1. AQEEL AHMAD ABBASI, J.---Being aggrieved and dissatisfied with the ordef dated 5-6-2010 passed by the learned Special Court-I (Control of Narcotic Substances) Karachi, in Special Case No.147 of 2009, whereby the bail application of the present applicants/ accused was dismissed, the applicants have preferred this bail application before this Court under section 497, Cr.P.C.
2. Brief facts of the prosecution case as stated in the F.I.R. Are that on 14-10-2009 Sub-Inspector Abid Raza Shah of P.S. ANF-1, Karachi, was present at Police Station, spy informed the highups of the ANF that notorious Narcotics peddler Inayatullah along with his companion had brought huge quantity of Charras in the secret cavity of Bus bearing Registration No. K-3780 from Peshawar to Karachi and at present they are available at Vadee-e-Hussain near Tool Plaza, Karachi, and taken out the Charras from the secret cavity of the bus, on immediate action they should be apprehended red handed. On receipt of this information and on the instructions of highup Sub-Inspector Abid Raza Shah constituted a raiding party consisting of HC Ali Sher, PC Mehmoob Hussain, PC Muhammad Waseem, Nike Muhammad Ashraf, PC Jamil driver Mateen and other ANF staff were proceeded from P.S. In official vehicle vide entry No.10, at about 0100 hours and reached to the pointed place at 0130 hours where they found the pointed bus was parked and a person was standing near the driving side, on seeing the police party he started to run away and made escape good, they entered into the bus and found three persons inside the bus and were busy in taking out the yellow colour packets from the secret cavity of the roof of the bus, and some packets are lying on the floor of the bus, they apprehended them on the spot. On inquiry apprehended persons disclosed their name as Inayatullah son of Azeem Khan residence of Peshawar presently residing at Sohrab Goth, Karachi, Aftab Khan son of Aya Khan residence of Gulshan-eMaymar, Karachi, Visal Hussain son of Akbar Hussain residence of Peshawar. Their person search was taken place. On search of accused Inayatullah, key of the bus, cash Rs.5,675, once CNIC, mobile phone, one .30 bore pistol with magazine and five rounds were secured. On search of accused Aftab Cash Rs.300 one mobile phone with sim, one key were secured. On search of accused Visal Hussain cash Rs.2,750, one mobile phone, one purse containing some visiting cards were secured. Accused were arrested accordingly. The apprehended persons disclosed the name of the escapee as Wahid Shah Afridi @ Sheena son of Yazir Shah Afridi residence of Barah Khyber Agency. The Charras recovered from the secret cavity of the bus was in shape of packets. They weighed the recovered packets of Charras which became 103.750 Kgs. Such Musheernama of recovery and arrest was prepared on the spot.
3. Complainant had drawn the sample weighing 10 grams from each recovery and sealed from chemical examiner. After observing all formalities accused and case property were brought at P.S. Where this case was registered against the accused. The chemical report was received in positive.
4. On completion of investigation challan was submitted before the Court.
5. It is inter alia contended by the learned counsel for applicant that the applicants/accused are innocent and have been falsely implicated in this case.- It is contended that no narcotics and contraband have been recovered from the possession of the applicants, whereas: the alleged recovery is affected from the secret cavity of the bus in the shapes of packets. Learned counsel further submitted that there is violation of provision of section 21 of Control of Narcotic Substances Act, 1997, as well as violation of section 103, Cr.P.C. As no search warrant was obtained nor private witnesses of the recovery have been associated by the prosecution. It was contended that the raid is allegedly conducted on some spy information and the prosecution had sufficient time to comply with section 21 of CNS, Act, as well as section 103, Cr.P.C. Per learned counsel, the prosecution has failed to identify the quantity of the charras recovered from each applicant/accused, hence the case of the prosecution is doubtful and requires further inquiry. It is further contended that the complainant and the I.O. Are the same person which is violative of section 18 of Police Order 2002.
6. In support of his arguments, learned counsel has relied upon the following case law:--
(1) Muhammad Farooq Khan v. The State 2007 PCr.LJ 89
(2) Dildar Ali v. The State 2009 MLD 133
(3) Abdali Shah v. The State PLD 2008 Kar. 57
(4) Pir Bux and another v. The State 2007 MLD 1696
(5) Nazeer Ahmed v. The State PLD 2009 Karachi 191
(6) Agha Qais v. The State 2009 PCr,LJ (Lahore) 1334 (7) State through A.G. Sindh v. Hemjoo 2003 SCMR 881
(8) Ashfaq Ahmed v. The State PLD 2008 Pesh. 59
(9) Jan Alam v. The State 2009 YLR 1724
(10) Sakina Bibi v. The State 2008 SCMR 1111 Conversely, the learned Special Prosecutor for ANF has opposed the bail application on the ground that the applicants/accused have been arrested red handed along with narcotics/contraband on spy information after complying with all the legal requirements. It is further contended that the recovery has been effected from joint possession of the applicants/accused persons and samples were drawn from each packets and sent for chemical examination as per law. Chemical report has been submitted which confirmed the prosecution case. As regards objection relating to non- compliance of sections 20 and 21 of CNS, Act, the learned Special Prosecutor submits that such objection is misconceived as the bus was found parked at the road side, whereas the present applicants/accused were found inside the bus and were busy in taking out the yellow colour packet from the secret cavity of the roof of the bus. The applicants/accused were arrested red- handed at the spot and there is no iota of doubt that the applicants/accused were involved in the instant crime. As regards objection regarding violation of non-compliance of provision of section 103, Cr.P.C. The learned Special Prosecutor has referred to the provision of section 25 of CNS Act, whereby the application of section 103, Cr.P.C. In Narcotics case has been excluded. Per learned Special Prosecutor, there is sufficient material against the applicants/accused connecting them with the alleged crime, hence the applicants/accused are not entitled to concession of bail. The learned Special Prosecutor in support of her contention has placed reliance on the case reported as Zafar v. The State 2008 SCMR 1254. Learned Special Prosecutor has also placed reliance on an unreported recent judgment of this Court i.e., Bail Application No. 748 of 2009 Syed Rehman Shah v.
7. The State.
8. I have heard the arguments of both the learned counsel and perused the record. It appears that the present applicants/accused persons have been arrested red-handed on the spot by the raiding party, who recovered the narcotics contrabands from the joint possession of the applicants/accused person, which was being taken out from the secret cavity of the bus. It further appears that the witnesses of the raid and mashirs of the recovery are the police official, who support the case of the prosecution. Objection against the prosecution for not associating the private witnesses of the raid conducted and of the recovery memo. As well as mashirs of recovery has been raised, however, no allegation of mala fide on the part of the prosecution has been raised by the learned counsel for the applicants/accused. No previous enmity has been alleged, even otherwise it is not conceivable as to why such huge quantity of narcotics/contraband may be foisted upon the applicants accused. From bare perusal of sections 20, 21 and 25 of CNS, Act, it appears that the objections raised by the applicants/accused about non-compliance of sections 20, 21 and 25 of CNS, Act, as well as provision of section 103, Cr.P.C. Are misconceived in facts and law. In the reported case of Zafar v. The State 2008 SCMR 1254 larger Bench of Hon'ble Supreme Court has held that in view of section 25 of the CNS. Act, the application of section 103, Cr.P.C. In narcotics cases has been excluded. It has further been held that non-inclusion of any private witness is not a serious defect to vitiate the legal proceedings under CNS Act. It has been further held in the same judgment that provisions of sections 20, 21 and 22 of Control of Narcotic Substances Act, 1997, being directory, hence noncompliance would not be a ground for holding, trial/conviction bad in the eyes of law. While, reaching to this conclusion the Hon'ble Supreme Court has placed reliance on the earlier reported cases i.e. Fida Jan v. The State 2001 SCMR 36, State through A.-G. Sindh v. Hemjoo 2003 SCMR 881, Karl John Joseph v. The State PLD 2004 SC 394 and Muhammad Younas v. Mst. Perveen alias Mano and others 2007 SCMR 393. Another Bench of this Court in its recent order dated 5-7-2010 in Criminal Bail Application No. 748 of 2009 Syed Rehman Shah v. The State has dismissed the bail application on some what similar facts and circumstances as of the instant case. The case law referred and relied upon by the learned counsel for the applicants on the subject are distinguishable and not relevant in view of the facts of the instant case hence reliance in this regards appears to be misplaced. I am further fortified in my view by two recent judgments of Hon'ble Supreme Court on the subject, reported as Ismaeel v. The State 2010 SCMR 27 and Muhammad Noor and others v. The State 2010 SCMR 927.
9. In view of hereinabove facts and on perusal of the case law on the point I am of the view that there is sufficient material available against the present applicants/accused connecting them with the alleged crime. Moreover, recovery has been effected from their joint possession. It appears that the applicants/accused are not entitled to the concession of bail at this stage which is accordingly dismissed.
10. Needless to observe that the observations made hereinabove are tentative in nature and trial Court shall not be prejudiced by any such observations and shall decide the case strictly on merits as expeditiously as possible, keeping in view the National Judicial Policy 2009.