MAZHAR ALAM KHAN MIANKHEL, C.J.---Petitioner, Bacha GulSCMR 1989; Mst. Rafaqat Bibi v. State 2011 M LD 1070 and Ayaz Pathan v. State 2013 YLR 2560 ref. Son of Mirza Jan, seeks bail in case FIR No.546 dated 12.12.2014, Police Station, Tatara Peshawar, registered under Section 9 (c) of the Control of Narcotic Substances Act, 1997, as his such request has already been turned down by the learned Additional Sessions Judge-III/ Special Court, Peshawar vide his order dated 06.01.2015.
2. According to the prosecution story as disclosed in the FIR, the complainant/SHO, while present on 'gusht' in the illaqa on 12.12.2014, was informed by 'mukhbar' that in a silver colour motorcar No. YA- 365-Islamabad, narcotics would be smuggled. The complainant laid naka-bandi and when the said motorcar arrived at the spot, it was stopped by the police. One Subhanullah was driving the car whereas the present petitioner was sitting with him on the front seat. The search of the motorcar led to the recovery of 18.750 kilograms of charas from the rear doors and 'diggi' of the car.
The charas was taken into possession along with the motorcar and the accused were arrested.
From the total 15 packets of charas pukhta, 5/5 grams from each packet was separated for chemical analysis and sealed into parcels. Murasila was drafted and sent to the P.S., where FIR No.546 was registered against the accused on 12.12.2004.
3. Learned counsel for the petitioner argued that the accused-petitioner is quite innocent and there is absolutely no evidence against him which can connect him with the commission of offence; that no contraband whatsoever was recovered from the immediate possession of petitioner; that in the circumstances of the case concealment of narcotics with conscious knowledge cannot be attributed to the accused-petitioner; that mere recovery of narcotics from a vehicle does not automatically connect the petitioner with the alleged recovery, unless the prosecution prima facie succeeds in showing that he had conscious knowledge of it. The learned counsel cited two judgments of this Court passed in Cr.Misc. No.1851/2014 (Ali Asghar v. State) decided on 15.12.2014 and Imtiaz v. The State (2014 YLR 892), wherein bail was granted to accused in the recovery of 60 and 19 kilograms of charas respectively. The learned counsel also cited certain judgments of the apex Court and contended that in view of the dictum laid down by the superior Courts, the accused-petitioner is entitled to bail, as he was neither driver nor owner of the vehicle.
4. As against that, the learned AAG argued that huge quantity of charas has been recovered from the motorcar in question wherein the petitioner was sitting with the driver in the front seat and prima facie he is connected with the commission of offence, as the conscious knowledge of petitioner is yet to be determined at the trial after recording of evidence.
5. Arguments of learned counsel for the parties were heard and record of the case was perused.
6. Perusal of the record would reveal that petitioner was sitting in the motorcar at the time of his arrest on the spot and huge quantity of narcotics were recovered from the rear doors as well as trunk of the same. The samples so separated from the lot when A were sent to the Laboratory have been analyzed as "charas" by the Chemical Examiner, whose positive report is available on file. The punishment for the offence also falls within the prohibitory clause of Section 497, Cr.P.C.
7. The globalization of drug abuse has become one of the gravest problems confronting humanity.
The world, at large, has waged an admirable war against drugs. Many developed and developing countries have achieved remarkable results by making huge investments to check narcotics trafficking while simultaneously reducing the in-house demand for illicit substances. However, the situation in Pakistan remains complex, being a major transit country because of its geographical proximity to Afghanistan, which produces considerable quantity of opium and charas. The CNS Act, 1997 consolidates and amends the law relating to narcotic drugs and psychotropic substances. It controls and prohibits the prosecution, processing and trafficking of these substances. It also lays progressive punishments for narcotic offences. It provides for the constitution of Special Courts having exclusive jurisdiction to try narcotic offences. Section 51 of the Act provides that 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. When the quantity of narcotics exceeds one kilogram, the case falls in Clause (c) of Section 9 of the Act, for which death penalty or imprisonment for life has been provided. Similarly, the discretion under Section 497, Cr.P.0 can also not be exercised with regard to offences punishable with death or imprisonment for life unless the Court at the very outset is satisfied that such a cnarge appears to be false or groundless.
8. The larger interest of the public and State demands that in case of huge recovery of narcotics, the discretion under Section 497 of the Code of Criminal Procedure should not be exercised liberally. Generalizations on matters which rest on discretion and an attempt to discover formula of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. However, still the discretion must be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher Courts.
9. The apex Court in the case of The State v. Javed Khan (2010 SCM R 1989) has made the following observations in a narcotic case:--- "S. 497(5)---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51 (1)---Recovery of narcotic substances---Bail,cancellation of---Death sentence---Narcotic substance weighing 5- 1/2 kilograms was recovered from accused who was granted bail by High Court---Validity---Case of accused did not fall within prohibitory clause of S. 497 Cr.P.C., as the offence was covered by section 9(c) of Control of Narcotic Substances Act, 1997, providing for various sentences, which not only fell within prohibitory clause of S. 497, Cr.P.C. But also attracted the bar contained in section 51(1) of Control of Narcotic Substances Act, 1997, which was specifically made applicable to those offences which provided for punishment of death sentence---Approach of High Court releasing accused on bail was arbitrary, without application of mind and contrary to settled principles of law thus unsustainable---Supreme Court converted petition for leave to appeal into appeal and order admitting accused on bail was set aside and bail application before High Court was dismissed."
' The Lahore High Court in the case of Mst. Rafaqat Bibi v. State (2011 M LD 1070) has also held that:-- "S.497---Control of Narcotic Substances Act (XXV of 1997), S.51---Bail---Section 497, Cr.P.C. Not applicable to offences under the Control of Narcotic Substances Act, 1997---Section 51 of the Control of Narcotic Substances Act, 1997, has ousted the implication of S. 497, Cr.P.C. From the cases relating to narcotics punishable with death---Said S. 51 relates to the Control of Narcotic Substances Act, 1997, which is a special law dealing only with the offences relating to narcotic drugs, psychotropic substances and to control the production, processing and trafficking of the same, whereas Criminal Procedure Code, 1898, is a general law and special law has always precedence over the general law---When the law makers provide some special provision in the Statute to bar the jurisdiction of Special Court established under the said enactment, due weight is to be given to such special provision of law as against general principles governing such cases, when accused approaches the Special Court or the High Court."
' Similar view has been taken by the Karachi High Court in the case of Ayaz Pathan v. State (2013 YLR 2560), wherein the learned Bench while dismissing the bail application in a case registered under Section 9(c) of CNSA has made the following observations:-- S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 14, 15, 25 & 29---Possessing, trafficking of narcotics, and aiding, abetting and associating in narcotic offences---Bail, refusal of---Prosecution witnesses, had no enmity whatsoever, with accused to foist such a huge quantity of nine Kilograms of charas upon him---Chemical Examiner's report regarding recovered charas wasfound positive---Substance recovered from accused, was proved to be charas---Prosecution, in circumstances, had discharged its initial onus while proving that the substance recovered from accused was contraband charas--Sufficient material was available on record, which had shown that accused was found sitting on front seat of the vehicle, and he was found responsible for transportation of narcotics---Defence plea that the narcotic was not recovered from possession of accused, was not true---Alleged offence was heinous one falling within prohibited clause of 5.497, Cr.P.C.---Contention that respectable inhabitants of the locality, were not associated as witness or mashir, was not attracted in view of S.25 of the Control of Narcotic Substances Act, 1997---Applicability of S.103, Cr.P.C., had been excluded in the cases of recovery of narcotics--- Evidence of Police Officials, was as good as of any other public witness, in absence of any malice or mala fide---Defence plea raised by accused, required deeper appreciation of evidence, which was not admissible at bail stage---Under provisions of S.29 of Control of Narcotic Substances Act, 1997 presumption would be that a person who was found in possession of narcotics, had Committed offence, unless otherwise proved---Reasonable grounds, prima facie, did exist to believe the involvement of accused in the offence alleged against him---Bail application having no merits for consideration, was dismissed, in circumstances.
' The learned counsel for the petitioner through his exhaustive and elaborate arguments wanted this Court to give its categorical and specific verdict regarding an accused having the only role of that he being the front seator in a vehicle is not involved in the commission of offence under Section 9 of the Control of Narcotic Substance Act, 1997. He placed reliance on the judgments of this Court as well as the apex Court favouring him in this regard. But this Court is very much clear in its mind that no such precise verdict in criminal cases can be given as every criminal case has its own facts and circumstances, so it can not be held as a general rule that every front seator of the vehicle would be or not be entitled to be released on bail.
' The case in hand is having similar facts and circumstances. Although, petitioner, as per contents of the FIR, was sitting on the front seat of the motorcar but nothing is available on file to show as to whether the motorcar was a taxi and the petitioner was sitting in it as a passenger or otherwise. In absence of such a plea at this stage, it would be presumed that petitioner was the colleague of co-accused driver and charas weighing 18750 grams was recovered from the motorcar, for which the punishment falls within the prohibitory clause of Section 497, Cr.P.C.
10. Deeper appreciation of the record at bail stage cannot be gone into but only it is to be seen as to whether the accused is prima facie connected with the commission of the offence or not. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use is the hall mark of a prudent exercise of judicial discretion.
One ought not to make it a question of exercise of authority to grant bail in every narcotic case on the ground of 'further inquiry' and 'conscious knowledge' in disregard to the settled principles of law for grant or refusal of bail. The authorities of the august Supreme Court of Pakistan, referred to by the learned counsel, are not applicable to the instant case, as the same have been delivered in appeal cases.
11. For what has been discussed above, this Court is not inclined to accept the prayer of petitioner for grant of bail and the bail petition is accordingly dismissed.