GUL ZAMAN S/O MISRI KHAN (Applicant) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH. I(ARACHI

Before Mr. Justice Mohammed Kanm Khal Agha, J

Criminal Bail Application No.958 of 2OL6

Applicant Gul Zaman Through M/s. Muhammad Haseeb Jamaii & Tariq Mahmood, Advocates for the applican t.

The State Through Mr. Habib Ahmed, Spectal Prosecutor, A.N.F.

Date of hearing 23.10.2017 Date of Order: 02.r1.2017

ORDER.

Mohammed Ka rim Khan Ae ha, J: Through this Crrmrnal Barl Applicatron, the applicant seeks post arrest barl rn Crrme No.l9/2012, under Sections 619 Control of Narcotrc Sunstances Actl997 (CNSA) lodged at p.S. ANF-C, Karachr.

2.It is stated by the complarnant in the FIR thaL on 08 O7.2O12, at 8.O0 a.m. InspecLor l{hahd Rasheed of pS ANF-Chfton, Karachr lodged his report stating thereln that on 08.7.2012 he was present at hrs P.S. when through hrs hrgher Offrcers special informer gave ilm report that the nomtnatecl accused Gul Zaman S/o Misri I(han, rn FIR No.5 oI 201 1, PS. ANF Gulshan-e-lqbal, I{arachi, is present' in his house situated at Muhallah Qadria, Sher Khanabad, Orangi Town, with huge quantity of narcotrc and if immediate action wrll be tal<en then accused alongwitl-r huge quantity of r-rarcotic will be recovered. On receipt of sard tnformation tn order to take immediate action and receiving directton from his hrgher l:-

of hrmself' authoritres he prepared a rarding party conslstlng S.I-Maqsood Ahmed Mazhar ' ASI-Afzal Nazeer' PC- constabie Salma Muhammad Ma1rd, PC-Mazharuddin' iady' he could not and other ANF sta-ff' As it was late at night was apprehensron of obtain search warrant, however there of narcotic and removlng the evrderlce' As per shifttng duly dressed and drrectrons'they alongwrth special informer government vehicles armed w.rth officiai weapons on two Asmatullah Khan under the supervision of Deputy Director 0 500 hours' lelt under roznarrracha entry No ' 12, at about reached at Muhallah their P.S. and at about 0600 hours' they Town' Sector 3 Then due to Qadria, Sher I(hanabad, Orangi non-avarlabilrty of private mashrrs he cited S'l' Maqsood mdshtrs and on the Ahmed Mahar and ASI Afzal Nazeer as the door of house pointation of specral informer they knocked Orangr Town' No.232, Muhallah Qadria, Sher l(hanabad' Sector-3,Karachi,onwhlclronepersonopenedthedoor,who they apprehended on seeing them trred to close the door but name to be Gul hrm On.inqurry sard person disclosed hts Zaman S / o Mrsri l(han, R/o House No'232' Muhailah Qadria' No'3' Karachr' orrgrnal Sher I(hanabad, Orangi Town' Sector residentofMuhallahHalrNoorAli,I(aliZatganKhall,Post He rnqurred about Office Dara Adam Kharl Distrtct Mohat he dlsclosed that the narcotic from the accused on whrch main gate of hts house' narcotic is lyrng in Otaq situated near aqcused lead them whose door open towards Street The secured three whlte colour toward Otaq and got lt opened and Complainant checked plastrc bags below the qurlt lnspector / found 20 packets wrapped said three whrte plastic bags and withkhal<rsolutrontape'insecondwhrteplastlcbag'22 tape and from 3'd white packets wrapped wrth khaki solution plastic bag complainant/ lnspector found ntne packets colour seven packets of goldeu lying tn blue colour forl packing' therelore' Complainant colour paclclng vlz' total 16 packets' he 58 packets from all three whlLe plastrc bags anh recovered of alongwrth arms iicenses secured one plstol MP-446 VIKING l'"/

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accused Gui Zaman, t',vo magazlnes containing 15 hve bullets and 1O hve bullets near the white plastic secured bags and he r.veighed the secured 50 packets and weight of eacl-t packet become 12OO grams. Thus total werght of secured packets become 69.600 kilograms. Complarnaut opened the secured 50 packets one by one and from each packet charas was + recovered. Thereafter he kept the said packets of charas in each white colour plastrc bag rn same quantity and then sealed the same for chemtcal examination Then he took personal search of the accused Gul Zaman and secured one brown colour purse ln whrch four currency noLes of Rs.1O00/=, orrgrnal CNIC of accused Gul Zaman' two U-Phone sims, two Zong sims and different chrts were lyidg and secured one Nokia mobrle phone with Telenor stm from- fronl pocket of the shirt of accused. Later on he conducted search of th. hor". of accused through lady pohce constable Saima and other gents staff, but no any other tncrtmtnating artrcle was recovered from the house of accused Thereafter he prepared memo of arrest ald recovery on the spol- and ther-r read over the contents of the mashtrnama and obtarned slgnatures of both mashrrs on tt and so also sealed parcels' Hearrestedtheaccusedandreturnedbacktopolrcestatlon A.N.F. where he iodged the FlR. I

3.After usual tnvesttgation challan was submrtted, the 1 charge was framed to lvhich the applrcant opted for trial and

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thereafter the trial Proceeded

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4 Learned counsel for the app'licant/ accused mainly ,l the sought batl on accoul-lt of statutory delay/ l-rard shrp sit-rce i of trral of the applicant had not been concluded after a lapse rn the almost 5 years and there was no sign of its conclusion not near future because the prosecutlon wltnesses r'vere coming forrvard and the delay was not caused due to any faultonhrsbehalf.Hepolntedtovariousdiarysheetsttr j, support of his contentiot-is' Ir-t l

5.He also, in support of his contentions, placed reliance on the following case 1aw Muhammad Ismail V' Muhammad l Rafique & another (PLD 1989 SC. 585), Amir V' The State (PLD lg72 SC 277\, Iqbal V. The State'(2001 YLR 743)' Muhammad Hussain V. The State (2O12 YLR 768)' Khalilur Rehman V. The State (2O08 YLR 1575), Muhammad Khan V. Muhammad Bashir & others (2003 SCMR 4271, Muhammad Aslam V. The State (1999 SCMR 2147), Gul Zarrrar- V. The State (1999 SCMR 1271), Muhammad Afzal

Butt atiai APHI v. The State & others (2015 SCMR 1696)' The State through Deputy Director Anti Narcotic Force' I(arachi V. Syed Abdul Qayyum (2OO1 SCMR l4)' Jamal-ud- din alias Zubair I(han V' The State (2012 SCMR 573)' Imtiaz Ahmed V. The State through Special Prosecutor' ANF (2O17 SCMR 1194), Anwar Ali & another V' The State

(2OO2 P Cr. L,J. 186), Muhammad Anwar V' The State (2001

YLR 611), Anwar ZamanV' The State (2017 MLD 32)' Dildar V' The Ali, P.C. V' The State (2O09 M L D 133)' Ziarat Khan State (2010 MLD 1908), Christophe Yakibongay V' The

State (20i2 MLD i503) and an order passed in Special Case trral Court No. 58/2O13 dated 12-09-2 103 by the learned opposed

6.Learned Special Prosecutor, ANF vehemently that the the grant of bail to the applicartt who contended of the accused delay had been caused largely because one and it took time to who had been granted bail had absconded grounds of delay recapture him; that statutory bail on the now the trial was not available in cases under the CNSA; that since the co- could be concluded in a short span of time accused had been arrested and was in custody especially as had already given his he agreed that after the present PW who or-rly examine A evidence in chief the prosecution would the IO who vvas maximum of 2 further PW's whicl-r included conte ntions he Placed ready and available' In support of his Director, Anti reliance on The State through Deputy ltv

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Narcotic Force, Karachi V. Mobin Khan (20O0 SCMR 299), Rana Shahicl Mashi V. The State (2012 P Cr. LJ 878)

7.I have heard the learned counsel for the parties' perused the materiai available on record and considered the case law cited at the bar.

B. In deciding such cases in my view it is always a question of balance and the authorities cited on both sides tend to be either for the grant of bail in such cases or against it. It appears that much will depend on the particular facts and circumstances of each case.

g. In this case in my view it is a question of how long a person can be kept behind bars prior to the conclusion of his trial i.e. hardship verses a1l other relevant factors' i0. It appears that the applicant has been behind bars for around .five years without conclusion of the trial mainly not on account of his fault and the last direction to by this Court to the trial court to compiete the tria'l within a specified period of time has not been complied with by the trial court' The applicant has a right to an expeditious triai as is guaranteed under A. 10(A) of the Constitution' Thus, there need to be I strong reasons for l<eeping the applicant belind bars for any longer which we shall now consider

11.Factors militating against grant of bail on hardshiP grounds.

(a)S.51 CNSA provides that bail is not available iu cases where the death sentence may be awarded' S'5i CNSA reads as under:

"51. No bail to be gralted in respect of certain ofl-ences.---(1) Notwithstanding anything Criminal contained in sections 49 6 and 497 of the not Procedure Code, 1889 (V of 1898)' bail shall be granted to an accused person,charged other with tn iff.rr." under this Act or under any is law relating to narcotics where the offence punishable with death"'

(b)The case has been challaned under S.9 (C) CNSA which due to the quantity involved may lead to the death pena-ity or a life sentence at the minimum. S.9 CNSA reads as under:

9.Punishment for conviction of sections 6, 7 and 8----Whoever contravenes the provisions of Sections 6,7 or 8 shal1 be punishable with-

(a)imprisonment which may extend to two yea-rs, or with fine, or r,vith both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or lessl

(b)imprisonment which may extend to seven years and sl-rall also be liable to fine, if the quantity of the narcotic drug, psycl-rotropic substance or controlled substance exceeds one 'hundred grams but does not exceed one kilogram;

(c)death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause(b):

Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life." (bold added)

(c)In this case a massive amount of charas (69'6 KGi has been recovered which potentially could lead to the death penalty and therefore the exclusion of bail ' (df That a brief review of the prosecution evidence tends to show that there is sufficient material on record to connect the applicant to the offense for which he has been charged and thus on merits his post arrest trail would be declined. For example, all the PW's support the prosecution case, the recovery was made from the applicant on the spot in his own home; the amount .icovered was of a huge quantity, a positive chemical report is available. Though such finding in this order is only tentative and will have no bearing on the case of tfre trial of the applicant which will be decided on merit on the basis of the evidence which is lead before the trial court.

(e)That the applicant hails from KPI( so the possibility ol his abscon"io., if he is granted bail cannot be ruled out keeping in view the material against him as other co-accuaed have already absconded in the same case

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when granted bail despite having lesser roles -than the applicint in the commission of the offense' Hence the bail granting order to sorne of the co;accused dated 23- Og-2"O13 is of littte assistance to him in terms of the rule of consistency especially as some of those co-accused who were g."-.rt.d bail through that order subsequently absconded.

(f)That this is the 3'd separate case unde.r the CNSA #lri.f, the applicant has been involved in whicha si-rggests that if not a habitual offender he is probably hardtned criminal.

(g)That trial court not complying with .a Courts Jirection to complete a trial within a specified period of time does not automatically give the right to bail t-ror does it even amount to a fiesh ground for bail as it is noted that the applicants last baii application wasa Jiwo".a of vide trder dated 25-02-2016 with ln direction to complete the tria-l within two months this respect reference may be made to- the^case of Nisar Ahmed v. The State & oihers (PLD 20-16 S C' 11) crime, which is

(h)That drug " is a heinous -a dealing |eg*a.a as crime against soc-iet5r and hence the ptkltiriry of capital punishment' In the case of Socha bul v state (2o15 SaMR lo77\ it was held as under at

P.1081

rF .' "It is pertinent to mention here thatare offences by its poti"t able under C'N'S' Act of 1997 - be nature heinous and considered to and itthe is offences against the society at large- for this reason that the statute itself has provided a note of caution under section 5L of b.w.s. e.t of t997 before enlarging an accused on bail in the ordinary-under course' When we refer to the standards set out section 497 ' Cr'P'C' io, g.utt of bail to an accused involved in an offenlce under section 9(c) of C N'S' Act of even on that basis *" tna that an accused charged with an offence, prescribing various punishments, as reproduced above' is.not entitled ior grant of bail merely on account of the nature or ql-r.lr-ttity of narcotic substance' being ' four [iiogr"-". Firstly, as deeper app.reciation of 'permissible at bail and evidence is nol -stage in such situation' Iooking to the peculiar trial Court ' features and nature of the offence' the "e"ondiy, prescribed . may depart from the normal standards and in the case of Ghulam Murtaza (suprll .awar-d ln our him any other legal punishment' Thus' ratio of iirdgment in the case of Ghulam "pi"i"", rt;;;;;(supra) ii nJt telt'at't at bail stage'" (bold added) /'t

(i)It is true that the Superror Courts have on occaslon granted barl in a CNSA case which was sublect to the f,eath penalty however this has only been done o.td ,r, cases distinguishable on . their own "p..-gly facts and crrcumstances from the current partrcu"lar case. For example, rn the case of Gul Zamarr V' The i 999 Sbivrn i zz t; However rn that.

State 'had ( .

case the l ;;;.;. not been framed and the material against the ipplicant was fltmsy to say the least and appeared ln to be more based on "r"p'<:tott tl-r an solrd evidenceThc the case of Jamal-ud-din alias Zubait Khan V' ii"t" IZOf Z SCMR 573) in consideltng^the rmposttton of the death penalty tu-rder S.9 O of the CNSA it was held not to that while'hearing a barl petrtron the bourt.wasStatute i.""p i" view the ria-*im utrt sentence provrdecl, by bearing in but the one which was likely to follow case' mind the facts and circumstances of the In the facts ;;;; ," hand in my vierv based on tl're particular artd ctrcum stances ol this case on conviction the tf lp;f,"""il" rff."rv ,o be sentencecl to life impnsonment and tf-," death penalty due to the huge rccovery o[ "ii ;1;;rc evidence against hrm' In the recent case Imtiaz Ahmed V' The State where through Special p.o"".rt"r, ANF (2017 SCMR 1194) the trial had was taken aimost 3 years to complete t1-re apphcant up and granted bail trecause the PW's ivere not turnlng the IO rvho was the star witness of the prosecution *.= , frrgiti"e from law and therefore would not turn ,p-""a i" ",r.h the completion of *"-, t^tt' was not foreseeable in the near future Thrs is drstrnguishable fromthiscaservhere.r,"to,"verymuclravatlableallcl ready to gtvc evtdet tce specral prosecutor [) That tn the tnstant case theofANF 2 more wttnesses and has agreed to call a *-'irt" trial- can be slnce there are only 2 accused the can tre as such completely relatively quickly now and completed in the near future'

delay tn

12.Thus; although l condemn the prolonged possible terms taking conclusion of the trial in the strongest into account all of the above factors I am of the considered

view that thls matter can be dealt with by lssurng a further directrontothetrialCourttocompletethetrralwrthrnagiven period.

dtsmtssed and the trial 13 . Hence, this barl apphcation ts a day to day basrs and court rs drrected to hear thc matter on h.-

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trial within 3 months of the date of this order' complete.the a copy of this order immedrately to The offrce shail transmit submit trial court for compliance which sha1l the concerned through MIT ll ' fortnrghtlyprogress reports to this court 1 of in the above terms 14.The above petitron rs disposed

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