AFTAB AHMED GORAR, J.---Applicant Fazal Moula son of Gul Badshah seeks bail after arrest in case Crime No,12/2014 registered at Police Station ANF, Clifton, Karachi under sections 6/9(c),14 and 15 of Control of Narcotic Substances Act, 1997.
2. Record shows that earlier bail application filed by the applicant before the Special Court-I (CNS)
Karachi was rejected by order dated 10.04.2017.
3. Pithy facts unveiled from the FIR are that applicant along with accused Ghulam Abbas was arrested on the spot by the complainant when Ghulam Abbas taking out the Charas packets from the cabin of truck bearing registration No,C-2890 was handing over to applicant who was keeping the same in Digy of car i,e, Indus Corolla bearing registration No,Z-9252. The total recovered charas in this case is 256 kgs out of which 16 packets weighing 16 Kgs of charas were found in possession and control of the present applicant.
4. Learned counsel for the applicant argued that applicant has falsely been implicated in this case with mala fide intention and ulterior motives; there is no evidence against the applicant and there are contradictions in the evidence brought by the prosecution; the trial court has failed to appreciate facts and law involved in the case as such dismissed the bail application in mechanical and stereotyped order. He further submitted that the learned trial Judge has dismissed the application of the applicant on the ground that he is involved in a heinous crime as such not entitle for bail. He contended that applicant has been involved in this case due to grudge and enmity with the local police. He further contended that applicant has filed this bail application on ground of delay, hardship and liberty of the person. Lastly, learned counsel for the applicant prayed that applicant may be admitted to bail as the applicant is are not previously convicted, hardened and disparate criminal. To support his contentions learned counsel for applicant placed reliance upon the cases of Imtiaz Ahmed v. The State (2017 SCMR 1194), ZaiRhan Ashraf v, The State (2016 SCR 18), Humesh Gull v. The State (2015 SCMR 1092), Atta Abbas Zaidi v. The State (PLD 2017 Sindh 120), Gul Zaman v. The State (1999 SCMR 1271), Imran Amin v. The State (2002 MLD 1416), Nazir Hussain v. Sin Ul Haq and others (1983 SCMR 72), Moundar and others v. The State (PLD 1990 SC 934), Shoaib Warsi v. The State (PLD 2017 Karachi 243), The State v. Syed QAIM Ali Shah (1992 SCMR 2192) and Shahid Umar v. NAB (C.P. No,5369/ 2017).
5. Conversely, Mr. Habib Ahmed, the learned Special Prosecutor ANF opposed the concession of bail to the applicant on the ground that the applicant is also involved in other case of Charas recovery, which reflects that applicant is doing business of narcotics. Learned Prosecutor has emphatically submitted that it is settled that at the bail stage the appreciation of facts in depth cannot be considered and the Court at the bail stage has to look into the material available on the record, to determine the involvement of the accused in the commission of offence. To support his contentions he has placed reliance on the cases reported as Socha Gul v. The State (2015 SCMR 1077) and Nasiruddin Abbas v. The State (2005 UC (Supreme Court) 395).
6. Arguments advanced by learned counsel for the applicant and Special Prosecutor ANF are considered and record has also been perused.
7. Perusal of the record would reveal that applicant was arrested red handed while he was receiving charas packets and putting in the Diggy of Car. There were total 256 packets weighing 256 Kgs of Charas in this case out of which 16 packets weighing 16 Kgs of charas were recovered from the diggy of car which were kept by the present applicant. The samples so separated from the recovered lot when were sent to the Laboratory have been analyzed as "charas" by the Chemical Examiner, whose positive report is available on file,
8. 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. The Control of Narcotic Substances 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.C. 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 charge appears to be false or groundless.
9. 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. The Apex Court in the case of The State v.
Javed Khan (2010 SCMR 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-- Nalcotic 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."
10. The Lahore High Court in the case of Mst. Rafaqat Bibi v. State (2011 MLD 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."
11. Similar view has been taken by this 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, traffickingof 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 was found 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.
12. The learned counsel for the applicant could not point out any misreading, non-reading of material and law available on the subject. Applicant is also involved in some other case of recovery of Charas, which fact conceded by the learned counsel for the applicant. Mr. Shoukat Hayat, learned counsel for the applicant through his exhaustive and elaborate arguments wanted this Court to give its categorical and specific verdict regarding the applicant that he is not involved in the commission of offence under the Control of Narcotic Substances 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.
13. The Apex Court, however, has in a recent case reported as Socha Gul v. The State (2015 SCMR 1077) while considering the offences punishable under the Control of Narcotic Substances Act, 1997 to be heinous in nature and against the society at large, repelled the views of this Court as under:-- "It is pertinent to mention here that offences punishable under CNS Act of 1997 are by its nature heinous and considered to be the offences against the society at large and it is for this reason that the statute itself has provided a note of caution under section 51 of CNS Act of 1997 before enlarging an accused on bail in the ordinary course. 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 4 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. Firstly, as deeper appreciation of evidence is not permissible at bail stage and secondly, in such situation, looking to the peculiar features and nature of the offence, the trial Court may depart from the normal standards prescribed in the case of Ghulam Murtaza (supra) and award him any other legal punishment.
Thus, in our opinion, ratio of judgment in the case of Ghulam Murtaza (supra) is not relevant at bail stage."
14. 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. The case laws relied upon by the learned counsel for the applicant are not applicable as the same are distinguishable to the facts and circumstances of the case in hand.
15.For what has been discussed above, this Court is not inclined to accept the prayer of applicant for grant of bail and the bail application is accordingly dismissed. However, the trial court is directed to expedite the trial and conclude it at an earliest, preferably within a period of three months, after receipt of this order and in failure of the trial court to conclude the trial within specified period the applicant may repeat the bail application before the trial court, if so advised.
16.Before parting, it needs got to make clarification that the observations recorded above, being necessary for deciding the instant bail application, are tentative in nature, therefore, the trial court shall not be influenced in any manner whatsoever.