' 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 overpowered 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.
4. Post-arrest bail of the petitioner was declined by the learned Addl. Sessions Judge (III), Islamabad, vide his order dated 18-1-2005. [1] 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 on 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 SCM R 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 i03, 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 misunderstanding 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 f 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 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 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 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 SCM R 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. Sindh 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 SCM R 54).
11. No presumption existed that police witnesses are not competent. The presumption is that a person acted honestly, woulti 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 misunderstanding, 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.