1. ' MAQBOOL BAQAR, J.--- Through this application, the applicant Zulqarnain Sikandar prays for grant of bail in F.I.R. No,30 of 2008, registered at Police Station ANF Clifton, under sections 6/9(c), CNS Act.
2. ' The prosecution story, as narrated in the F.I.R., briefly, is that on 13-10-2008, S.-I./S.H.O., Police Station ANF, Clifton, Karachi received information from his superiors that the applicant, who was then present at the main gate of Karachi University, has informed that one Sami Ahmed Ansari, resident of House No,B/52, Block-2, Gulistan-eJauhar, Karachi, who smuggles narcotics by concealing them in furniture that he exports, has stored a huge quantity of narcotics in his aforesaid house, which is to be smu ggled abroad. The informant claimed that he can have the narcotics recovered. Upon such information and under orders of his superior, the S.-I./S.H.O. Along with his raiding party, namely, A.S.-I. Shakeel Ahmed, A.S.-I. Naeem Khan, H.C. Safdar Nadeem, P.C.
3. Pervez Shah, P.C. Muhammad Hanif and other staff of ANF, who were duly armed, proceeded on the official vehicles towards the specified place. The raiding party when reached the main University gate, found a car bearing No,AMB-345 parked there. Two persons who introduced themselves as Zulqarnain, the applicant, and Saqib Shaikh, came out of the car and confirmed having passed on the above information to ANF. Both these persons along with one other person led the raiding party in their car to the House No,B/52, Block-2, Gulistan-eJauhar, Karachi. On the pointation of the applicant, the said house was encircled. Before carrying out the search, people from the neighbourhood were requested to act as witness to the search but they refused and, therefore, A.S.-Is. Shakeel Ahmed and Naeem Khan were nominated as Mashirs. On the knock of the door, a person opened the door and disclosed his name as Sami Ahmed Ansari, he claimed that he is the owner of the house. The members of the raiding party were posted at various places inside and outside the house. Upon search, no prohibited substance was recovered, however, PC Pervez Shah, who was posted in the lawn of the house 3 came inside and informed that the applicant has placed a black bag near the plants inside the lawn. Whereupon the complainant, S.H.O., along with the above witnesses came to the lawn and found one black bag lying near the plants. Whereupon they looked for the applicant but by then the applicant along with Saqib Shaikh and the aforesaid third person escaped in their car. Upon search of the bag, Charas in the shape of slabs, wrapped in white plastic bag, was recovered. The total quantity of the recovered Charas came to 4.500 Kgs.
4. Upon interrogation, Sami Ahmed Ansari stated that he has no concern with the Charas recovered from his lawn. He stated that he is a furniture designer and exports his furniture abroad. He further stated that he has some business dispute with one Kamran Farhat, who has been threatening him and that a day before the recovery, the applicant, who is a friend of Kamran Farhat, came to his place along with some armed man and extended threats of dire consequence. Sami Ahmed Ansari also gave copies of a legal notice, sent by him to Kamran Farhat and of two complaints made by him to police regarding the above dispute and threats. 100 grams out of each recovered slabs was sent for chemical examination and it was thus verified that the recovered material was in fact Charas.
5. ' Heard learned counsel for applicant and the learned Special Prosecutor, ANF and perused the case papers.
6. ' Learned counsel for the applicant submitted that the prosecution story as narrated in the F.I.R. Is an absolute absurdity as it is inconceivable that a person, who informs ANF regarding presence of narcotic substances in a house and then lead them to such house, would, in presence of one of the members of the raiding party place Charas in the open i,e, the lawn of the house. Learned counsel submitted that neither the recovery has been made from the person of the applicant nor from his place. He contended that the applicant has been falsely implicated in the case as according to Sami Ahmed Ansari, and as recorded in the F.I.R. Itself, there is enmity between Sami Ahmed Ansari and one Kamran Farhat, who is a friend of the applicant and at whose instance the applicant allegedly came to Sami's house and threatened Sami of dire consequences. Mr. Khattak further submitted that the co-accused Saqib Asghar, who is said to have admitted before the Investigating Officer that the recovered Charas was brought by him and one Rustom Jatoi, (who allegedly was the third person accompanying the applicant at the time the raid was conducted) from Sanghar, however, Saqib Asghar has been granted bail but the applicant's bail application has been rejected by the trial Court. The learned counsel referred to the case of Anwar v. The State 2005 M LD 950, wherein it has been held that where the narcotics substance is not recovered from the actual possession of the accused, such is a case of further inquiry. He urged that in the facts and circumstances of the case, the applicant is entitled to be admitted to bail by this Court.
7. ' On the other hand, Syed Ashfaq Hussain Rizvi, learned Special Prosecutor, ANF resisted the grant of bail to the applicant. He submitted that it is a case of recovery of huge quantity of Charas and the applicant, if found guilty, would be liable either to death sentence, or to imprisonment for life or to imprisonment for 14 years and thus, the case of the applicant falls within the prohibitory clause. He further contended that in view of section 51 of the CNS Act, 1997, bail in the facts and circumstances of the case cannot be granted to the applicant. Mr. Rizvi further submitted that, at this stage, the Court cannot examine the case minutely and has to rely on the face value of the case material available on record. In support of his contention, the learned Prosecutor relied upon the case of Aslam Khan v. Qaiser Khan and 2 others 1999 PCr.LJ 582, wherein it is held that the grounds of bail in the cases punishable with death or life imprisonment should be determined judiciously having regard to the facts and circumstances of the case and the Court should not minutely examine the merits of the case or defence plea for ascertaining the question of reasonable ground for the purpose of subsection (2) of section 497, Cr.P.C. The reasonable ground as envisaged under section 497(2), Cr.P.C. Must mean grounds which appeal to a reasonable and prudent mind. It is further held that undoubtedly, the benefit of reasonable grounds and doubt, if any, would necessarily go to the accused and bring the case within the purview of section 497(2), Cr.P.C. But artificial and fanciful grounds on the basis of presumption cannot be called reasonable grounds.
8. ' I have considered the respective contentions of the learned counsel for the parties and perused the case papers.
9. The prosecution story as narrated in the F.I.R. Itself does not inspire confidence at this stage. It is difficult to conceive that a person, who informs ANF regarding presence of narcotic substances in a house and then lead them to such house, would, in presence of one of the members of the raiding party place Charas in the open i,e, the lawn of the house. It is all the more unbelievable that such a person, would be allowed to walk away scot-free despite the fact that armed personnel of the force were not only posted inside the house and at the very spot where the bag is placed but the house was also encircled by them. No recovery has been made from the person or the place of the accused. The co-accused, who is said to have admitted before the Investigating Officer that he along with the co-accused Rustom Jatoi has brought the Charas from Sanghar, has been granted bail.
10. ' The learned Special Prosecutor has not been able to answer as to whether any action or even inquiry has been initiated against P.C. Pervez Shah in whose presence the applicant allegedly placed the Charas in the lawn and/or against the other personnel who allowed the applicant to escape from the scene. Investigation in this case has been concluded and r final challan has been submitted.
11. ' In the case of Gul Zaman v. The State 1999 SCM R 1271, it is held that notwithstanding the bar contained in section 51 of the Control of Narcotic Substances Act, 1997 bail could be granted to an accused person and that applicability of sections 496, 497, 498, Cr.P.C. Is not totally barred in respect of cases under the said Act. It is further held that the accused is presumed to .Be innocent till he is proved guilty beyond reasonable doubt by the prosecution and he, therefore, during the trial stands on a different footing than the accused against whom a competent Court has returned the verdict of guilt as in the latter case the presumption of innocence would not arise.
12. ' Charas has not been recovered from the actual possession of the accused, who allegedly escaped from the scene. It is yet to be ascertained as to whether the accused was actually in possession of the Charas. Case against the applicant is of further inquiry. The statement of the constable against the applicant is to be considered by the trial Court. The applicant is entitled to the benefit of reasonable grounds and doubts and bail in the facts and circumstances of the case cannot be refused to the applicant merely because the offence shown in the F.I.R. Is punishable with death.
13. ' In view of the foregoing, the applicant is admitted to bail, upon his furnishing surety in the sum of Rs,2 million with P.R. Bond of like amount to the satisfaction of the Nazir of this Court.