SYED MUHAMMAD FAROOQ SHAH, J.:- Applicant, Qadir Khan seeks bail after arrest in case Crime No.101/2013 registered under section 6/9-C at Police Station Mominabad, Karachi as the earlier bail application filed by the applicant before the Court of Special Judge (C.N.S-II) Karachi was rejected by order dated 18.05.2013.
2. Prosecution story in nutshell is that during patrolling S.I. Haider Gul along with other officials found one person in suspicious condition near N-4 Mini Bus Stop Sector-10, Orangi Town, Karachi, who was holding one plastic shopping bag. Patrolling officer caught hold of him, who disclosed his name as Qadir Khan, during his personal search 2 packet of charas, weighing two kilograms and further a 30 bore pistol without number loaded with 4 rounds and magazine including cash were recovered. The recovered contraband charas and weapon were sealed at the spot under the mushirnama and accused alongwith case properties was brought at the police station where a case under section 6/9/C CNS Act and under section 23-A S.A. Act was registered. On completion of usual investigation, the accused was charge sheeted under two different crimes.
3. Arguments advanced by learned counsel and A.P.G. are considered and record has also been perused.
4. Learned counsel for the applicant argued that there is violation of section 103 Cr.P.C. as alleged recovery was affected during personal search of the applicant from a bus stop during noon time where the private persons were present but none of them associated by the police to act as mushir of recovery and arrest of the applicant. The next ground for bail urged by the learned counsel is that the contraband charas was recovered on 05.04.2013 and dispatched to the Chemical Examiner for analysis on 15.04.2013 i.e. after 10 days without any sufficient reason and cause. In support of his contentions the learned counsel placed reliance on 2012 YLR 2596, 2012 M LD 1171, 2012 YLR 2298, and 2011 P.Cr.L.J. 2298.
5. Conversely, the learned Assistant Prosecutor General while placing reliance upon Hon'ble Supreme Court's ruling in the case of (Gul Alam Vs. State reported is 2009 PSC (Crl) 600 argued that under Rule 4 & 5 of the Control of Narcotics substance Act, 2001, there is no bar on the investigation official to send the samples within 72 hours of the seizure. It is held that these rules are directory and not mandatory, therefore, cannot control the substantive provisions of the CNSA and applied in such a manner that its operation shall not frustrate the purpose of CNS Act, in which these are framed, further failure to follow the rules would not render the search, seizure and arrest under the CNSA an absolute nullity, the delay in sending the incriminating articles to the concerned quarters for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated, particularly the sealed packets were received by the chemical analyzers, therefore, in the absence of any allegation of tempering of the property, the arguments of the learned counsel for the petitioner is not sound.
6. Reading of the Impugned order dated 18.05.2013 transpires that the learned Judge Special Court No.2, CNS Karachi while passing the order placed reliance on the case law, wherein the Hon'ble Supreme Court declined bail merely on the ground that accused has not alleged any enmity with the police officials, showing their false implication in the case. He has also observed that cogent grounds are exist to believe that the accused has committed alleged offence which is against the society. Moreso, the learned counsel for the applicant could not point out any mis-reading, non- reading of material and law available on the subject.
7. No enmity, ill-will or grudge has been alleged against the prosecution witnesses, on the contrary, sufficient material has brought by the prosecution on the record including report of chemical examiner relating to positive report of narcotic substance. So far as the contention of the learned counsel for applicant that the recovery was not witnessed by persons from public, it may be observed that section 25 of CNS Act excludes the application of section 103 Cr.P.C.
8. Whatever mentioned above, I reached at the irresistible conclusion that the applicant is not entitled to grant of bail, application is accordingly dismissed, however, the learned trial Court is directed to decide the matter expeditiously, preferably, within three months' time and in failure of the trial Court to conclude the trial within specified period, the applicant may repeat the bail application, if so advised.