1. IMAM BUX BALOCH, J.---The prosecution case in precise is that on 11-12-2010 the complainant S.-I.
2. Muhammad Akram was on patrolling duty where he received a spy information that two persons travelling in Jeep No, BA-4362 Prado colour silver coming from Lee Shah Nawaz Bhutto Chowk towards Old Golimar carrying some narcotics. After receiving such information the complainant along with other proceeded and reached at 2345 hours and saw that the said vehicle is coming towards Rexer Line Shahnawaz Bhutto Chowk. The Jeep was stopped and the two persons were got down from the said vehicle, who disclosed their names as Muhammad Afzal son of Wali Muhammad and Abdul Rauf son of Muhammad Rafique. Muhammad Afzal was driving the vehicle and his personal search was made and so also the vehicle was also searched. From the personal search of Muhammad Afzal the complainant recovered one Mobile Nokia 1661 black colour, one mobile phone china Maker 102 Black colour, one wallet black colour of leather, Driving License, MC Driving License, Photo, copy of CNIC, CDGK Card, cash amount of Rs, 280 and two packets of charras weighing 2000 gms in plastic bags which was recovered from under driving seat of the said jeep and from Abdul Rauf one Mobile Phone Nokia 6300 (Camera) Black colour cash of Rs, 720.
3. From the front seat of jeep where applicant/accused Abdul Rauf was sitting 2000 gms of charras were recovered which were muffled in plastic bag. From each bag and from each slab 50+50 grams of charras total 100 grains were sealed among the recovery from the possession of the applicant/ accused Muhammad Afzal and the charras recovered from Abdul Rauf 50+50 grams total 100 grams of charras from each slab were separated for chemical examination. The Mashirnama was prepared with the signatures of police officials who were present with the complainant.
4. After usual investigation the challan put up before the learned trial Court. An application was moved on behalf of the applicants in the learned trial Court which was dismissed vide order dated 17-1-2011.
5. The learned counsel for the applicants contended that the applicants have been falsely involved due to political rivalry. It is further contended that in fact rangers has arrested the applicants on 10- 12-2010 at 5-45 hours and. Advocate Muhammad Ali the nephew of applicant Muhammad Afzal has submitted application to the S.H.O Police Station Pak Colony on the same date at 8-45 p.m.
6. This application has been received and stamped by S.H.O Police Station Pak Colony, Karachi. It is further contended that no narcotics were recovered from the possession of the applicants/accused. It is contended on behalf of the applicants/accused that no private person has been cited as witness though the alleged recoveries were made at a thickly populated place. It is contended that the applicant No,1 is Senior Vice President of Pakistan Muslim League (Functional) of the area having enmity with the area political persons and the police and on bias of such person has involved the applicant and his driver in a false case of narcotics. The learned counsel has placed reliance on the cases of Khuda Bux v. The State (2010 SCM R 1160), Criminal Bail Application No, 1327/2010 Re. Ali Hassan son of Jaro Khan v. The State, Ali Khan Kalhoro v. The State (2010 PCr.LJ 1087) and Ziarat Khan v. The State (2010 M LD 1908). The learned counsel has summed up his arguments that the case of the applicants/accused falls under the purview of further inquiry as contemplated under section 497(2), Cr.P.C.
7. On the other hand, the learned Assistant Prosecutor-General vehemently opposes the grant of bail and contended that there is no enmity of the complainant with the applicants. On spy information the complainant recovered the narcotics substances from the jeep driven by the applicant/accused Muhammad Afzal and from the driving seat 2000 grams of charras were recovered and from the seat where co-accused Abdul Rauf was sitting 2000 grams charras has been recovered. It is further contended by the learned A.P.-G. that there is no record of application at the police station Pak Colony and the seal on the application is managed one. He further contended that complainant and S.H.O. Police Station Pak Colony are present in court and both of them have denied the existence of such application. The learned A.P.-G. further states that the applicants/ accused are running den of narcotics in the area, law enforcing agencies are unable to conduct any raid at such place due to influence of the applicants/accused. He further contended that the case falls under the prohibitory claue of section 497, Cr.P.C.
8. I have considered the arguments of the counsel for the parties and gone through the law cited by the learned counsel for the applicants/accused, in case of Khuda Bux supra the Hon' ble Supreme Court of Pakistan has observed as under:-- "Perusal of record in the light of the arguments advanced before us and a plain reading of the F.I.R shows that six separate pieces were recovered. Two pieces weighing about 50 grams were forwarded for chemical examination which prima facie do not appear either to be random or representative sample.
9. The question of imposition of maximum sentence under the circumstances is to be determined during trial. Petitioner has already remained under custody for over 9 months.
10. In the case of Nadir Khan (supra) involving recovery of 49 bags of narcotics substance it was held that in view of the large number of bags it was not necessary to take sample . from each bag. The samples drawn in a random manner from different bags constituted representative samples. We are in respectful agreement with the view however, two separate pieces not drawn from the large pieces as is reflected in the F.I.R. can hardly be considered as representative sample drawn from the quantity recovered, therefore, this case is distinguishable on fact."
11. In case of Ziarat Khan (Supra) it is held that:-- "I am in full agreement with the learned D.P.-G. that in cases which fall within the exception 'to section 497, Cr.P.C. or 51 of Control of Narcotic Substances, Act, bail cannot be granted by the Court. However, this Court while hearing the bail application has to determine without going into deeper appreciation of evidence whether a prima facie case has been made out for establishing that the applicant has been implicated in the case on the basis of mala fide of enmity existing and whether there is some prima facie evidence which may require further inquiry.
12. This Court has the jurisdiction and authority to grant bail in cases, where the applicant/accused has made out a case of mala fide and this has been held by a Division Bench of this Court in the case of Imtiaz Ali v. The State quoted supra wherein this Court held that whenever accused was able to show by cogent reason the possibility of his false involvement in case it can be considered a good case for grant of bail. Without investigating at the moment as to whether contention of PC Waheed that he had made those seven calls because of his relationship with the applicant and the fact that the S.H.O Mangopir was present before this Court has admitted that once or twice in the past much before 18-8-2009 the applicant had visited Police Station Mangopir because of involvement in some kind of cases and also looking at the report of Mobilink wherein it is stated that no phone call was received by or made by mobile belonging to applicant after 8-4 p.m on 18- 8-2009 despite the fact that he was arrested on 11-30 a.m. and also on the factual position that such heavy lead of heroin was being taken by the applicant and his companion without possessing any fire arms as no fire arm was recovered by the police from them and the fact that they had not tried to rush away when stopped by the police and stopped at their signal as mentioned in F.I.R. I am of the considered View that a prima facie case subject to further inquiry to be made, has been made out that the applicant may have been implicated on the basis of his previous attitude and altercation with police authority. I am therefore, of the considered opinion that the applicant is entitled to bail. I therefore, admit the applicant to bail subject to furnishing two solvent sureties in, the sum of Rs,5,00,000 (Rupees Five Lacs) each and personal, bond in the like amount to the satisfaction of the .trial Court." and in case of Ali Khan Kalhoro (supra) it is observed that:-- I have carefully considered the submissions placed by learned counsel for the parties and perused the material brought on record. It seems that at the time of arrest, the applicant was carrying black plastic bag from which allegedly 11.00 grams charas was secured in the shape of different pieces out of which 200 grams were separated for chemical analysis. It is consistent view being taken by the honourable Apex Court while granting bail that at the bail stage, amount of narcotics is to be taken in mind from which sample has been obtained and not the entire lot which has allegedly been recovered. Besides this, when the punishment is provided on the basis of quantum of recovery of narcotics then it should be main criteria, for the prosecution to establish that entire recovered substance is a narcotics etc., which, at least in the case in hand, could be determined at the trial as there is no mention in the F.I.R. whether the sample was taken from each piece of narcotics substance or not and even the shape, size and number of pieces of alleged contraband is not disclosed in the F.I.R. It is to be considered, that the slight increase in the quantum of narcotics substances could enhance the punishment exorbitantly and even sentence of death could be provided therefore when slight change in the quantum of substance was affecting very seriously the life of human being the allegation of prosecution in respect of recovery of specific substances, was to be checked very strictly and to be proved beyond doubt, to which the trial Court failed to appreciate while declining the bail plea to the applicant. If any authority is needed, in the circumstances of the case, one may refer to a full bench judgment passed by the honourable Apex Court in the case of Muhammad Hashim v. The State PLD 2004 SC 856 and a Division Bench decision in the case of Nadeem v. The State 2007 M LD 1092."
13. In unreported order of Ali Hassan it is observed as under:-- "Learned Prosecutor General has referred to the Judgment wherein reference was made to section 15 of the Control of Narcotic Substances Act, 1997 to contend that bail cannot be granted in narcotic cases where the offence is punishable with death. It was further asserted that since the applicant was found in possession of 3 Kgs of, chants and has been charged under section 9(c) of the Act, 1997, punishment whereof is death or imprisonment for life or imprisonment for a. term which may extend 14 years and, therefore, there is a statutory bar against the grant of bail. To this contention it would be suffice to observe that at the time of granting bail the minimum sentence prescribed by a statute for the offence with which the accused is charged is to be considered and since under the provisions of section 9(c) of the Act 1997 the recovery of narcotics substances exceeding 1 Kg uptil 10 Kgs is visited with the minimum punishment of 14 years, therefore, in my opinion such bar would not apply to the cases where the recovery of narcotics substance is. 10 Kgs or less. It is further by now well settled principle of law that in cases where an accused succeeds in making out a case where the chances of his false implication cannot be ruled out by Courts would never hesitate to extend the concession of bail, not-withstanding, statutory bar though by exercising constitutional jurisdiction."
14. I have gone through the citations even the case of Ali Khan Kalhoro supra which is authored by me the facts and circumstances of the cited case are distinguishable from the facts and circumstances of the present case. In the instant case the charas was recovered from the Jeep which was driven by applicant No,1 Muhammad Afzal and Abdul Rauf, who is alleged to be driver of Muhammad Afzal. The samples have been taken from each packet as evident from the Mushirnama of arrest and recovery. It is yet to be seen in the trial whether the applicants have been falsely implicated due to some political enmity which requires evidence and it is well settled that at bail stage only tentative assessment is to be made by the Court. At this stage it cannot be said that the applicants have been falsely implicated in a false case.
15. In the circumstances, I am of the considered view that the applicants have not made out a case for further inquiry, consequently this Criminal Bail Application is dismissed.