respectable persons of the
locality, was not required in the narcotics cases as provisions of S.25 of Control of
Narcotic Substances Act, 1997 had excluded application of 5.103, Cr. P. C.---All
witnesses in the case, though were police employees, but neither any legal prohibition
existed against a police officer nor he was prohibited under the law to be a
complainant, if he was a witness to the commission of an offence in such cases---
Accused had not challenged the nature of recovered substances being not "Charas"
narcotics before the Trial Court or the High Court---No presumption existed that
police witnesses were not competent---Counsel for accused had not been able to
make out any case for grant of bail to accused---Arguments of counsel for accused
required deeper appreciation of evidence, which could not be gone into by High
Court at the bail stage---Prime facie, there being sufficient material against accused
to connect him with the commission of offence, his bail petition was dismissed.

Muhammad Yousuf v. The State 2001 YLR 2324; Iindad Ali v. The State 2001 YLR
1848; Hadi Bux alms Haood v. The. State 2000 PCr.LJ .714; Gul Zaman v. State 1999
SCMR 1271; Ashiq Husain alias Muhammad Ashraf v. The State PLD 1994 SC 879;
Gul Said v. The State 2002 PCr.LJ 1680; Abdul Rehman Mubarak v. The State 2000
PCr.LJ 907; Muhammad Ali v. The State 2000 PCr.LJ 755; Muhammad Amin. v. State
1999 SCMR 1367; State through A.G. Sindh v. Bashir and others PLD 1997 SC 408;
Ali Muhammad v. The State 2003 SCMR 54 and Mst. Anwar Bibi v. The State 2004
PCr.LJ 692 rel.

Muhammad Tanveer Chaudhry for Petitioner.

Ameen Feroz for the State.

ORDER

The petitioner seeks post-arrest bail in a-case F.I.R. No. 280/2004 dated 11-11-2004-
registered under section 9-C, Control of Narcotic Substances, Act, 1997 at Police
Station Kohsar, Islamabad.

2. Succinctly, the prosecution case as narrated in, the F.I.R is that while on patrol duty
Muhammad Tehseen S.I. Police Station Kohsar along with Shams Akbar A.S.-I,
Iftikhar Ahmed H.C, Zulfiqar Ahmed H.C, Ghulam Rasool constable in a van driven
by Ahmed Nawaz in the area of F.7/4 Gali No.54, Islamabad received a spy
information to the effect that a young man having heavy quantity of Narcotics material
in his possession is going from the Blue Area to France Colony and if immediate raid
is conducted heavy quantity of Charas can be recovered. The police party saw that at
about 7-30 p.m. a young boy having a black shopper bag in his hand as .coming
towards France Colony and on seeing the police party tried to run away but was over-
powered by the police and on inquiry he told his name as Hanooq Baber Masih. From
the search of the shopping bag Charas weighing 1025 grams was recovered which was
taken into possession. Out of the total quantity 10 grams of Charas was separated for
onward transmission to the Chemical Examination.

3. Post-arrest bail of the petitioner was declined by the learned Addl. Sessions Judge
(IN), Islamabad, vide his order dated 18-1-2005.

4. Learned counsel for the petitioner contended that the petitioner has filed an
application against Head Constable Zulfiqar, who used to threat the petitioner to
involve him in a narcotics case, before the said occurrence on 26-7-2001 and as a
counterblast of this application, the petitioner has been robbed in the instant case, thus,
the case against the petitioner is a result of mala fide of the police.. In this context he
has placed his reliance mi the cases of Muhammad Yousaf v. The State (2001 YLR
2324) and Imdad Ali v. The State 2001 YLR 1848. Further contended that clause of
497; Cr.P.C. is not attracted to the case registered under the Control of Narcotic
Substances, Act, 1997 while special provision of the Law under section 51 subsection
(2) is applicable to the present case. Further contended that prima-facie no case
punishable with death was made out against the petitioner and in such like case bar
contained in section 51 of the Control of Narcotic Substances, Act, 1997 was not
applicable to the present case. He has placed his reliance to the cases of Hadi Bux alias
Haood Vs. The State 2000 PCr. LJ 714 and. Gul Zaman v. State 1999 SCMR .1271.
Further contended -that decisions of the Apex Court are binding upon all the Courts of
the Country but notwithstanding the learned trial Court had not discussed the same in
the impugned order. Reliance has been placed to the case of Ashiq Hussain alias
Muhammad Ashraf v. The State (PLD 1994 SC 879). Further contended that F.I.R.
itself contains that many persons attracted to the spot but no private person was joined
at the time of alleged recovery and as such violation of section 103, Cr.P.C. has been
made. Further contended that the power to refuse or allow bail would be exercised by
the Court under section 51 of the Control of Narcotic Substances Act, 1997 and if a
case for grant of bail is made out, the Court is bound to grant the same as provided in
section 51(2) of the Control of Narcotic Substances Act, 1997. He has placed his
reliance on-the case of Gul said v. The State (2002 PCr.LJ 1680).

5. On the other hand, learned State Counsel has vehemently opposed the grant of bail
to the petitioner contending that- the case .against the petitioner is registered under
section 9-C of Control of Narcotic. Substances Act, 1997.

6. We have heard the arguments of the learned counsel for the parties and perused the
record.

7. As to the contention of learned counsel for the petitioner that the petitioner has been
involved malafidely due to enmity with one Head Constable Zulfiqar. It would be
suffice to observe that on the application of the petitioner an inquiry was conducted by
the A.S.P City Circle, Islamabad and during inquiry proceedings, the allegations
against the police official were found false and the petitioner himself made a statement
before the A.S.P. that due to some mis understanding he had filed the application and
he intends not to proceed on the same against the said police official. This fact has not
been denied by the learned counsel for the petitioner, so due to this admitted position
the ground of enmity with the police is washed off.

8. As enshrined in section 51 of Control of Narcotic Substances, Act, 1997 that (1)

Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure
Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an
offence under this Act or under any other law relating to narcotics, where the offence is
punishable with death. (2). In the case of other offences punishable under this Act. Bail
shall not be normally granted unless the Court is of the opinion that it is a fit case for
the grant of bail and against the security of a substantial amount. The Narcotics
material/Charas weighing 1025 grams has been recovered from the `possession of the
petitioner and section 9-C of the Control of Narcotic Substance Act, 1997 has provided
punishment of death or imprisonment for life or imprisonment for a term which may
extend to fourteen years and also be liable to fine which may be upto one million
rupees; if the quantity of narcotics drug, psychotropic substance or controlled
substance exceeds the limit specified in clause (b) i.e. exceeds of 100 grams but it does
not exceed 1 K.G.. Here in the present case the Narcotics material recovered from the
petitioner is exceeded from 1 K.G, therefore, his case is covered B within section 9-C
of the Act which is punishable with death or life imprisonment or imprisonment for a
term which may extend to 14 years. According to subsection (i) of section 51 of
Control of Narcotic Substances Act, 1997 the law has imposed a restraint to the grant
of bail to an accused person charged with an offence punishable with death. However,
if for the sake of arguments, the case of the petitioner is not punishable with death even
then under subsection (2) of section 51 of Control of Narcotic Substances Act, 1997,
the law has provided that bail shall not be normally granted unless the Court is of the
opinion that it is a fit case for the grant of bail.

9. Learned counsel for the petitioner except the ground that the petitioner has been
involved in the case on the basis of C enmity with the police has not advanced any
plausible ground for grant of bail and the ground of enmity has been repelled in the
preceding paragraph.

10. The arguments of the learned counsel for the petitioner that violation of section
103, Cr.P.C. had been made, the answer would be that the association of two or more
respectable .persons of the locality was not required in the Narcotics cases as the
provisions of section 25 of CNSA 1997 had excluded the application of section 103,
Cr.P.C. as laid down in cases of Abdul Rehman Mubarak v. The State (2000 PCr.LJ
907). Muhammad Ali v. The State (2000 PCr. LJ 755) and Muhammad Amin v. State
(1999 SCMR 1367). There is no denial with the fact that all the witnesses in the case
are police employees but there is neither any legal prohibition for a police officer nor
he is prohibited under the law to be a complainant if he is a witness to the commission
of an offence in the narcotics cases Reference in this context can be made to the case of
State through A.G. `Singh v. Bashir and others (PLD 1997 SC 408). The petitioner has
not challenged the nature of the recovered substance being not "charas" or narcotics
before the trial Court or this Court. So much so, it had also not been prayed before the
Court below that entire material be sent to the Chemical Examiner for report as to
challenge that it was not a narcotics substance. In this respect reliance can be made to
the case of Ali Muhammad v. The State (2003 SCMR 54).

11. No presumption existed that police witnesses are not competent. The presumption
is that a person acted honestly, would apply much in favour of a police official as of
other person and their testimony would not be excluded except for valid reasons when
there seemed to be no justification to exclude their evidence from consideration.
Reliance can be placed to the case of Mst. Anwar Bibi v. The State 2004 PCr. LJ 692.

12. Learned counsel for the petitioner has not been able to make out any case for grant
of bail and the petitioner had made himself a statement to the effect that he has filed
the application against the Head Constable Zulfiqar on some mis understanding, thus
the case-law referred to by the learned counsel for the petitioner is not attracted to the
present case and also not beneficial to the petitioner. Arguments of the learned counsel
for the petitioner require deeper appreciation of evidence, which cannot be gone into
by this court at the bail stage. Prima facie there is sufficient material against the
petitioner to connect him with .the commission of the offence.

13. For the foregoing" reasons and without prejudicing the merits of the case, we find
no substance in this bail petition, hence dismissed.

H.B.T/H-17/L Bail refused.

;