1. ' MUHAMMAD IQBAL MAHAR, J.--- This bail application is directed against the order, dated 13-5- 2009 passed by the learned Judge of Special Court-II (C.N.S.), Karachi in Special Case No,200 of 2008 arising out of Crime No,10 of 2008 Police Station Excise (Malir), under section 9(c) of C.N.S. Act, 1997.
2. ' Precisely the prosecution story is that on 20-7-2008 complainant Mushtaq Ahmed Khokhar, Excise Inspector, along with his, subordinate staff was waiting at Northern Bypass, Near Tool Plaza, saw a Suzuki bearing No,KF-1729 coming towards bypass in which two persons including driver were sitting. On signal of spy informer complainant got stopped the Suzuki pick-up and encircled the same. Complainant got both persons down. On inquiry the person sitting on driving seat disclosed his name Ambia Khan while the other disclosed his name as Arz Muhammad. From the search of Ambia Khan complainant recovered Photostat copy of driving licence, NIC in the name of Ambia Khan and Rs, 800 while Rs,400 and copy of NIC were recovered .From the pocket of applicant/accused. Complainant took search of Suzuki and recovered 150 strips, 40 rods and powder of Charas from secret cavity of the Suzuki which became 200 Kgs. On interrogation the accused Ambia Khan disclosed that there are three partners, one is Allah Noor, second Haji Rasheed and third Shahzad who run a business of Charas while Arz Muhammad is working with them on salary. He further disclosed that they have brought the Charas from Uthal. The complainant prepared Mashirnama of arrest and recovery and after completing all formalities took the accused and property to their poll& station where he registered the F.I.R.'
3. ' The learned counsel for applicant/accused contends that the applicant/accused is neither a driver nor owner of the vehicle but simply he was sitting in the vehicle. He further contends that the Charas was recovered from the secret cavity of the Suzuki and the prosecution has failed to prove that the applicant/accused was in the knowledge of Charas. He further contends that the prosecution has not cited any private person as witness of the incident. In support of his arguments he has relied upon the cases of (1). Zahir Sliah v. The State 2009 MLD 467, (2) Ashfaq Ahmed v. The State PLD 2008 Pesh. 59, (3) Shamsur Rehman alias Shamsay v. The State 2008 PCr.LJ 354 and (4)
4. Muhammad Faisal v. The State 2006 YLR 3039.
5. ' On the other hand, Ms. Rahat Ahsan, Deputy Prosecutor-General, Sindh, vehemently opposes the grant of bail on the ground that the applicant/accused is nominated in the F.I.R. And he was arrested at the spot along with co-accused and a huge quantity of Charas was recovered from Suzuki which was in their joint possession. Furthermore, the driver has also implicated him and the offence comes within the prohibitory clause of section 497(1), Cr.P.C. And in support of her contentions she has relied upon the cases reported as 2002 PCr.LJ 971, 2000 PCr.LJ 1870 and 2000 PCr.LJ 4.
6. ' I have given anxious consideration to the arguments of learned counsel for the parties and have gone through the record as well as case-law relied upon by the learned counsel for the parties.
7. Admittedly, the applicant/accused and co-accused were arrested at the spot at day tinic and a huge quantity of Charas, i.e. 200 Kgs. Have been recovered from the Suzuki pick-up which was in their possession at the time of recovery. So far the association of private witness at the time of recovery is concerned it is a matter of common knowledge that due to fear of enmity people do hesitate to be the witness in cases of such nature. The learned counsel for applicant/accused has failed to prove mala fide of the Excise Police. The witnesses have fully supported the version of complainant. 200 Kgs. Of Charas have been recovered which cannot be foisted upon a person.
8. Furthermore the driver has also implicated the present applicant/accused. The punishment provided for the offence falls under the prohibitory clause of section 497, Cr.P.C. And embargo contained in subsection (1) of section 51 of Control of Narcotic Substances Act, 1997, is fully attracted to the case in hand and this is an offence which is against the society at large and is going to be increased day by day. In a case reported in 2007 SCMR 830 it is held by Honourable apex Court that non-ci' g of any witness from the public was not fatal to prosecution. So far the case-law relied upon by the learned counsel for the applicant/ ccused is concerned the same are distinguishable to the facts of present case. Even otherwise, it is settled law that every criminal case is to beecided on its own merits.
9. ' In view of above I see no merits in this bail application which is dismissed, accordingly.