The petitioner namely Sarfraz alias Kaka seeks post-arrest bail in case FIR No.261 dated 10th of May, 2012, offence under Section 9(c) of The Control of Narcotic Substances Act, 1997, registered at Police Station Dijkot, District Faisalabad.
2. Precisely the allegations against the petitioner are that in pursuance to a raid conducted by the police, he led to the recovery of 48.165 kilograms charas and 02 kilograms opium.
3. Heard. Record perused.
4. As per prosecution story, on 10th of May, 2012 on the basis of spy information, a raid was conducted on the cattle form of the petitioner. The petitioner was apprehended and in pursuance thereof, he led to the recovery of 43 packets of charas, weighing 48.165 kilograms and two packets of opium, weighing 02 kilograms, concealed in the plastic drums. The petitioner previously moved Criminal Miscellaneous No.16815-B of 2014 which was dismissed as withdrawn vide order dated 2nd of February, 2015 with the following observations :- "2. The file reveals that petitioner has not approached the court of first instance on this specific ground (statutory ground) which is mandatory.
3. At the very outset, learned counsel for the petitioner seeks permission to withdraw this petition in order to file application before the court of first instance, reserving his right to file a fresh petition, before this court.
4. Dismissed as withdrawn."
5. In pursuance to the above said order, though the petitioner filed a petition before the learned trial court but the same was dismissed vide order dated 6th of February, 2015. Through instant application, the petitioner is mainly seeking the relief of post-arrest bail on the basis of delay in conclusion of trial.
6. We have observed that the learned trial court, while taking the cognizance of the case, framed the charge against the petitioner on 14th of July, 2012 and the prosecution was directed to adduce evidence. On 9th of August, 2012, two prosecution witnesses namely Muhammad Aslam Head Constable No.503 and Miraj Din Constable No.915 was examined as PW1 & PW2. Record further reveals that on 1st of October, 2012 PW Zafar Ullah Head Constable No.3311 was in attendance but since no other prosecution witness was available, so the case was adjourned for summoning of the remaining witnesses of the prosecution through non-bailable warrants of arrest. On 24th of October, 2012, again Zafar Ullah Head Constable No.3311 was in attendance but due to non- availability of the learned defence counsel, the case was adjourned. Order dated 5th of November, 2012, clearly depicts that on the said date, Muhammad Aslam S.I., Bashir Ahmad S.I. and Zafar Ullah Head Constable No.3311 were in attendance but again due to non-availability of the learned defence counsel, the case was adjourned for the next date. On 4th of December, 2012, again Muhammad Aslam S.I., Bashir Ahmad S.I. and Zafar Ullah Head Constable No.3311 were in attendance but the petitioner changed his counsel and Rana Muhammad Naveed, Advocate filed his power of attorney on his behalf and sought adjournment, as a consequence thereof, the case was adjourned to 18th of December, 2012. Thereafter on number of dates, none of the prosecution witnesses turned up, as a result thereof, their non-bailable warrants of arrest were issued. On 4th of February, 2014, again Bashir Ahmad S.I., Aslam S.I. and Liaquat Ali A.S.I. were present and the case property was also produced but the petitioner has floated a request that his counsel is not available. On 12th of February, 2014, the petitioner again changed his counsel and his new counsels Ch. Talib Hussain Chatha and Rana Shahid Zahoor, Advocates filed their power of attorney. On 22nd of April, 2014 Bashir Ahmad S.I. was available but since no other prosecution witness turned up, so the learned trial court again issued summons for their appearance before the court for leading the evidence. Even on 2nd of February, 2015, Liaquat Ali A.S.I., Muhammad Zafar Constable No.3311 and Bashir Ahmed S.I. were available but police file was not available, so the case was adjourned for 7th of February, 2015. The events of court proceedings depicted in the order sheet of the learned trial court clearly reflect that the petitioner has fully contributed in the delay caused in the conclusion of trial. In view of contributory delay caused by the petitioner himself, we are not inclined to give the premium of delay in conclusion of trial to the petitioner. Reliance in this regard can be placed on the case of "SHER ALI alias SHERI versus THE STATE" (1998 SCMR 190). The relevant extract from the same is reproduced below :- "10. The above case-law indicates that under the third proviso to subsection (1) of section 497, Cr.P.C. an accused is entitled to bail as a matter of right if the statutory period mentioned either in clause (a) or clause (b) has expired and the trial has not been concluded in view of the use of the word 'shall'. This right can be defeated only if the State or a complainant shows that the delay in trial is attributed to the accused person concerned. Once it is shown the above right is forfeited.
Reference may be made to the case of Akhtar Abbas v. The State (PLD 1982 SC 424), in which this Court while declining a petition for leave against the refusal of bail observed as under as to the effect of delay caused by an accused in the finalisation of the trial:-- "4. We regret we are not impressed by these submissions, as we find that the requirements of the law is not fulfilled in this case, as at least on eight occasions adjournments were sought by the defence for one reason or the other. In such a case it does not appear to be the intention of the law to calculate the amount of delay caused by the defence. All that is necessary is to see whether the finalistion of the trial has, in any manner, being delayed by an act or omission on the part of the accused. In the present case, the delay is partly attributable to the accused. The submission that the date in question was not fixed for the hearing of the case is not correct. On the contrary, it is clear from the order sheet of the trial Court on these dates most of the witnesses were summoned and were present, but their examination had to be postponed owning to the request made by the defence counsel."
7. Though by virtue of the amendment brought in Section 497 (1) of The Code of Criminal Procedure, 1898 through The Code of Criminal Procedure (Amendment) Act VIII of 2011, it is now provided that if an accused charged with an offence punishable with death, is detained for such offence for a continues period exceeding two years and his trial is not concluded, he is to be enlarged on bail. But the following proviso was also added to the said Section which reads as under :- "497. When bail may be taken in cases of non-bailable offence. (1) ---------- (a)
(b)
Provided, further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life."
Bare reading of the above referred proviso postulates that the rule of allowing bail on the basis of delay in conclusion of trial is not applicable to three categories of accused. Firstly, where the accused is a previously convicted offender for an offence punishable with death or imprisonment for life, secondly, where in the opinion of the Court that he is hardened desperate and dangerous criminal and thirdly, where he is accused of an act of terrorism punishable with death or imprisonment for life.
8. The case of the petitioner falls within second category of cases, as he is involved in the heinous offence of narcotics. Guidance in this regard can be sought from the case of "THE STATE through Deputy Director, Anti-Narcotics Force, Karachi versus MOBIN KHAN" (2000 SCMR 299). Even this Court in the case of "Rana SHAHID MASIH versus THE STATE" (2012 P Cr. L J 878) reiterated the said principle, the relevant extract from the same is reproduced below :- "6. The word "dangerous" used in proviso to section 426(1-A)(c), Cr.P.C. should be construed in its ordinary sense, which means horrible effects of an offence against society at large. Needless to mention here that a distinction is to be made between an offence which is committed against an individual like theft/injury and an offence, which is directed against the society as a whole for the purposes of bail. The effects of smuggling and unlawful selling of narcotics are disastrous on the moral, social fabric of the society and accused of such offences had the potential of destroying the health and family life of a large number of people in addition to bringing a bad name for the country. The heroin/charas (or other substance covered by (CNSA), were declared dangerous drugs in 1930 basically on account of their dangerous effects on society. Meaning of word "dangerous" can be ascertained in the light of the conduct of accused at the time he was arrested, his previous conduct, nature of offence coupled with its effect on society, his betrayal with reference to moral duties. If the word "dangerous criminal" is to be considered as previous convict, then the word "dangerous criminal" used in proviso of section 426(1-A)(c), Cr.P.C. would become completely redundant and meaningless. Therefore, opinion on this point could be formed upon the material available in case under trial as well any other material, which may be produced by the prosecution. In an earlier case "MUHAMMAD ASGHAR v. THE STATE" (1992 MLD 1554), this Court had already declared that persons dealing in large quantity of heroin could safely be termed as "dangerous", and while holding so, accused despite expiry of statutory period, was refused bail."
Reference in this respect can also be made to "NIAZ AKHTAR versus THE STATE and others" (PLD 2012 Lahore 512) and "Rana NASARULLAH versus THE STATE" (PLD 2011 Lahore 544).
9. The petitioner even otherwise is involved in ten other criminal cases and in the instant case, huge quantity of charas and opium was recovered from him. His case is fully covered under Section 9(c) of The Control of Narcotic Substances Act, 1997 and clearly attracts the bar contained in Section 51 of the Act ibid.
10. The nutshell of the above discussion is that we are not inclined to allow the instant petition.
Resultantly, the same is dismissed.