1. ' The applicant seeks bail in a case under sections 6, 9, 12/13 of Control of Narcotic Substances Act, 1997 (Crime No,10 of 1999, Police Station A.N.F.-II), pending trial before the Court of learned Sessions/Special Judge, (A.N.F.), Karachi (West).
2. ' The prosecution case briefly stated is that the applicant Ali Muhammad and the co-accused Abdul Hameed were found going in a car at 4-00 p.m. On 3-6-1999 near Police Training College, Hub River Road, within the jurisdiction of the A.N.F.-II Police Station. It is alleged that the complainant party signalled the car to stop but the driver of the car speeded it up when after a chase the car was stopped. Before taking search of the car, some public men were asked to witness the search and act as Mashirs but they did not agree to that. Hence, the car was searched in presence of Mashirs. S.-I. Khaliduddin and P.C. Muhammad Hassan. As a result of the search, 5 Kgs. Charas was secured, from underneath the front seat of the car. The accused disclosed their names as Ali Muhammad and Abdul Hameed. It is further alleged that from the posession of applicant cash of Rs,400 and from co-accused Abdul Hameed Rs,200 were secured. Since the Charas was in five separate packets a quantity of about 20 grams from each packet was taken out for the purpose of sending the same to the Chemical Analyser for examination and report. The secured property was sealed and taken to the police station alongwith the accused, where F.I.R. Was lodged.
3. ' The police also secured Registration Book and other relevant papers pertaining to the car besides the car. At the conclusion of the investigation, the applicant Ali Muhammad and co-accused Abdul Hameed have been sent up for trial.
4. ' It has been contended on behalf of the applicant that the applicant was not owner of the car and he was merely 'a passenger sitting in the car. It is also contended that there is violation of section 20 of Control of Narcotic Substances Act inasmuch as no search warrant was obtained from the trial Court and further there is violation of subsection (2) of section 21 of the Act to the effect that no information, required under that subsection, was sent to the immediate superior officers. It is further argued that the names of the persons who were asked to act Mashirs have also not been disclosed. He further urged that the applicant suffers from heart disease and there is such report of the Jail Doctor on record. Learned counsel has placed reliance on the case reported in 1997 SCM R 361, 1999 SCMR 1279 and 1997 M LD 1473.
5. ' On the other hand, learned counsel for the State has argued that the applicant is the owner of the car while the co-accused Abdul Hameed is an employee and driver of the applicant. The quantity of Charas secured from the possession of the applicant and the co-accused weighed 5 Kgs., therefore, the offence falls under section 9(c) of the Act, 1997, and is punishable with death. As regards the violation of section 20 of the Act, learned State Counsel has argued that it is not a mandatory provision of law while the provisions of subsection (2) of section 21 of the Act have been complied with.
6. Admittedly, the applicant and the co-accused were travelling in a car which on its stoppage was found containing 5 Kgs. Of Charas in different packets of 1 Kg. Each. The offence calls for death penalty. The non-association of private persons as Mashirs has been explained in the F.I.R. We have perused the report of the Doctor, District Jail, which is in terms that the "ECG was done in the jail on 6-7-1999 which is normal and does not show any fresh change". There is nothing in the certificate that the detention of the applicant would be detrimental or dangerous to his life. We have also gone through the case-law referred to in support of the case of the applicant but we find that the same are not relevant to the present case. Since, no further arguments have been put forth to the effect that the applicant would not be responsible for such recovery or that the alleged quantity of Charas was not being transported, we are of the considered view that the applicant is not entitled to the grant of bail at this stage. Accordingly, the bail application is dismissed. We would, however, direct the trial Court to proceed with the trial of the applicant in this case as expeditiously as possible.