SHAHJAHAN LASHARI S/O MUHAMMAD ESSA (Applicant) VS THE STATE (Respondent)

Order Sheet

IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Bail Application No. 1882 of 2021

Date Order with signature of Judge

For hearing of bail application :

Mr. Mahmood Habibullah, advocate for the applicant.

Mr. Zafar Ahmed Khan, Addl. P.G. a/w I.O. ASI Muhammad Paryal of P.S. Baghdadi .

NADEEM AKHTAR, J. – Through this bail application under Section 497 Cr.P.C., the applicant / accused Shah Jahan Lashari son of Muhammad Essa Lashari seeks admission to post-arrest bail in Crime No.388/2021 registered against him on 30.06.2021 at P.S. Baghdadi Karachi South under Sections 6 and 9(c) of The Control of Narcotic Substances Act, 1997 (‘the Act of 1997’). The applicant / accused had filed Criminal Bail Application No.3133/2021, which was dismissed by the learned Sessions Judge Karachi South vide order dated

2.The case of the prosecution, as set up in the subject FIR, is that during the patrolling of the area by the police party on the date and at the time and place mentioned in the FIR, 2,500 grams of charas was recovered by the police from the applicant which was seized and sealed on the spot.

3.It is contended by learned counsel for the applicant that there is malafide on the part of the police as the applicant has been falsely implicated in the subject crime with an ulterior motive ; there is no independent witness of the alleged crime ; the matter requires further inquiry ; the applicant has no previous criminal record ; there is no apprehension that the evidence will be tampered with or that the witnesses of the prosecution will be influenced by the applicant, or he will abscond if he is released on bail ; and, no substantial progress has been made in the trial before the learned trial Court.

4.On the other hand, learned Addl. P.G. contends that the FIR clearly shows that charas was recovered from the applicant which was immediately seized and sealed on the spot ; the role of the applicant in relation to the commission of the subject offence is specific and clear in the FIR ; there was no delay in lodging the FIR ; there was also no delay in sending the narcotics recovered from the applicant for chemical examination ; the report submitted by

the Chemical Examiner supports the case of the prosecution ; and, the charge sheet in this case has been submitted before the learned trial Court. The allegation of malafide and ulterior motive on the part of the police officials has been specifically denied by the learned Addl. P.G.. It is further contended by him that the offence committed by the applicant falls within the ambit of Clause (c) of Section 9 of the Act of 1997, and accordingly it falls within the prohibitory clause of Section 497 Cr.P.C.

5.I have heard learned counsel for the applicant and learned Addl. P.G. and have carefully examined the material available on record including the test report submitted by the Chemical Examiner after examining the charas allegedly recovered from the applicant. According to the aforementioned test report, the gross weight and net weight of charas was 2,500 grams and 2,487 grams, respectively. The charas (cannabis) allegedly recovered from the applicant falls within category (i) specified in Clause (s) of Section 2 of the Act of 1997 substituted through The Control of Narcotics Substance (Sindh Amendment) Act, 2021, and the net weight thereof is more than double the maximum limit of one kilogram (1,000 grams) prescribed in Clause (b) of Section 9 ibid. Therefore, this is not a borderline case between the said Clauses (b) and (c).

6.The punishment of the offence falling under clause (c) is death or imprisonment for life or imprisonment for a term which may extend to fourteen years. Thus, the prohibition contained in Section 51 of the Act of 1997 shall apply to this case, and it also falls within the prohibitory clause of Section 497 Cr.P.C. Therefore, the applicant is not entitled to the concession of bail and there appears to be no exception to this rule in the facts and circumstances of the instant case.

7.The above view is fortified by Muhammad Noman Munir V/S The State and another, 2020 SCMR 1257, and Bilal Khan V/S The State, 2021 SCMR 460. In the former case, 1,380 grams of cannabis and 07 grams of heroin were recovered from the accused, and in the latter case the quantity of the recovered ice was 1,200 grams. In both the said authorities, the concession of bail was declined by the Hon’ble Supreme Court by holding that the prohibition embodied in Section 51 of the Act of 1997 was applicable thereto. It was also held in Muhammad Noman Munir (supra) that the non-association of a witness from the public and his non-cooperation was a usual conduct symptomatic of social apathy towards civic responsibility ; and, even otherwise the members of Page 2 of 3

the contingent being functionaries of the State are second to none in their status, and their acts statutorily presumed, prima facie, were intra vires.

8.The guilt or innocence of the applicant is yet to be established as it would depend on the strength and quality of the evidence produced / to be produced by the prosecution and the defense before the trial Court. Therefore, it is clarified that the observations made herein are tentative in nature which shall not prejudice the case of either party nor shall influence the learned trial Court in any manner in deciding the case strictly on merits in accordance with law.

9.In view of the above, the instant bail application is dismissed with direction to the learned trial Court to conclude the trial of the subject case within three (03) months strictly in accordance with law. Let this order be communicated to the learned trial Court for compliance.

JUDGE

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