Rustam Ali (Applicant) VS The State (Respondent)

5tL I

TN THE HIGH COURT OF StrNDH, CIRCUIT COURT HYDERAtsAI} Before Mr. Justice Mohamrnad I(arim Khan Agha

Cr. B.A.' No.S-882'of 20 1 6

Rustarn AIi

Versus

T'he Statc

Applicant : Rustarn AIi Throu Nandan A. I(ella, Advocate Respondent : the State Throu Mr. Shahid Ahmed Shaikh, A.P.G Date of hearing 05.04.2011

Date of order 06.04.20t1

OI{DER

:t' MOHAMMAD KARIM I(HAN AGHA J.- Through instant aPPlication, applicant seeks post arrest bail in Crime No.32 of 2016, registered. at Police Station Mehran District Mirpurkhas, under section 9(c) of Control of Narcotic Substances Act,1997 (CNSA).

2.Precisely relevant facts are that on L6.08.201.6, complainant / SW Abdul Ghafoor alongwith his suborclinate police officials while patrotling in his jurisdiction reached at l(ori Goth link ioad and after a brief chase stopped the applicant while he was driving a car and upon his personal search as weli as the said car, recovered 4.0 kilograms of charas. Thereafter, the tecovered narcotic was sealed. fol chemical examination. The case property and the applicant were brought at Police Station. FIR was registered against the applicant and after usual investigation he was sent uP for trial.

3.Learned counsel for the applicant inter a1ia, contended that he was irurocent of any offense and has been falsely implicated by the police who have foisted the case on him; that he could not be detained . tt\:

on mere allegations; that his case fell within the non prohibitciry clause as per the sentencing guidelines laid down in Ghulam Nlurtaza's case (PLD Lahore P.362) and as per s.9@ CNSA which laid clown that the sentence could be up to 14 years; that ail prosucuiion witnesses are police personnel; that recovery allegeclly effected from the applicant is charas and not heroin; that the applicant has no previous criminal record; since last around 07 months the applicant is in jail and he is not further required for any investigation; that the chemical test and report has not been carried out in accordance with the Control of Narcotic substances (Government Analysts) Rules 2001 (the Rules) ancl for all the above reasons he is entitled to be enlarged on bail.

4.In support of his contentions, learned counsel for the applicant relied upon the cases of lkramullah and others v. The state (2015 s c Iu R -1002), Shahid V State (2013 Y L R 1840) Ghularir Nlurtaza and another v. Th.e State (P LD 2009 Lahore 362) and the Rules

5.Learned.AP.G. for the state opposecl this bail application on the ground that the applicant is involvecl in heinous offence which is a Y crime against society; that a large recovery of 4 I(G charas had been made from the applicant and in the car which he was driving; that the chemicai report was positive and had been carried out as per the Rules; that the case fell within the prol-ribitory clause; that no allegation of malafide had been made against the police and that there was more than suf{icient material to corrnect the applicant to the offense for which he had been charged.

6.In support of his contentions, iear.ned A.P.G. relied upon the cases of Gul Alam v. The State through Advocate General, NWFP, peshawar (2009 PSC (Crl.) 600), Socha Gul.v. The State (2015 S C M R 10ZZ), Nadeem Ashraf v. The State and others (2013 S C M R 1538), Tariq Mehmood v. The State through Deputy Attorney-General Peshawar (P L D 2009 Supreme Court 39), The State v. Javed Khan (2010 S C M R 1989) and S.R.O.810 (1V2001 of Control of Narcotic Substances (Government Analysts) Rules, 2001.

k-b

7.I have heard the learned counsel for tire applicants, APG, p'erused the record, considered the relevant law and the case law cited at the bar.

8.As per settled larv I have only made a'tetrtative assessment of the tnaterial placed befbre ure and this order shall not pre.iuclice the case of any party at trial which shall be decided by the trial court on tnerit based on the evidence beforo it.

9.Firstly I note that the applicant's application for post trrest bail was dismissed by the trial court by order dated22-09-2016 and hence the applicant has now approached this court for post arrest bail..The applicernt has been foirnd in possession of a huge quantity of charas which has been recoverecl frorn hirn and the vehicle in which he was traveling which r,vould attract the provisions of 3.6 CNSA; there appears, frorl the record, to be no rnalatide on the part of the police or any reason as to why they rvould fbist the case on the applicant; the chemical repoft has proved positive; with regaid to the proceclure in the Rule:; to carry out the chemical examination within 72 hor"rrs I nole that this has beeu complied with..Even othenvise a delay would not be fatal to the prosecutions case as rule 4 which requires tiie samples to be sent for analysis within 72 hours of the seizure is only directory in nature and as such will nol be tatal to the prosecutions case. In this respect ret-erence may be urade to tlie case of Tariq

Y

Mehmood V State (PLD 2009 SC P.39). It is settled law that at the bail stage only a tentative appreciation ofevidence is perrnissible and not a deeper one as such whether the chemical was sent in confonnity with 5.36 CNSA can be considered at the trial stage in the light of trkramullah's case (Supra).

10.With regard to the offense talling i.vithin the non prohibitory ciairse I aur of the view that the case falls within S.9O CNSA and as per findings of the Supreme Court in the case of Socha Gul V The'State (SCMR 2015 1077) (which distinguished Ghulaur Murtaza's case (Supra) in terms of the use of' the sentencing guidelines for the grant of bail) and cotnes within the proiribitory clause and that bail should be granted sparingly in narcotics cases bearing in mind S.51 CNSA and the lact that as pel'Socha Gul's case the offense amounts to a crime against society. Purther suppoft for this proposition can also be founcl in the cases of The State v. |aved Khan (Supra) and Nadeem Ashraf's case (Supra). Furthermore, it would appear that Socha Gul's case (Supra) has overruled cases such as Shahid V State (Supra) relied upon by the applicant where by the Court was to take into account the likely sentence to be handed down on conviction basecl on r

,s rq 4

rt

the quantum of contraband recoveled at the time when bail was being considered.

i,

71,. In this case a large amount of Chalas (4I(G's) has been recoverecl flom tl-re appiicant and his r.ehicle; the cheurical report has proved to be ,. positive; the case falls within the prohibitory clause .rnd prima facie tirere is sufficient rnaterial to corurect the applicant to the offense for vrhicl-r he is charged and thus I hereby dismiss his L.eril application.

12.However, I note that the applicant has beeir ir.r custody for around n 7 months and that the charge has been framed against hjm and one PVV l out o{ four has alreaclv given eviclence ancl as such I dircct the trial coult i:

to decide this rnatter within 3 months of the date of ti-ris order. The offic,: ,j is directed to imrnediately send a copy of this order lo L'he concelneci +l trial court for compliance.

13.The bail application stands disposed of ilr the "rbove teLrns Hyderabad Dated:06.04.2017 lu E

Y

"i