1. ' HABIB-UR-REHMAN SHAIKH, J.---Through this bail application, applicant seeks bail in a case culminated from F.I.R. No,1 of 2011 of Excise Police Station Gambat registered for offence under sections 6, 8, 9(c), Control of Narcotic Substances Act, 1997.
2. ' The prosecution story in nutshell germane to the present bail application is that the alleged incident had taken place on 28-1-2011 and the F.I.R. Was lodged on the same day. As per prosecution case Excise Inspector Mushtaque Ahmed Shaikh lodged the F.I.R. At Excise Police Station Gambat wherein the complainant alleged that he along with Excise Constables left their office vide D.D. No,1 for the purpose of checking and signalled to stop dumper truck, the driver disclosed his name Hassan Khan. And Nabi Gul disclosed himself as second driver and recovery 100 plastic roles from the secrete cavities/khanas containing heroin and same weighed at the spot and became 75 kgs. And 100 grams heroin was segregated from each plastic role as sample and same was sealed at the spot in presence of mashirs. After preparation of such mashirnama the complainant party brought heroin powder, arrested persons and dumper truck at Excise Police Station Gambat and lodged such F.I.R. On behalf of the State.
3. ' After rejection of bail plea of the applicant by the learned Special Judge (CNS) Khairpur by his order dated 11-11-2011, he has moved the instant bail application before this Court.
4. ' Mr. Syed Mushtaque Hussain Shah learned counsel for the applicant stressed his arguments upon merits as well as on the ground of age of the applicant. On merits he contended that the applicant is innocent and has falsely been involved in the present case: that there is delay of six hours in lodging of F.I.R. As the incident was taken place on 28-1-2011 at 0400 hours while the F.I.R. Was registered on the same day at 1000 hours. He further argued that the alleged heroin powder was not recovered from the exclusive possession of the applicant but the same was recovered from the dumber truck. He also argued that the applicant is second driver of the dumper truck in question but no driving license has been secured from him by the police nor any evidence has been collected. He has further argued that the number of dumper truck has not been mentioned in the F.I.R. Which creates doubt the said dumper truck was a stolen one. The learned counsel further argued that the F.I.R. Has not been registered in proper form as prescribed by police rules. With regard to the age of the applicant at the time of incident the learned counsel argued that at the time of alleged incident the applicant was aged about 17 years, as such his case falls within the ambit of Juvenile Justice System Ordinance, 2000. He submits that the trial Court referred the applicant before Medical Board who after examination found the applicant to be aged about 20 years. The applicant dissatisfied with the opinion of Medical Board and on the application of applicant members of the Medical Board were summoned for recording their evidence and in the cross examination the doctors had given contradictory versions in respect of the age of the applicant. The learned counsel argued that despite of the contradictory evidence of member of Medical Board on the point of age still the learned trial Court held that the applicant was not juvenile. The learned counsel lastly contended that the applicant is a student of 10 class and aged about 17 years and he is neither previous convict nor involved in any other case of like nature. The learned counsel for the applicant in support of his contentions has relied upon the following case- law:--
(i) 2012 PCr.LJ 897.
(ii) 2002 SCMR 629
(iii) 1999 SCMR 1271
(iv) 2011 SCMR 165
(v) 2012 SCMR 573
(vi) 2012 YLR 314
(vii) 2012 YLR 1115 ' Conversely Mr. Syed Sardar Ali Shah learned A.P.-G. Vehemently opposed the bail plea of the applicant. He argued that the mashirnama was prepared on the spot and no documentary proof has been shown regarding enmity of the applicant with the complainant party for falsely involvement of the applicant in this case. He further argued that the applicant is involved in a heinous offence which is against the society. With-regard to the plea of applicant regarding minor age of the applicant, the learned A.P.-G. Contended that Medical Board has determined his age to be 20 years and contradictory evidence of doctors before the trial Court in respect of age of the applicant is a question of deeper appreciation which cannot be allowed at the bail stage. In support of his contention he has relied upon the case reported in PLD 2000 SC 813; 1992 PCr.LJ 2458; 2009 YLR 1029; PLD 2009 Karachi 33 and PLD 1994 Karachi 65.
5. ' I have considered the arguments of both the learned counsel and have gone through the file as well as law cited by the respective counsel.
6. ' It will be advantageous to high-light the case-law relied upon by the respective counsel. In a case reported in 2011 SCMR 165 (Supra) a Full Bench of honourable Supreme Court while granting the bail to that accused and setting aside the order of High Court has observed as under:-- "Heroin weighing 1.530 kilogram was recovered from the suitcase of co-accused at the airport.
7. According to said co-accused the suit-case belonged to present accused. Trial Court had granted bail to accused which had been recalled by High Court vide impugned order. Held, trial court had allowed bail to accused after proper examination and appreciation of the facts and the evidence available on record and rightly concluded that the matter requires, further inquiry. No exception could be taken to the observation so made by the trial Court. High Court had cancelled the bail violating the principle embodied in S.497(5), Cr. P. C. And the guidelines laid down by Supreme Court relating to cancellation of bail Order passed by the High Court was arbitrary and whimsical and was set aside. Bail was allowed to accused accordingly."
8. ' In a case reported in 2012 SCMR 573 (Supra), the Hon'ble apex Court while granting bail to that accused has observed as follows:- "Recovery of narcotics. Bail, grant of. Maximum punishment, possibility of involving in other similar cases. Accused contended that Charas weighing 4 kilograms was recovered from path and not from his personal possession, therefore, there was no possibility of maximum sentence provided for the offence. Validity. Court while hearing petition for bail was not to keep in view the maximum sentence provided by statute but the one which was likely to be entailed in the facts and circumstances of the case. Accused had been in jail for three months, yet commencement of his trial let alone its conclusion was not in sight had also tilted scales of justice in favour of bail rather than jail. Involvement of accused in two other cases of similar nature would not come in the way of petitioner, so long as there was nothing on record to show that accused had been convicted in anyone of those. Petition for leave to appeal was converted into appeal and accused was released on bail."
9. ' With regard to the minor age of the applicant, the learned counsel for the applicant has relied upon the case reported in 2012 PCr.LJ 897, in which a Division Bench of Sindh High Court while admitting that accused on bail has held as under:- "Accused who claimed that he was child at the time of occurrence, filed application that his trial be separated from trial of other accused persons. Application was dismissed by the Trial Court.
10. Validity. Medical Board duly constituted gave opinion that age of accused was between 18-19 years at the time of his medical examination. Assuming that the age of accused had been accurately determined by the Medical Board, the alleged incident had taken place 3 months and 16 days prior to date of said medical examination. On the date when alleged offence took place, accused had been opined by Medical Board to be between the age of 18 years, 8 months and 14 days. Law was to be interpreted in favour of accused as same was for the protection of accused and such protection could only be afforded to accused, if he was given the benefit by accepting lower of the age determined by the Medical Board. Margin of one year in the opinion of Medical Board, could not be overruled. Accused had to be given the benefit of the law. Application was allowed."
11. ' On the other hand the learned A.P.-G. While opposing the grant of bail application relied upon the case-law. In a case reported in 2009 YLR 1029, it was observed asunder:-- "Bail. Refusal of, accused who was a woman, had been involved in a case for being in possession of the huge quantity of heroin, a contraband of the worst nature and she made an abortive attempt for its transportation abroad, was not possible at bail stage to infer that case was totally based upon false evidence or that it was a case of no' evidence. Amendment of S.497, Cr.P.C.
12. Through the Protection of Women (Criminal Laws Amendment) Act, 2006, was not applicable to the cases under the Control of Narcotic Substances Act, 1997. Accused a woman involved in such case could not be released on bail unless the Court, after examining the the entire material brought on record, came to a tentative conclusion that material to connect accused with the commission of the offence was quite lacking. Inference drawn by the counsel for accused for grant of bail under S.51 of Control of Narcotic Substances Act, 1997 by conjunctive application of the Provisions of S.5-A(8) of Suppression of Terrorist Activities (Special Courts) Act, 1975 and the other laws referred by him could not be accepted. Material available on record prima facie, had connected accused with the alleged offence. Case was not fit for the grant of bail to accused in circumstances."
13. ' In a case reported in PLD 2000 SC 813, the Hon'ble Supreme Court has observed as follows:-- Ascertaining age of minor. School Leaving Certificate is not enough. Medical test should be conducted. Mere reliance on School Leaving Certificate by trial Judge as also by learned Single Judge of High Court was not enough to come to a definite conclusion as to age of minor at the time of commission of offence. Additionally for that purpose, ossification test or any other medical test should have also been got conducted and age of convict-appellant determined in accordance therewith and then decide case accordingly."
14. In a case reported in 1992 PCr.LJ 2459 it was held as under:- "(a) Detailed examination of evidence and elaborate discussion of merits is to be avoided at bail stage."
(b) Age--Best evidence to prove . Age is that of Radiologist and his report should be given preference to a school leaving certificate.
(c) Bail cannot be claimed under first proviso to subsection (1) of. S.497, Cr.P.C. As a matter of right.
15. ' In a case reported in PLD 1994 SC 65, the honourable Supreme Court has held as under:-- "While deciding the bail application, before recording of evidence in the trial Court only tentative assessment was to be made by Court and it was not permissible to go into the details of evidence one way or the other for that might prejudice the case of one party or the other."
16. ' The case reported in 2011 SCMR 165 cited by the learned counsel for the applicant is quite distinguishable with the facts and circumstances of the present case for the reason that in the above quoted case the heroin was recovered from the suit-case of co-accused at the airport and according to said co-accused the suit-case belonged to present accused. But in the present case a huge quantity of 75 kilogram heroin was recovered from the secret cavity of dumper truck and the present applicant was one of the driver of the said dumper truck and was apprehended at the spot and the said dumper truck was under the supervision and control of the applicant.
17. ' As far as the case reported in 2012 SCMR 573 is concerned, it is also distinguishable from the facts and circumstances of the present case for the reason that in the said case 4 kilogram charas was recovered from the path and not from the personal possession of that of accused But in the present case a huge quantity of 75 kilogram of heroin was recovered from the secret cavity of dumper truck and the present applicant was one of the driver of the said dumper truck and was apprehended at the spot and the said dumper truck was under the supervision and control of the applicant... ' but in the present case.
18. ' So far the reliance of case reported in 2012 PCr.LJ 897 cited by the learned counsel for the applicant regarding his minor age is concerned, it is pertinent to mention here that in the said case bail was granted to the applicant on the ground that margin of one year in the Opinion of Medical.
19. Board could not be overruled. But in the present case the Medical Board has opined the age of applicant to be 20 years at the time of occurrence of alleged offence, therefore this case is distinguishable from the facts and circumstances of the present case.
20. There is no documentary proof regarding the enmity of the applicant with the complainant party has been shown being involve him in heinous matter falsely. The offence is punishable with death and comes within the ambit of prohibitory clause 1 of section 497, Cr.P.C. And the age of applicant was opined by the Medical Board declaring him to be the age of 20 years, therefore the applicant failed to make out his case for enlargement on bail. It is well-settled principle of law as laid down by the apex Court that deeper assessment cannot be allowed and only tentative assessment should be made at the bail stage.
21. ' For the foregoing reasons I find no force in the present bail application. Consequently the same is dismissed.
22. ' It is made clear that the above observations are tentative in nature and the same cannot be influenced upon the trial Court while deciding the case on merits according to law.