MRS. KAUSAR SULTANA HUSSAIN, J.---On dismissal of Bail Application No, 643/2017, by the trial Court, vide order dated 25.10.2017, the applicant has approached this Court, by filing instant bail application under Section 51 read with Section 497, Cr.P.C, for post-arrest bail in case FIR No, 541/ 2017, under Section 6/9(c) CNS Act, 1997, registered at Police Station Darakhshan, Karachi.
2. Story of the prosecution case in nutshell is that complainant ASI-Abdul Rehman Abro of Police Station Darakshan, Karachi lodged FIR on 13.10.2017 at about 0:130 hours and alleged therein that he along with PC Malik Ameer and PC Khaiid Mahmood left PS in official mobile for patrolling and during patrolling received spy information that a person was selling charas at Khayaban-e- Bukhari near Misri Shah Baba Tomb, Karachi. On such information complainant's party reached at the spot at about 00:30 hours and on pointation of spy found a person standing near a motorcycle bearing registration No, KGX-2404, who was apprehended and he disclosed his name as Wajahat Ali Zaidi son of Gulzar Hussain Zaidi, his search was conducted and he was having polythene bag in his right hand containing packet of charas and upon weighing through digital scale, the weight of the Charas was 2250 grams. After observing required formalities at the spot the arrested accused along with recovered contraband Charas brought at PS where FIR was lodged against the accused.
3. Arguments heard. Record perused.
4. Learned counsel for the applicant contended that applicant/accused is innocent and falsely implicated in this case by the police with mala fide intention and ulterior motives. He next contended that there is clear violation of mandatory provision of Section 21 of CNS Act. He further contended that there is violation of Section 103, Cr.P.C. He also submitted that no sample was drawn for chemical analysis from the alleged recovered Charas. He lastly prayed for grant of bail.
In support of his contention learned counsel for the applicant relied upon the case law i,e, 2006 M LD 1961 (Karachi), 2009 M LD 335 (Peshawar), 2003 PCr.LJ 1139 (Peshawar) and 2008 M LD 442 Karachi.
5. Learned Deputy Prosecutor General, Sindh opposes the concession of bail to the applicant on the ground that evidence of police officials is as good as any other respectable person, more particularly, in view of Section 25 of the CNS Act, provision of Section 103 Cr.P.C. is not attracting.
Undoubtedly, case falls under the prohibitory clause; 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 is concerned, it may be observed that section 25 of CNS Act excludes the application of section 103 Cr.P.C.
6. After hearing the arguments and perusal of the record it reveals that it is, the case of alleged recovery of Charas from exclusive possession of the applicant/ accused weighing 2250 grams and as per section 9(c) of the CNS Act conviction for recovery of contravene more than one Kilogram is death or imprisonment for life or imprisonment for a term which may extend to 14 years and shall also be liable to fine upto one million rupees, hence his case falls under prohibitory clause. Besides this sections 21 and 25 of CNS Act are very much clear. Section 21 deals with, power to entry, search, seizure and arrest without warrants by an officer not below the rank of SI of police or equivalent authorized in this behalf by the Federal Government or the Provencal Government. It has been decided by the Honourable Supreme Court in case reported in 2009 SCM R 291 that investigation by unauthorized officer is an irregularity curable under section 537, Cr.P.C. So far as concerned for peal of the applicant/accused in respect of violation of Section 103, Cr.P.C., it has been decided by the Hon'ble Supreme Court in case reported in 2009 SCM R 306, 2001 PCr.LJ 398 that section 25 of CNS Act, 1997 excluded the applicability of section 103 Cr.P.C. in Narcotic cases, I hereby reproduced the section 25 of CNS Act:
25. Mode of making searches and arrest. ---The provision of the Code of Criminal Procedure, 1.898, except those of Section 103, shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrest and searches made under these sections.
7. Whatever mentioned above, I reached at the irresistible conclusion that the applicant is not entitled for grant of bail. Consequently, the instant bail application is dismissed. However, the trial Court is directed to examine complainant and one mushir of recovery within one month hereof and dispose off the matter within a period of two months, after receipt of this order.
8. Before parting, it needs not to make clarification that the observations recorded above are tentative in nature, therefore, the trial Court shall not be influenced in any manner whatsoever.
Above are the reasons of short order dated: 12.02.2018.