SYED SAEEDUDDIN NASIR, J.--Through this order, I intend to dispose of instant bail application arising out of crime No,09 of 2014, under sections 6, 9(c), 14 and 15 of CNS Act, 1997 of Police Station ANF Hyderabad.
2. Concisely, the prosecution story is that on 11-06-2014 the complainant Syed Salman of Police Station ANF Hyderabad along with his subordinate staff on spy information, received through his superiors regarding smuggling of huge quantity of heroin in Trawler bearing No,SLJ-8725, reached at Jamshoro Toll Plaza. It was about 1630 hours when said Trawler was stopped there and drivers, who disclosed their names as Muhammad Shafique and Muhammad Hassan Javed, were arrested, The police party unloaded 135 cotton bales from the Trawler, which were loaded from O.K Qalandri Cotton Factory Kotri Industrial area for shifting to Karachi. On checking of the same, 58 packets of heroin and ten other packets in shape of capsule containing heroin were recovered. On weighing each packet it transpired that each contained one kilogram of heroin and in this way total 68 kilograms of heroin was recovered from the cotton bales. Whole amount of recovered heroin powder was sealed in four bags for chemical examination; ASI Ali Muhammad and PC Kashan Ahmed acted as mashirs of the arrest and recovery.
3. Police investigated the matter and as per police, the arrested accused/drivers of the Trawler had no conscious knowledge regarding concealment of the heroin power in the cotton bales.
Investigating Officer also recorded 161 and 164, Cr.P.C. Statements of P.Ws Shamsuddin and Bilawal Hussain, who at that time were posted as Security ,Guards by National Bank SITE Area Branch at Qalandari Cotton Factory Kotri upon pledged stock; they in their statements under sections 161 and 164, Cr.P.C. Stated that cotton was pressed and loaded in Trawler No,SLJ-8725 in presence of present applicants Mohan Lal and Nand Lal and absconding accused Waqar and Dileep.
4. Mr. Abdul Mujeeb Pirzada, learned counsel for the applicants / accused, inter alia, argued that there is no reasonable ground to believe that the applicants have committed the alleged offence; the applicants are innocent; the prosecution story is false, fabricated and concocted and highly unbelievable and without any independent or corroborative piece of evidence. The applicants have been implicated malafidely on the basis of statements of co-accused before ANF police, which is inadmissible under Qanune-Shahadat Order, 1984. He further contended that the statements of PWs recorded under sections 161 and 164, Cr.P.C. Cannot be relied upon in order to connect the present applicants/accused in the commission of alleged offence; moreover, the witnesses were not subjected to cross-examination by the applicants as required by section 164, Cr.P.C, therefore, the same cannot be relied upon. There is no direct recovery from the possession of applicants. Even the police have not associated any private person to act as mashir of the alleged recovery from co-accused. Learned counsel has further contended that the applicants are running O.K. Qalandari Cotton Factory at Industrial Area Kotri for two years having good reputation in the Industrial circle and never ever involved in any criminal case. The PWs are interested and are police officials, whereas the applicants are owners of Cotton Factory, as such, there is no likelihood that the Applicant/Accused would tamper with the evidence of the prosecution case, if the applicants are released on bail. The co-accused, who were drivers of the trawler from whose possession .The heroin was recovered namely; Muhammad Shafique and Muhammad Hassan Javed, have already been admitted to bail by the learned District and Sessions Judge Kotri at Jamshoro in Criminal Bail Application No,443/2014 in Special Case No, 12 of 2014, therefore, on the principle of consistency the present applicants/accused are also entitled to be admitted to bail.
Since the challan has been submitted before the learned trial court, therefore, the applicants/ accused are no more required for further investigation. Hence, this is a case of further inquiry into the guilt of the accused and falls within the meaning of section 497(2), Cr.P.C. In order to substantiate his arguments, the learned counsel for the applicants / accused has relied upon the following case law:-- 1) Abdali Shah v. The State (PLD 2008 Karachi 57).
2) Muhammad Ullah v. The State (2009 SCMR 954).
3) Muhammad Farooq Khan v. The State (2007 PCr.LJ 89).
4) Saleh alias Saloo v. The State (2012 PCr.LJ 595).
5) Zar Muhammad v. The State (2012 PCr.LJ 1046).
6) Jamal-ud-Din alias Zubair Khan v. The State (2012 song 573).
5. Syed Tarique Ahmed Shah advocate also appearing for applicants/ accused has almost extended the same arguments as advanced by Mr. Abdul Mujeeb Pirzada advocate.
6. On the other hand, Mr. Amjad Ali Sahito, the learned Special Prosecutor for NAB has vehemently opposed the grant of bail to the applicants mainly on the ground that instant matter is of a recovery of huge quantity of heroin power i,e, 68 kilograms; the offence is of a heinous nature and considered to be the offence against the society at large. He contended that the recovered heroin powder was loaded in cotton bales at the O.K. Qalandri Cotton Factory of applicants and the P.Ws who were posted as Security Guards at the O.K. Qalandari Factory have also, in their statements recorded under sections 161 and 164, Cr.P.C, fully implicated the applicants, hence, the applicants are not deserving for concession of bail. He further contended that the drivers were granted bail by the learned trial Court inasmuch as involvement in the crime was not made out. The trawler of co- accused who were only drivers on the said trawler, was hired by the employee of the present applicants / accused namely; Waqar the absconding accused, from the Truck stand. The co- accused also produced bill of lading bearing No,8924 dated 10-06-2014 of the goods according to which the same were loaded from the Factory of present applicants/ accused, which is sufficient to implicate the present applicants/accused with the commission of offence. He has relied upon the case of `Ghulam Qadir v. The State' reported in PLD 2006 SC 61 and an unreported judgment passed in Crl. P.L.A No,15 of 2015 by Honourable Supreme Court of Pakistan.
7. I have heard the learned counsel for the applicants as well as learned Special Public Prosecutor for ANF and perused the material available on record.
8. The applicants are charged with the commission of offence under sections 6, 9(c), 14 and 15 of CNS Act, 1997, which reads as under:-- "9. Punishment for contravention of Sections 6, 7 and 8.---Whoever contravenes the provisions of Section 6, 7 or 8 shall be punishable with: a. Imprisonment which extend to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substances is one hundred grams or less; b. Imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram; c. Death or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotics drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b); ' Provided that, if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life.
9. From the above reproduction, it is quite clear about the quantum of prescribed punishment under section 9 (c), which could be either death or imprisonment for life or an imprisonment for a terms which may extend to fourteen years, in addition to fine upto one million rupees.
10. It is also advantageous to mention here that the offences punishable under CNS Act, 1997 are of heinous nature and considered to be offence against the society at large and therefore, section 51 subsection (1) of Control of Narcotic Substances Act, 1997 puts a bar on enlarging the accused on bail upon consideration ' of grounds contained in sections 496 and 497 of the Criminal Procedure Code, 1898, for the sake of convenience the said provision is reproduced as 'under:- "51. No bail to be granted in respect of certain offences.---(l) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), ball 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.
11. It is an admitted position that the present applicants / accused are the owners of the 0.K Qalandari Cotton Factory, Industrial SITE area Kotri, and in the light of evidence so far collected by the prosecution, it cannot be denied that the cotton bales from which 68 kilograms of heroin was recovered were loaded on the said trawler from the aforesaid Factory of the accused. The prosecution has also gathered more than sufficient, prima facie, evidence to the effect that the aforesaid cotton bales containing 68 kilograms of heroin powder were loaded on the trawler from the Factory of the accuse applicants/ accused. Moreover, the co-accused also produced bill of lading bearing No,8924 dated 10-06-2014 of the goods according to which the same were loaded from the Factory of present applicants/ accused, which is, prima facie, sufficient to implicate the present applicants/accused with the commission of offence.
12. In their depositions under sections 161 and 164, Cr.P.C. P.Ws Shamsuddin and Bilawal Hussain, the Security Guards, of Messrs National Bank of Pakistan, Kotri Branch on pledged stocks at the Factory, have categorically stated the details of the cotton bales being brought into the said Factory by the applicants/accused, Waqar and Dileep, and pressing of the cotton bales, their loading on the trawler of the co-accused in the presence of present applicants/accused and the absconding accused Waqar. These are independent P.Ws and their presence at the relevant time of loading the cotton bales on the trawler is nothing but natural. Their presence at the Factory has not been denied by the applicants/accused, and their statements, in my view, are voluntary and spontaneous, which cannot be doubted at all at the bail stage. The case of the co-accused is totally on a different footing than the case of the present applicants/accused inasmuch as their conscious possession in respect of the recovered heroin could not be established by the prosecution and, therefore, they were admitted to bail, the case of the applicants cannot be treated at par with that of the co-accused.
13. A huge quantity of heroin being 68 kilograms has been recovered from the cotton bales which were loaded from the Factory of applicants/accused, and such a huge quantity of heroin cannot at all be foisted upon the present applicants/ accused.
14. The arguments of the learned counsel for the present applicants/accused that there is no evidence against them except the statements of co-accused, which is inadmissible, is also devoid of force inasmuch as, the co-accused have not mentioned the names of the present applicants/ accused in their statements. Moreover, the prosecution has prima facie, gathered sufficient evidence connecting the present applicants/accused with commission of offence which is punishable with capital punishable.
15. In the case of Abdali Shah supra relied upon by the learned counsel for the applicants, bail was granted to the accused on the ground that no recovery had been effected from the person of the accused, which had been allegedly effected from a taxi, which did not belong to the accused.
16. In the case of Muhammad Ullah supra relied upon by the learned counsel for the applicants, bail was granted on the ground that the contrabands were not recovered directly from the possession of the accused.
17. In the case of Muhammad Farooq Khan supra relied upon the by the learned counsel for the applicants, it is held that ban contained in section 51 of the CNS Act, 1997, would be attracted only when there are reasonable grounds for believing that accused is guilty of alleged offence. A High Court is competent to grant bail in appropriate cases notwithstanding the ban under the aforesaid provisions.
18. In the case of Saleh alias Saloo supra relied upon by the learned counsel for the applicants, it is held that ban contained in section 51 of the CNS Act, 1997, would be attracted only when there are reasonable grounds for believing that accused is guilty of alleged offence.
19. In the case of Zar Muhammad supra relied upon by the learned counsel for the applicants, bail was granted on the ground that the contraband were not recovered from the possession of the accused and no identification parade was conducted to establish his guilt.
20. In the case of Jamal-ud-Din alias Zubair Khan supra relied upon by the learned counsel for the applicants, bail was granted on the ground that the contraband were not recovered from the possession of the accused.
21. The aforesaid case laws relied upon by the learned counsel for the applicants are distinguishable viz.a.Viz. The circumstances of the instant case inasmuch as huge quantity of 68 kilograms of heroin has been recovered, the link of which goes back to the present applicants / accused, therefore, keeping in view the dictum laid down by the Honourable Supreme Court in an unreported judgment in Crl. P.L.A. No,15 of 2015, Socha Gul v. The State supra, wherein it is held that "When we refer to the standards set out under section 497, Cr.P.C. For grant of bail to an accused involved in an offence under section 9(c) of CNS Act of 1997, even on that basis we find that an accused charged with an offence, prescribing various punishments, as reproduced above, is not entitled for grant of bail merely on account of the nature or quantity of narcotic substance, being four kilograms", meaning thereby that the provisions contemplated by section 51 of CNS Act, 1997 cannot at all be ignored at the time of granting of bail even on the ground that a smaller amount of narcotic was recovered from the possession of the accused, whereas in the present case a huge quantity of narcotic as aforesaid has been recovered. Therefore, the same are not relevant in relation to the facts and circumstances of the instant case.
22. In the case of Ghulam Qadir supra relied upon by the learned Special Prosecutor for ANF, it is held that the Courts are supposed to dispose of such matters where narcotics are involved with dynamic approach instead of acquitting the drug peddlers on mere technicalities.
23. For the aforesaid reasons, I am of the view that the applicants/accused are not entitled to bail at this stage, therefore, I dismiss the instant bail application.
24. It is made clear that the observations made hereinabove being tentative in nature, shall not prejudice the case of either party before the trial Court.