SALMAN HAMID, J.---Mr. Gada Ali, the present applicant's Bail Application No.219 of 2010, having been dismissed by the Special Judge for Control of Narcotic Substances, Larkana, in terms of his Order dated 25-5-2010, present bail application has been moved.
2. According to the contents of case F.I.R. No.4 of 2007 of Police Station ANF Sukkur, lodged under section 9(c) Control of Narcotic Substances Act, 1997, (C.N.S. Act) the case is that on 1-6-2007, the raiding police of Police Station ANF Sukkur, upon spy information reached the applicant's Otaq at Larkana around 4-00 p.m. After making necessary entries at Police Station ANF Sukkur. When the raiding police reached near main gate of Otaq, they noticed that two persons were coming out therefrom on two motorcycles. These two persons were apprehended by the raiding police and were identified as Abdul Rahim and Gada Ali, the present applicant. One person, other than the two mentioned above, managed to escape after scaling Otaq wall. Contents of the F.I.R further show that 4.4 kilograms charas (contraband) was recovered from the motorcycle, which the applicant was riding. From personal search of other motorcycle driver namely Abdul Rahim, one packet of charas weighing 1100 grams was recovered from the motorcycle. The raiding police in the company of applicant went inside the Otaq and found heavy quantity of contraband, packed in separate packets weighing 1100 grams each. After securing the contraband; samples weighing 10 grams was obtained from each packet for chemical analysis. Requisite numbers were allotted to such packets and were signed and sealed. Motorcycles were secured in police custody and requisite memo was prepared.
3. After above recovery of contraband F.I.R. Under section 9(c) of C.N.S. Act was registered against the applicant and Abdul Rahim.
4. Erudite counsel for the applicant argued that the case against him was false and he has been implicated due to enmity and suspicion. It was also argued that contraband/case property has been tampered with and manipulated in connivance with the staff of the trial Court and that .Enquiry in such regard was also ordered by the trial Court. It was therefore, argued that since the contraband/case property has been tampered with and manipulated, there is no chance of conviction of the applicant.
5. Raising the ground of hardship, it was argued that the applicant was arrested on 1-6-2007 and despite long period of time, the case has not been concluded. Therefore, it was argued that the applicant is entitled to be released on bail.
6. Though in the application only the above two grounds were raised, at the time of arguments, it was urged that the raiding party from Sukkur, raiding in Larkana had no jurisdiction and that no entry in respect thereof in Larkana was made. Provisions of sections 20 and 21 of the C.N.S. Act, it was argued, had been violated; and that during investigation no evidence was collected from the prosecution side that the Otaq and/or the contraband belonged to the applicant; and that no person was taken as a witness from the village and/or Otaq, where the raid was made.
7. In support of above contentions, learned counsel relied upon the case of Gul Zaman v. The State (1999 SCM R .1271), and the case of Sakina Bibi v. The State (2008 SCM R 1111), and that of Muhammadullah v. The State (2009 SCM R 954).
8. Learned counsel who appeared on behalf of ANF argued that prior in time bail application was moved on behalf of the applicant before the High Court and the same was dismissed. However, nothing on cord to such effect was brought forth. Combating the argument that the Applicant has been implicated in the case due to enmity and suspicion, it was argued that nothing has been brought on record to substantiate such an allegation. It was argued that it is not the case of suspicion inasmuch as that the applicant was arrested on the spot and was found in possession of contraband and that further recovery of contraband was made from the Otaq in his presence.
Regarding enmity it was argued that such ground is frivolous and the police had no enmity whatsoever.
9. As to the ground of hardship, it was argued that on various occasions, such as on 17-4-2010 and 3-5-2010 the case was adjourned for want of applicant's counsel. It was thus argued that the prosecution cannot be entirely blamed or held responsible for delay in prosecuting the case.
Meeting the argument of jurisdiction, Gazette Notification No.4- 4/98-ANF, dated 12th June, 2002, issued under subsection (9) of section 6 of Anti-Narcotic Force Act, 1997, (Act III of 1997), was brought on record, wherein the Federal Government was pleased to declare the various premises as Police Stations of Anti-Narcotics Force within the areas of their respective jurisdictions. At serial No. 14, of such Notification, office of ANF, Police Station Sukkur was shown/included which has the jurisdiction in the areas of Larkana and. Sukkur Divisions. Such being the case, it was argued that the ground as raised by the learned counsel for the applicant was lame and of no significance.
10. Adverting to the argument of the violation of sections 20 and 21 of the C.N.S. Act, it was argued that under section 25 thereof provisions of Code of Criminal Procedure, except those of section 103 shall mutatis mutandis apply to all searches and arrest and so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrest and searches made under these sections. To the argument of tampering with the case property, it was stated that, in the first instance the tampering is not attributed against the personnel of ANF and secondly such argument cannot be looked into at the bail stage. As to the ground of witnesses, it was argued that police witnesses are as good as independent witnesses as long as the requirements of law were met. It was mentioned that no violation of law was made. As to the ownership of Otaq, it was argued that the burden thereof was on the applicant, which was not discharged. Even otherwise, it was agued that such ground cannot be looked into at the stage of bail, and is a ground to be decided at final stage of the proceedings.
11. Heard arguments, perused the record and the case-law cited.
12. Section 2(c) of C.N.S. Act, gives the definition of an Associate. Associate in relation to an accused means (i) any individual who is or has at the relevant time been ordinarily residing in the residential premises, including our houses, and servant quarters of an accused, (ii) any individual who has it has at the relevant time been managing the affairs or keeping the accounts of an accused, and (vi) where a Special Court, for reasons to be recorded, considers that any property of an accused is held on his behalf by any other person, such other, person. Sub-clause (z) of C.N.S. Act, defines, property which includes among others (ii) property used or intended to be used to commit or to abate the commission of an offence punishable under the C.N.S. Act. Sub-clause (zb) gives the definition of relatives in relation to accused the spouse or any lineal on descendants of the accused and includes any other person holding property for and on his behalf.
13. Section 6 of C.N.S. Act, speaks of prohibition of possession of narcotic drugs etc. Whereas section 9 speaks of punishment for contravention of sections 6, 7 and 8. In the present case, as reflected in the F.I.R, the case under section 6 of C.N.S. Act having been made out F.I.R under section 9(c) was lodged.
14. Section 14 of C.N.S. Act, speaks about prohibition on aiding, abatement or association in narcotic offences and says that no one shall within or outside Pakistan participate in, associate or conspire to commit, attempt to commit, aid, abate, facilitate, incite, induce or counsel the commission of an offence punishable under the C.N.S. Act.
15. Section 19 speaks about the forfeiture of .Assets of an offender and where the special Court finds a person guilty of an offence punishable under C.N.S. Act, and is sentenced to imprisonment for a term exceeding three years, did Court shall also order that his assets derivable from trafficking in narcotic substances shall stand forfeited to the Federal Government, unless it is satisfied, for which the burden of proof shall rest on the accused that such property has not been 'acquired by him because of the activities involving the business of contraband.
16. A brief trace of the above sections was necessary inasmuch as that it was argued by the learned counsel for the applicant that no recovery was made from the applicant and that he has been implicated in the case due to enmity and suspicion. The ground of enmity and suspicion as was raised by the learned counsel for the applicant was denied by the learned counsel for ANF, by arguing that the question of suspicion does not arise as the applicant was arrested on the spot, in possession of contraband found on his motorcycle and that in his presence further contraband was seized, which was huge and weighed 379.5 kilograms. Therefore, the question of suspicion does not arise and that the raiding police had no enmity with the applicant. Even if for the time being the ground as raised by the learned counsel for the applicant is taken to be correct, which was specifically and vehemently denied by the learned counsel for ANF, such ground do not save the applicant from the mischief of sub-clause (c) of section 2 of C.N.S. Act, which speaks about an associate. By virtue of sub-clause (vi), of clause (c) of section 2 of the C.N.S. Act, where the Special Court, for reasons to be recorded, considers that any property of an accused is held on his behalf by any other person, such other person shall be deemed to be an associate and therefore, fall prey to the mischief of the provisions of the C.N.S. Act. Looking at the contents of the F.I.R, one can tentatively come to the conclusion that the applicant falls within the meaning of an Associate A who was in possession of contraband, if not in his own capacity atleast in the capacity of an associate. Similarly, it has also come on record that the motorcycle which the applicant was riding also held on it contraband in excess of the limit as provided under section 9(c) of C.N.S. Act, i.e. More than 100 grams, and also exceeded more than one kilogram. To be exact, the quantity which was obtained and/or recovered from the motorcycle which the applicant was riding was 4.4 kilograms.
17. Since, as per sub-clause (z) of section 2 of C.N.S. Act, property includes all forms of property, whether corporal or incorporeal, movable or immovable, tangible or intangible, real estate or personal property of every description and also a property used or intended to be used to commit or to abet the commission of an offence punishable under this Act, and the fact that the applicant was found riding the motorcycle, on which more than 4.4 kilograms of contraband was found, the applicant prima facie again falls mischief to such definition and falls within the provisions of the C.N.S. Act.
18. As to the ground that the property and/or Otaq from where the contraband was recovered and seized does not belong to him cannot be B looked into at the bail stage, more particularly when it is the burden of the applicant to prove that Otaq does not belong to him.
19. Coming to the violation of sections 20 and 21 of the C.N.S. Act, suffice it to mention that the very tongue of these sections would show that the provisions thereof are not mandatory but only directory in nature C and therefore, strict non-adherence thereof is not fatal. If any authority on this is required, then it is the case of Karl John Joseph v. The State (PLD 2004 SC 394), and that of Zafar v. The State (2008 SCM R 1254). Moreover, since there was an element to urgency, under the circumstances, warrants having been dispensed with was justified inasmuch as there was apprehension that the raid, which was to be made, would have been foiled and the huge recovery, which has been made in D the present case, could have been totally lost. Looking the case from this angle and also the fact that the compliance of requirement of sections 20 and 21 are directory, I am not inclined to hold that because of noncompliance of the above provision of law the raid was illegal.
20. As to the argument that the independent witnesses had not been taken, suffice it to state that police employees are competent like any other independent witnesses and their testimony cannot be disregarded merely on the ground that they are police employees. If any case is required to substantiate the reasoning, then tl.e case of Muhammad Hanif v. The State- (2003 SCM R 1237), may be looked into. Even otherwise, looking at the precarious condition of the cases of such like nature, no one is willing to come S forward as a witness and there is always reluctance on the part of private persons and help eradicate the menace of the nature which is the subject-matter of this case. Under these circumstances, the evidence of police concerned reminds me of a famous English pro verb "one in the hand is better than two in the bush".
21. While considering the case of applicant for bail, which in the present case has been moved under the provisions of section 497, Cr.P.C. Read with section 51 of C.N.S. Act, it may be noted that where there is general law and the special law on the subject, then provision of F special law would prevail. Since, it is a case under section. 9(c) of C.N.S. Act, the provisions thereof will prevail. Section 51 of the C.N.S. Act, provides as under:- "No bail to be granted in respect of certain offences.---
(1) Notwithstanding anything contained in section 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 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." (emphasis provided)
22. The words appearing in subsection (2) of section 51 of C.N.S. Act, "fit case for grant of bail" has special meaning to it.
23. Reading the above section with section 9(c), C.N.S. Act and its proviso i.e. If no reasonable ground exists to believe that accused was guilty of an offence punishable with death, imprisonment for life, or imprisonment for, a term which may extend to fourteen years and that if the quantity exceeded ten kilograms the punishment shall not be less than imprisonment for life, there exists no reasonable ground to believe that the applicant had a fit case for grant of bail, inasmuch as that the applicant is required to show favourable circumstances to pass the test of, fit case for grant of bail as mentioned in sub-clause (2) of section 51 of C.N.S. Act.
24. Since, in the present case huge amount of contraband weighing 379.5 kilograms is involved, prima facie case of the applicant is not G covered by clause (2) of section 51, C.N.S. Act.
25. In the case of Gul Zaman v. The State, cited by the learned counsel for the applicant, the bail was granted in that case as despite lapse of one and half year, even charge was not framed therein and the accused was enlarged on bail because of such reason, whereas in the present case the case is ripe and it has come on record that that there have been lapses on the part of the applicant as well. In the case of Sakina Bibi v. The State, the search was made in absence of such search warrants of a house of a lady and therefore, she was enlarged on bail. As against this, in the present case, the applicant was apprehended on spot in possession of contraband exceeding 4.4 kilograms and that rest of the contraband was also seized in his presence, total of which comes to 379.5 kilograms. Therefore, the case relied upon by the learned counsel for the applicant is of no help to him. In the case of Muhammadullah v. The State, the bail was granted to the accused by appreciating the fact that the contraband was not recovered directly from the possession of the accused and the same was recovered from the cabin, made on the roof of the bus and to see whether the cabin was in the exclusive use of the driver or for the passengers being a factual controversy the accused was enlarged on bail. However, in the present case, as already observed above, the contraband was recovered on spot, from the applicant. Therefore, this case too is not of any assistance to the applicant.
26. Notification having been produced, the argument that raid was made by ANF Sukkur is of no significance and the same is over-ruled.
27. Before parting with this decision and looking at the grievance of the applicant that no progress is made in his case, the trial Court is directed to proceed with the matter expeditiously, preferably day to day and conclude the trial within a period of 60 days from the date of receipt of this Order and furnish compliance report to the additional registrar of this court after conclusion of the case within the stipulated period. This will take care of the ground of hardship raised by the learned counsel for the applicant.
28. For the reasons mentioned above, I find no merits in the present bail application and dismiss the same, being meritless.
29. In no way this decision shall influence the independent mind of the trial court in delivering the judgment in the case of the applicant pending before it.