1. ORDER MUHAMMAD TASNIM, J.--- Through instant application the applicant/ accused Qamar Hussain seeks bail in Crime No.11 of 2011 for the offence under sections 6/9-B of the Control of Narcotic Substances Act, 1997 by Police Station A.N.F., Clifton, Karachi.
2. In the first place the applicant/ accused approached the learned trial Court for grant of bail, but the same has been dismissed by order dated 19-2-2011.
3. The prosecution story as per F.I.R. Is, that on telephone spy information S.-I. Khalid Rasheed along with A.S.-I. Abdul Talib, H.C. Ghulam Muhammad, P.C. Zafar Iqbal, P.C. Muhammad Waseem, P.C.
4. Muhammad Aslam and other officials in the evening reached at outside International Departure, Jinnah International Airport, Karachi where on the pointation of informer one Qamar Hussain was apprehended by the officials and was detained and memo of arrest was prepared but no private witness was associated as they declined on account of fear being involved in smuggling case. It is the case of prosecution two Passports Nos.BR-6895341 and BR-6895342, Air Ticket No.214-212- 386776, one Faisal Bank Card, one Alfalah Card and cash of US $ 900, China Yuan 1300 and Pakistani Rs.1,310, Mobile Phone of Nokia 2690 with sim, mobile phone of China with sim, one golden and silver rings were recovered from the possession of the present accused. Apart from above, one black colour travelling bag was also recovered from his possession. On taking X-ray at Nihal Hospital it was found that capsules containing heroin are in the stomach of the applicant/accused.
5. After X-ray he was shifted to Jinnah Hospital for further treatment where MLO Dr. Muhammad Tayyab after examining X-ray report confirmed the availability of capsules of the heroin in the stomach of the applicant/accused.
6. Learned counsel appearing on behalf of the applicant/accused submits that as many as three memos were prepared by the prosecution, first with regard to the arrest and two with regard to the alleged recovery of capsules containing heroin but in all the memos no private person was associated as witness. He further submits that two memos were prepared at Jinnah Hospital where apart from the doctors hospital staff was available, but no one was cited as witness while preparing the memo. Per learned counsel, there was delay of four days in preparing second memo with regard to the recovery of capsules and such delay has not been explained by the prosecution.
7. Per learned counsel, as per challan 860 grams of heroin were allegedly recovered from the capsules which was in the stomach of the applicant/accused. Per learned counsel, the Chemical Examiner's report shows that 733 grams of heroin were allegedly recovered. According to the learned counsel, third memo after getting C.T. Scan was prepared on 24-1-2011, but no private person was associated as witness as well. He further submits that there is inconsistency in the statement made by the doctor which was recorded by the A.N.F. Authority under section 161, Cr.P.C.
8. In support of his contention learned counsel for the applicant/accused has relied upon a Full Bench Judgment of the Lahore High Court in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 363), Waheed Raza v. The State (SBLR 2011 Sindh 439), Muhammad Shahid v. The State (2009 YLR 167), Akhtar Jan v. State 2009 YLR 45 Asghar Ali v. The State (2009 PCr.LJ 660) and Ghafoor Ahmed v. The State (2009 YLR 123). Learned counsel submits that no doubt law provides maximum punishment of seven years in a case where upto than 1000 grams of heroin was allegedly recovered, but in view of the Judgment of Full Bench of Lahore High Court in the case of Ghulam Murtaza (supra) as per schedule punishment comes to one year and ten months. Learned counsel further submits that there is discrepancy in weight of heroin allegedly recovered from the present applicant as stated above which creates doubt in the prosecution case and benefit of such doubt be extended to the applicant/accused and he may be enlarged on bail.
9. Conversely, learned Special Prosecutor appearing on behalf of the A.N.F. Submits that the involvement of applicant/accused is supported by the statement made by the witness. He further submits that 106 capsules of heroin were recovered from the stomach of the applicant accused which weight about 860 grams and the maximum punishment in the circumstances would be seven years. He further contends that in terms of section 25 of the C.N.S. Act, it is not necessary that some private person is to be associated as witness at the time when such memos were prepared.
10. I have heard the learned counsel for the parties and perused the record of this case as well as case-laws cited at bar.
11. It is well-settled principle of law that at bail stage deeper appreciation of the record cannot be gone into but only tentative assessment is to be made just to find out as to whether the present applicant/accused is prima facie connected with the commission of the offence or not. Keeping in view the above settled principle and the judgment of the Hon'ble Supreme Court of Pakistan in the case of Hakim Mumtaz Ahmed and others v. The State (PLD 2002 SC 590) in mind, the prosecution must have associated some private person as witness during the entire process of apprehending and recovering the alleged heroin. It is an admitted position that first memo. Of arrest was prepared at the spot but no private person was associated as witness. The second memo was prepared after the recovery of capsules on 24-1-2011 at 1300 hours after about four-days delay of the arrest of the applicant/accused. No plausible explanation has been furnished by the prosecution. There is also discrepancy in weight, as according to the challan, recovery has been shown as 860 grams, whereas Chemical Examiner's report reflects that recovered substance 733 grams, even otherwise, in view of the judgment of Full Bench of the Lahore High Court as referred above, maximum punishment for the alleged recovered heroin would be one year and 10 months which does not fall within the prohibitory clause.
12. In the case cited by the learned counsel for applicant/accused a learned Division Bench of this Court with regard to the citing private witness at the time of recovery has observed as under:- "Though private persons are not required to witness the recovery of Narcotics substance as provided under C.N.S. Act yet the place of recovery and the time of recovery has to be kept in view to prevent false implication of innocent people, looking to the general conduct of police. The maximum offence is 7 years which does not fall within the prohibitory clause contained under section 497, Cr.P.C. The accused is behind bars since last four months. Keeping in view the peculiar circumstances of the case we are inclined to grant bail to the applicant."
13. The above judgment is fully applicable to present case as maximum punishment is seven years, which does not fall within the prohibitory clause. In the. Present case as well no private witness was associated at the time of alleged recovery. From the perusal of the F.I.R. And Chemical. Examiner's report it appears that there is discrepancy in weight of heroin recovered. The discrepancy in weight of heroin creates doubt with regard to the alleged recovery.
14. In the case of Hakim Mumtaz Ahmed (supra) the Hon'ble Supreme Court of Pakistan has held as under:-- "Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused. Allegations against accused, thus, needed further enquiry."
15. In this view of the matter, I find that the case of the prosecution requires further enquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, I admit the applicant/accused on bail subject to furnishing surety in the sum of Rs.100,000 (Rupees One Lac only) with P.R. Bond in the like amount to the satisfaction of the trial Court.
16. The observations made herein above are tentative in nature and shall not affect the merits of the case triable by the trial Court.
17. This bail application stands disposed of in the above terms..