Section 6 Control of Narcotic Substances Act 1997

Section 6 : Prohibition of possession of narcotic drugs, etc.

2018 MLD 1971 KARACHI-HIGH-COURT-SINDH

REHMAN SHER VS State

Ss. 6, 9(c), 25 & 29—Possessing and trafficking narcotics—Appreciation of evidence—Twenty kilograms of charas was recovered from the diggi of taxi, which was in full control of accused being its driver—Quantity of narcotic exceeding ten Kilograms, case fell under Cl.(c) of S.9 of Control of Narcotic Substances Act, 1997, for which death penalty or imprisonment for life had been provided—Record of taxi in question had shown that registration number affixed on the taxi was false one which had been allotted to a truck—Case of accused fell within four corners of S.6 of Control of Narcotic Substances Act, 1997—No enmity, ill-will or grudge had been alleged against prosecution witnesses—Sufficient material had been brought by the prosecution on the record, including report of Chemical Examiner relating to positive report of narcotic substance—Section 25 of Control of Narcotic Substances Act, 1997 had excluded the application of S.103, Cr.P.C.—Alleged recovery was witnessed by the Excise Officials and accused had failed to bring anything on record that he had falsely been roped in the offence because of any rivalry with the official witnesses—Person who was on driving seat of the vehicle, would be held responsible for transportation of narcotic having knowledge of the same—Evidence led by the prosecution, was in line with the case with no material variation or lapses—Memo of recovery and the FIR, stood fully corroborated and proved to the satisfaction of the Trial Court—No defence evidence at all had been adduced—Prosecution having successfully proved its case against accused, Trial Court had rightly convicted him.

2018 MLD 422 KARACHI-HIGH-COURT-SINDH

Syed WARIS KHAN VS State

Ss. 6 & 9(c)—Criminal Procedure Code (V of 1898), Ss. 340 (1) & 537—Constitution of Pakistan, Art. 10-A—Federal Capital and Sindh Courts Criminal Circulars, Chapter VII, Circular 6—Possession of narcotic drugs—Appreciation of evidence—Accused’s right to be defended by counsel—Ten packets (10 Kg) of charas was allegedly recovered from rear seat of rickshaw driven by accused—Offence under S.9(c) of Control of Narcotic Substances Act, 1997 was punishable for death or imprisonment for life therefore accused was required to be defended by a counsel and trial to be conducted in presence of his counsel—If accused was unable to engage counsel, Trial Court would have provided facility of a counsel on State expenses before framing of charge—In the present case, charge and examination-in-chief of one prosecution witness was recorded in absence of counsel for the accused—Trial in absence of counsel for the accused was an illegality which could not be cured under S.537, Cr.P.C.—One of the duties of Trial Court was to see that accused was represented by a qualified legal practitioner in the case involving capital punishment—Trial Court did not perform its function diligently so as to protect the rights of the accused in the case involving capital punishment—Case was remanded to Trial Court for re-trial after framing fresh charge in presence of the advocate for accused—Appeal was allowed accordingly.

2018 MLD 129 KARACHI-HIGH-COURT-SINDH

ASGHAR ALI VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 14 & 15—Possession of narcotic drugs, aiding, abetment or association in narcotic drugs—Bail, grant of—Further inquiry—No private witness was associated in spite of prior spy information—Representative part of recovered narcotic for chemical analysis was sent with delay—Accused was behind the bars since nine months and was no more required for any purpose of investigation—Prosecution had not claimed that accused was previously involved in same nature of cases—All the prosecution witnesses were Police Officials hence there was no question of tampering with the evidence—Prima facie, accused had succeeded to bring his case within purview of subsection (2) of S.497, Cr.P.C.—Bail was granted accordingly.

2018 YLRN 126 KARACHI-HIGH-COURT-SINDH

MAJID BALOCH VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(b)—Possession of narcotic drugs—Bail, refusal of—Accused’s bail application before Trial Court had already been dismissed by a well-reasoned order which required no interference—Question of amount of sample of norcotic substance for examination of Chemical Examiner could not be gone into at bail stage as the same required a deeper appreciation of evidence—Accused was caught red-handed at the airport attempting to smuggle heroin in an ingenious manner—Narcotic was concealed in the baggage at the Airport, thus there was no chance that same was foisted on accused—No enmity had been alleged between customs officials and accused—Chemical report was positive—Accused was not entitled to bail in circumstances— Bail was refused accordingly.

2018 PCrLJN 228 KARACHI-HIGH-COURT-SINDH

SULTAN ROOM BADSHAH URF BACHA VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c) & 25—Possession of narcotic drugs—Bail, refusal of—Section 25, Control of Narcotic Substances Act, 1997 expressly excluded applicability of S. 103, Cr.P.C. in narcotic cases—Non-existence of criminal record of accused could not be made sole basis for grant of bail—Ground that S. 6, Control of Narcotic Substances Act, 1997 was not attracted as police did not apprehend any purchaser of narcotics was misconceived as said section was also applicable to mere possession of narcotics—Prima facie, accused was apprehended red-handed in possession of narcotics—Bail was refused accordingly.

2018 PCrLJN 126 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SAEED KHAN VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic drugs—Bail, refusal of—No adverse inference for having not associated the private person in recovery proceedings could be drawn against prosecution—Report relating to the samples of charas (narcotic) sent in sealed parcels to Forensic Science Laboratory was positive—Contention that accused was taken away by three/four persons eleven days prior to the incident was without any material consideration—Offences punishable under the Control of Narcotic Substances Act, 1997 were against society at large and were heinous in nature, therefore, approach of court was to be dynamic and technicalities would be overlooked—Bail was refused.

2018 PCrLJN 82 KARACHI-HIGH-COURT-SINDH

ARIF GUL VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic drugs—Bail, refusal of—Accused was having huge quantity of Hasheesh (narcotic) weighing three kilograms—Accused seemed habitual offender/seller of narcotics—Offence punishable under Control of Narcotic Substances Act, 1997 was offence against the society—Testimony of police official could not be excluded, no enmity was alleged by accused—Bail was refused accordingly.

2018 PCrLJN 75 KARACHI-HIGH-COURT-SINDH

AFZAL AHMED VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c) & 51—Possession of narcotic drugs—Bail, refusal of—Huge quantity of narcotics 20.8 kilograms in weight was recovered from consignments belonging to accused—Chemical Examination Report was positive—Punishment of offence by the accused fell within prohibitory clause of S. 497, Cr.P.C.—Section 51 of Control of Narcotic Substances Act, 1997 provided that bail would not be granted to accused charged with offence under said Act or any other law relating to narcotics where offence was punishable with death—Discretion under S. 497, Cr.P.C. could not be exercised with regard to offences punishable with death or imprisonment for life unless court was satisfied that charge was false or groundless—Deeper appreciation of record at bail stage could not be gone into but only it was to be seen as to whether accused was, prima facie, connected with commission of offence or not—Case of accused was distinguishable from case of co-accused who had already been admitted to post-arrest bail; rule of consistency was not applicable to the present case—Bail was refused accordingly.

2018 PCrLJN 30 KARACHI-HIGH-COURT-SINDH

TAIZ ALI VS State

Ss. 6 & 9— Possession of narcotic drugs— Appreciation of evidence—Benefit of doubt—Complainant had deposed that opium was recovered in the round shape from the possession of accused but at the time of cross-examination he replied that opium produced in Court was not in round shape—None of the prosecution witnesses had deposed as to what had happened to the recovered substance after its recovery and with whom the same had been deposited for safe custody for such a long time—Prosecution witnesses had given different versions with regard to the places of patrolling for reaching at the place of arrest of accused and recovery of opium as given by the complainant—Although applicability of provisions of S. 103, Cr.P.C. had been excluded under the Control of Narcotic Substances Act, 1997 yet it did not debar or prohibit the officers making recoveries on such places which were necessarily surrounded by people to take some steps to associate private persons in the process so as to lend credence to the recovery and create confidence in general public—Accused had raised a specific plea that they had been involved falsely by police, in such circumstances prosecution evidence required independent corroboration which was lacking in the case, therefore, case of prosecution was doubtful—Accused was entitled to benefit of doubt—Conviction and sentence recorded by the Trial Court was set aside—Appeal was allowed accordingly.

2017 PLD 74 PESHAWAR-HIGH-COURT

MUHAMMAD FAYAZ VS State

6—Criminal Procedure Code (V of 1898), S. 516-A—Case property—Custody and disposal of narcotic substance—Procedure—Right of accused—Destruction of case property, pending trial—Scope—Notice must be given to the accused person, at the time of passing the order of destruction of the case property—If the court suo motu passed order for destruction of narcotics, even then, it was essential to give notice not only to accused but also to prosecution so that after hearing contentions and objections, if any, by any party, order of destruction of property could properly be passed—Non-issuing notice to the accused and without hearing him before passing the order of destruction of the case property made the case doubtful, benefit of which was to be given to the accused—Appeal was accepted and conviction and sentence of accused were set aside.

2017 YLR 604 LAHORE-HIGH-COURT-LAHORE

AFTAB VS State

Ss. 9(b) & 6—-Criminal Procedure Code (V of 1898), S. 516-A, Second proviso—Possession of narcotic drugs etc.—Appreciation of evidence—Safe custody of narcotic substance, requirement of—Two reports of Chemical Examiner, first negative and second positive, regarding same substance were available on record—Second sample parcel was prepared without permission of Magistrate—Effect—Heroin weighing five hundred grams, was alleged to have been recovered from possession of the accused while he was transmitting the same—Trial Court convicted the accused and sentenced him for imprisonment for five years along with payment of fine—Prosecution had not established safe custody of the recovered substance, as reports of the Chemical Examiner regarding the same were contradictory—Prosecution witness deposed during cross-examination that he had delivered the sample parcel to the office of Chemical Examiner, but his report revealed that said sample did not contain heroin—Prosecution witness deposed that he had prepared a fresh sample of the case property and sent the same to Chemical Examiner after moving an application to Magistrate in that regard; neither such application nor order passed on the same by the Magistrate were available on record, which had falsified the prosecution case—Said witness also deposed that at time of preparing the sample, Moharrar was not with him—Said witness, having prepared the second sample of the case property, had sent the same to Chemical Examiner without any permission of the Magistrate—Section 516-A, second proviso, Cr.P.C. empowered the court to order, suo motu or on an application of any party and under its supervision and control, to obtain and prepare samples of the case property—Another prosecution witness also claimed during cross-examination that the second sample parcel had been handed over to him—Said contradiction with regard to the date of preparing and handing over of the second sample parcel to the Moharrar had created serious doubt; therefore, no implicit reliance could be placed on such type of evidence—Nothing was available on record to establish as to in whose presence said second sample had been prepared—Second positive report of Chemical Examiner did not carry any weight, especially, in absence of any evidence with regard to the safe custody of the recovered substance and due to the material illegality committed while preparing the second sample parcel—In view of the said material illegalities and contradictions, prosecution had failed to prove the case beyond any reasonable doubt through material and cogent evidence—High Court, setting aside impugned order, acquitted the accused—Appeal was allowed in circumstances.

2017 PCrLJ 1077 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YASIR VS State

Ss. 9(b), 9(c) & 6— Criminal Procedure Code (V of 1898), S. 382-B— Possession of narcotic substances/drugs— Sentence, quantum of—Determination—Weight of the contraband—Accuracy of weight of contraband to be determined by experts of Forensic Science Laboratory/Agency—Scope—Accused was convicted and sentenced under S. 9(c) of the Control of Narcotic Substances Act, 1997—Contention of accused was that he should be sentenced under S. 9(b) instead of S. 9(c) of the Control of Narcotic Substances Act, 1997, since sample of recovered contraband, when subjected to chemical analysis, weighed much less than what was determined by Investigating Officer—Validity—Recovery of contraband (charas) from the accused stood proved, and 1015 grams of the same were recovered, out of which 10 grams were sent for chemical examination, which report reflected the 6.22 grams instead of 10 grams, which raised serious questions about accuracy of scale used by Investigating Officer at time of weighing of contraband, and therefore, scale used by the Investigating Officer was defective—Weight of contraband was of vital importance in deciding quantum of sentence and even difference of one gram was significant and in cases of controversy regarding weight of contraband, preference was to be given to the scale used by experts of the Forensic Science Laboratory—High Court observed that keeping in view deficiency found in weight of the sample, weight of total contraband recovered from accused should be determined after deduction of a percentage from 1015 grams, which meant, that the actual weight of the charas recovered became 631 grams, which fell within the purview of S. 9(b) of the Control of Narcotic Substances Act, 1997—Conviction of accused was converted from that under S. 9(c) of the Control of Narcotic Substances Act, 1997 to one under S. 9(b) of the Act, and his sentence was modified accordingly, along with benefit of S. 382-B, Cr.P.C.—Appeal was disposed of, accordingly.

2017 YLR 2308 KARACHI-HIGH-COURT-SINDH

RAEES KHAN VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(b)—Possession of narcotic drugs, etc.—Bail, grant of—Further inquiry—Accused was apprehended at the Airport and allegedly twelve polythene packets containing 580 grams crystalline amphetamine were recovered from his suit-case during scanning the baggage—Recovered packets were not weighed separately—Lodging the FIR prior to preparation of recovery and arrest was deviation from prescribed procedure and violation of principles of administration of criminal justice, which had created doubt about sealing and weighing of recovered narcotic substance—Challan had been submitted before the Trial Court and during period of more than five months charge had not been framed—No probability of early commencement of trial existed—Witnesses were government officials, hence there was no apprehension of tampering with prosecution evidence—Alleged offence was punishable up-to seven years which did not fall within ambit of restraining clause of S. 497(2), Cr.P.C.—Accused had succeeded to make out case for grant of post-arrest bail on the ground of further inquiry as contemplated under S. 497(2), Cr.P.C.—Bail was granted accordingly.

2017 MLD 1576 KARACHI-HIGH-COURT-SINDH

Mst. ROZINA BEGUM VS State

Ss. 6 & 9 (c)—Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic substance—Appreciation of evidence—Police officials as sole recovery witnesses, competency of—Principles—Prosecution case was that 30-kilograms charas was recovered from the suitcases of accused—Prosecution witnesses were police officials—Defence had alleged that no railway employee or private witness was associated by the police—Validity—Section 25 of Control of Narcotic Substances Act, 1997 had excluded the applicability of S.103, Cr.P.C. in narcotic cases—Appeal was partly allowed, conviction of accused was maintained but her sentence was reduced from life imprisonment to rigorous imprisonment for five years and six months.

2017 MLD 1576 KARACHI-HIGH-COURT-SINDH

Mst. ROZINA BEGUM VS State

Ss. 6 & 9(c)—Possession of narcotics—Appreciation of evidence—Recovery of charas—Sentence—Humanitarian grounds—Admittedly accused was a woman and it was alleged that she was not expected to be involved in the business of drug or had the strength to carry two suitcases—Scope—Normally drug peddlers had adopted obnoxious device by engaging womenfolk and the children and through them, crimes were being committed and ultimately mercy was sought against such accused on humanitarian grounds—Adequate punishment, instead of showing sympathy on the ground that accused was woman or child, would be awarded to curb such menace otherwise the actual accused involved in such heinous crime, which was against the society, would be encouraged and carriers would be freely available to promote the crime with the hope that after spending small period in the prison, they would be set at liberty despite of committing heinous crime of drug trafficking—Appeal was partly allowed, conviction of accused was maintained but her sentence was reduced from life imprisonment to rigorous imprisonment for five years and six months.

2017 MLD 1576 KARACHI-HIGH-COURT-SINDH

Mst. ROZINA BEGUM VS State

Ss. 6 & 9(c)—Possession of narcotics—Appreciation of evidence—Sentence, reduction in—Prosecution case was that a total of 30 packets of charas, each weighing one kilogram (gross) were recovered and seized from the accused—Two out of the thirty packets were of a black/cream color whereas the remaining twenty eight packets were of a red/brown colour—One out of the two black/cream coloured packets and two out of the twenty eight red/brown packets were sealed and sent to the Chemical Examiner for analysis—Circumstances of the case showed that sampling had not been done as per requirement of law as the samples of charas sent for chemical analysis were not representative samples of the entire seizure—Accused was therefore, liable for three kilograms charas and not 30-kilograms as was the prosecution case—Appeal was partly allowed, conviction of accused was maintained but her sentence was reduced from life imprisonment to rigorous imprisonment for five years and six months.

2017 MLD 1576 KARACHI-HIGH-COURT-SINDH

Mst. ROZINA BEGUM VS State

Ss. 6, 9(c) & 21—Possession of narcotics—Appreciation of evidence—Arrest of accused in violation of S. 21, Control of Narcotic Substances Act, 1997—Allegation against accused was that 30-kilograms charas was recovered from her suitcases—Accused contended that officer who arrested was of the rank of Assistant Sub-Inspector in violation of S. 21 of Control of Narcotic Substances Act, 1997—Record showed that Assistant Sub-Inspector arrested the accused and taken the alleged charas into his custody—Provisions of S. 21 were not applicable when an accused was apprehended by the police during their normal duties—Provisions of S. 21 were directory in nature and non-compliance would not make the trial or conviction bad in the eyes of law—Appeal was partly allowed, conviction of accused was maintained but her sentence was reduced from life imprisonment to rigorous imprisonment for five years and six months.

2017 MLD 496 KARACHI-HIGH-COURT-SINDH

RASHEEDA alias RABIA VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic substance—Bail, refusal of—Accused, was alleged to have been arrested while she was in possession of 9950 grams of opium—Entire opium was sent to the Chemical Examiner for examination, who affirmed that recovered narcotic was opium—No enmity was alleged by the accused with the police to show that she had falsely been implicated in the case—Offence of the accused fell under the ambit of prohibitory clause of S.497 Cr.P.C—Bail was refused accordingly.

2017 MLD 496 KARACHI-HIGH-COURT-SINDH

RASHEEDA alias RABIA VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic substance—Bail, refusal of—Police officials as sole recovery witnesses—Competency of—Principles—Accused, was alleged to have been arrested while she was in possession of 9950 grams of opium—Prosecution witnesses were police officials—Associating private witnesses in such cases was not the requirement of law—Police witnesses were as good and competent witnesses as anybody else, unless they were proved to be inimical against the accused—Bail was refused accordingly.

2017 MLD 496 KARACHI-HIGH-COURT-SINDH

RASHEEDA alias RABIA VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic substance—Bail, refusal of—Principle—Deeper appreciation of evidence was not permissible at bail stage—Looking to the peculiar features and nature of the offence Trial Court could depart from the normal standards prescribed in such cases.

2017 MLD 32 KARACHI-HIGH-COURT-SINDH

ANWAR ZAMAN VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(b) & 51—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Case had already been challaned against accused, who was no more required for investigation—Accused was behind the bars for the last more than five months without any substantial progress in trial—Case of the prosecution rested upon the evidence of the Police Officials, their evidence required thorough scrutiny at the time of trial; and there was no apprehension of tampering with the prosecution evidence at the hands of accused—Five hundred grams charas, having allegedly been recovered from possession of accused, accused was liable to be tried under S.9(b) of Control of Narcotic Substances Act, 1997, which did not fall within the prohibition contained in S.51 of the Act—Accused was previous non-convict and it was yet to be determined at the trial whether accused had committed the offence in a manner as alleged by prosecution or otherwise, till then case of accused required further probe—Accused having not been convicted in any case allegedly registered against him, he could not be refused bail mainly on the ground that certain other criminal cases had been registered against him—Accused having made out a case for further inquiry, he was admitted to bail, in circumstances.

2017 YLRN 355 KARACHI-HIGH-COURT-SINDH

ADAL MUHAMMAD VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9—Prohibition of possession of narcotic drugs—Bail, grant of—Further inquiry—Accused was not named in FIR nor any specific role had been assigned to him—No documentary proof and other connecting evidence was collected to prima facie involve accused directly or indirectly in commission of offence—Mere allegation of payment of money to co-accused for release of subject container required serious consideration—Complainant had not made any serious effort to hire any public person nor associated any private person to act as an attesting witness to maintain the transparency of recovery—Challan had already been submitted and accused was not required for investiga-tion—Accused had succeeded to make out a case for grant of post arrest bail on the ground of further inquiry—Bail was granted accordingly.

2017 YLRN 332 KARACHI-HIGH-COURT-SINDH

MUHAMMAD ZUBAIR VS State

Ss. 497 & 103—-Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8 & 9(c)—Possession, import or export, trafficking or finance the trafficking of narcotic drugs etc.—Bail, grant of— Search to be made in presence of witnesses— Requirement— Recovered narcotics/ samples not weighed at place of arrest—Effect—Three kilogram of Charas was alleged to have been recovered from the accused—Accused was allegedly arrested from the place, which was heart of the city and thickly populated commercial area—Complainant had not associated private persons as Mashirs to maintain the alleged recovery—Requirements of S. 103, Cr.P.C. were mandatory to provide safeguard to the innocent persons from foisting false recovery by the police to settle their account of ill-will—Prosecution must have explained the circumstances for non-compliance with the provisions of S. 103, Cr.P.C—FIR showed that neither nine pieces of recovered Charas, nor samples separated from the same, had been weighed at the place of recovery; hence, total weight of the recovered of the nine pieces and weight of the samples required serious consideration—Accused had been behind the bars for two months, but the prosecution had failed to examine even a single witness to substantiate the case against the accused—State counsel raised no objection to the grant of bail—Bail application was allowed accordingly.

2017 YLRN 293 KARACHI-HIGH-COURT-SINDH

PERVEZ alias PEHALWAN VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c) & 51—Possession of narcotic drugs, etc.—Bail, grant of—Further inquiry—Complainant (police official) alleged that he intercepted the accused and secured a plastic shopper from his hand which contained Charas weighing 1040 grams—Complainant neither made any serious effort to associate any public person to act as a mashir nor any plausible explanation had been furnished in that regard—Accused was arrested near a petrol pump which was a thickly populated area, staff members of petrol pump and members of public were available who could easily be associated as witnesses—Accused was behind the bars for more than five months but prosecution had failed to examine a single witness to substantiate the charge against accused—FIR showed that complainant had failed to mention total number of pieces of Charas recovered from possession of accused—Challan had been submitted and accused was not required for investigation—Accused had succeeded to make out a case for grant of bail on ground of further inquiry as envisaged under subsection (2) of S. 497, Cr.P.C.—Bail was granted accordingly.

2017 YLRN 99 KARACHI-HIGH-COURT-SINDH

SIRAJ MUHAMMAD VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic substance—Bail, refusal of—Police officials as sole recovery witnesses, competency of—Principle—Accused was arrested while he was in possession of 1020 grams charas—Prosecution witnesses were police officials—No private witness had been associated at the time of alleged recovery—Such was not the requirement of law in the like cases—Police witnesses were as good and competent witnesses as anybody else, unless they were proved to be inimical against the accused—Bail was refused.

2017 YLRN 99 KARACHI-HIGH-COURT-SINDH

SIRAJ MUHAMMAD VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic substance—Bail, refusal of—Accused was nominated in the FIR with specific role—Allegedly 1020 grams of charas was recovered from the exclusive possession of accused—Accused was arrested at the spot at day time—Accused was previously convicted in the case of similar nature—Bail was therefore, refused in circumstances.

2017 PCrLJN 115 KARACHI-HIGH-COURT-SINDH

RAJAB ALI KERIO VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic drugs—Bail, grant of—Further inquiry—Complainant (police) intercepted accused on main road while riding on motorcycle and recovered charas (narcotic) concealed in a blue shopper—Accused was apprehended from a thickly populated area but complainant neither associated any private mashir nor made any serious efforts to involve any public person to act as mashir to maintain transparency of alleged recovery nor furnished any explanation—Recovered substance was weighed at the spot and total weight was presumed to be 2 kg—No mashirnama of recovery of narcotic substance was prepared at the spot—Court could enlarge the accused on bail in case of recovery of charas when prosecution had failed to conclude the trial within three months—Accused was behind the bars for more than eight months but prosecution had failed to examine even a single witness to substantiate charge though it was not a difficult task to procure attendance of prosecution witnesses who were police officials—Any iota of doubt if arisen even at bail stage would be counted in favour of accused—Accused had succeeded to make out a case for grant of bail on the ground of further inquiry as contemplated under S. 497(2), Cr.P.C.—Bail was granted accordingly.

2017 PCrLJN 113 KARACHI-HIGH-COURT-SINDH

MUHAMMAD ZESHAN VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic drugs—Bail, grant of—Complainant (police) alleged that accused was found in possession of plastic shopping bag containing contraband Charas—Police had failed to associate any independent private witness—Question as to the net weight of recovered narcotics and whether the case fell within the ambit of S. 9(b) or 9(c) of Control of Narcotic Substances Act, 1997 would be determined after recording of evidence—Case of accused was not covered within the prohibitory clause of subsection (1) of S. 497, Cr.P.C. as the punishment provided for the recovered quantity was four years, six months and fine of rupees twenty thousands—Accused was not a previous convict or hardened criminal or habitual offender and was first offender and was in jail since his arrest—No apprehension of tampering with the prosecution evidence existed as all the mushirs were police officials—Bail was granted accordingly.

2017 PCrLJN 84 KARACHI-HIGH-COURT-SINDH

ABDUL KHAIR VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c) & 51—Possession of narcotic substance—Bail, refusal of—Complainant (police) alleged recovery of charas (narcotic) from the tool box of a bus, driver and conductor were booked in the case—Offence fell within prohibitory clause of S. 497, Cr.P.C.—Section 51, Control of Narcotic Substances Act, 1997 prohibited grant of bail to an accused charged of an offence under the Act—No enmity, ill-will or grudge had been alleged against prosecution—Contention that recovery was not witnessed by persons from public was hit by S. 25, Control of Narcotic Substances Act, 1997 under which application of S. 103, Cr.P.C. was excluded—Accused were prima facie connected with the commission of offence consequently not entitled to bail.

2017 PCrLJN 56 KARACHI-HIGH-COURT-SINDH

SHOUKAT KHAN VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic drugs—Bail, grant of—Further inquiry—Accused was arrested from populated area but no private person was associated as attesting witness—Neither samples were separated from alleged recovered narcotic substance on the spot nor mode of weighing of recovered charas (narcotic) had been mentioned in the FIR—Weight of substance was not disclosed—Prosecution had failed to produce a single witness (police officials) within a period of two years—Accused could not be deprived from the enlargement on the basis of other cases, while he deserved grant of bail on merits—Accused was not previous convict and was no more required for further investigation—Accused had succeeded to make out a case of further inquiry—Bail was granted accordingly.

2016 YLR 2173 LAHORE-HIGH-COURT-LAHORE

RAFAQAT ALI VS State

Ss. 9 (c) & 6—-Criminal Procedure Code (V of 1898), S. 103—Possession of narcotic drugs etc.—Appreciation of evidence—Police officials as sole recovery witnesses, competency of—Principles—Accused was alleged to have been arrested while he was in possession of forty kilogram of “Poast”—Trial Court, having convicted accused, sentenced him to undergo life imprisonment along with payment of fine—Recovery witnesses had fully supported the complainant’s version—Prosecution witnesses had been put to lengthy cross-examination, but defence could not shatter their testimony on material points like date, time and place of recovery of contraband material from the accused—Prosecution case was although based on the testimony of police officials only, but no ill-will or animosity had been brought on record during investigation and trial, that could prompt the police witnesses to falsely involve the accused in present case—Police witnesses were as good and competent witnesses as anybody else, unless they were proved to be inimical against the accused—Report of Chemical Examiner was positive, which had corroborated the ocular account furnished by the prosecution witnesses—Prosecution had proved the charge against the accused beyond shadow of reasonable doubt—Appeal was dismissed accordingly.

2016 YLR 1093 LAHORE-HIGH-COURT-LAHORE

KHANI GULL VS State

Ss. 9(c), 6, 7 & 8—-Qanun-e-Shahadat (10 of 1984), Art. 129 (g)—Possession, import and export, trafficking and financing the trafficking of narcotic drugs etc.—Appreciation of evidence—False implication, plea of—Benefit of doubt—Court may presume certain facts—Seventy-five kilogram of Charas was alleged to have been recovered from the car of the accused while he was transporting the same—Trial Court convicted the accused and sentenced him to undergo life imprisonment along with payment of fine—Material prosecution witnesses remained inconsistent with regard to the recovery of the narcotics including colour and shape of the narcotics, preparation of samples of the same, sending of the same to the Chemical Examiner, its safe custody, relevant dates, etc.—Said contradictions in statements of the prosecution witnesses reflected that the prosecution had failed to prove the safe custody of the samples and case property, which had caused dent in the prosecution story and missed the link in the chain of prosecution evidence—Prosecution had also withheld the best available evidence in shape of prosecution witness, who had allegedly handed over the complaint, sample parcels and case property to the other prosecution witness, which led to draw adverse inference in view of Art. 129(g) of Qanun-e-Shahadat, 1984—In view of the defence statement recorded under S.342, Cr.P.C, the prosecution evidence deserved to be rejected—Possibility of false implication of the accused could not be ruled out—Conviction was based on misreading, non-reading and mis-appreciation of available evidence—High Court, extending benefit of doubt, acquitted the accused—Appeal was allowed in circumstances.

2016 PLD 378 KARACHI-HIGH-COURT-SINDH

MOMIN KHAN VS State

497—-Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9 (b)—Possession, import or export, trafficking or financing the trafficking of narcotic drugs etc.—Bail, refusal of—Bail could be declined in case of recovery of 990 grams of Charas—One thousand grams of Charas from one accused and one hundred grams of Charas along with ten grams of heroin were alleged to have been recovered from the other accused—Narcotics although had been recovered from the accused persons only in presence of Mashirs/police witnesses, but no enmity had been shown by the accused with the Anti-Narcotics Force for their false implication—Accused were narcotic traffickers and had been apprehended from the street while being in possession of the narcotics—Offence in question, being heinous in nature, considered as offence against the society at large; therefore, even if the offence did not fall within the prohibitory clause of S. 497, Cr.P.C, the accused were not entitled to the grant of bail—Bail could be declined even in case where the recovered Charas was 990 grams—Bail application was dismissed accordingly.

2016 PCrLJ 1075 KARACHI-HIGH-COURT-SINDH

MUHAMMAD AKRAM VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Prohibition of possession of narcotic drugs—Bail, grant of—Borderline case under Ss. 9(b) or 9(c) of Control of Narcotic Substances Act, 1997—Further inquiry—Private witnesses of recovery and arrest not associated—Fifteen kilograms of Charas was alleged to have been recovered from possession of the accused—Where recovery of narcotic substance did not exceed the limit between 900 to 1500 grams, the case being borderline between S. 9(b) & 9(c) of Control of Narcotic Substances Act, 1997 the accused was to be admitted to bail—No private witness had been associated and no private person had signed the Mashirnama of arrest and recovery—Accused was not previously involved in case of similar nature—Prosecution witnesses, being official witnesses, no likelihood to tamper with the prosecution case existed if the accused was released on bail—Challan had already been submitted and the accused was no more required for further investigation—Prosecution had not examined even a single witness for one year after submission of the Challan—Case of accused was also one of further inquiry—Bail application was allowed accordingly.

2016 PCrLJ 975 KARACHI-HIGH-COURT-SINDH

Syed HYDER ALI SHAH VS State

Ss. 497 & 103—Control of Narcotic Substances (XXV of 1997), Ss. 6, 7, 8 & 9—Bail, grant of—Possession, import and export trafficking or financing trafficking of narcotic drugs—Search to be made in presence of witnesses—Bail, grant of—Independent mashir/witnesses, absence of— Further enquiry—Consistency, rule of—Applicability—Recovery, mode of—Two recovered envelopes of heroin were not weighed separately—Effect—Duty of Chemical Examiner—Benefit of doubt at bail stage—Scope—Enmity, existence of—Complainant had prior information about the accused having narcotic substances in their possession for sale, but he had neither associated any independent mashir/witness nor made any serious efforts to get any public person to act as mashir—Private persons should have been given preference if they were available at the spot, rather than personnel, to maintain transparency of the recovery—Heroin powder was recovered from two envelopes, but the same was not weighed on the spot, and the complainant had assessed its total weight to be 1300 grams tentatively—Chemical Examiner had also not weighed both envelopes separately mentioning their net weight, but he had mentioned total weight of heroin powder lying in two envelopes as 1300 grams—Chemical Examiner was duty bound to mention net weight of heroin powder lying in the two envelopes separately after deducting weight of both envelops—Net weight of the heroin powder might become more or less 1000 grams after deducting weight of both envelopes—Co-accused had already filed harassment petition against the complainant, under which court had directed the complainant not to cause any kind of harassment to the accused—Prosecution could not satisfy as to why the complainant had registered second FIR against present accused for the same narcotic, which had reflected the personal grudge of the complainant—Co-accused had already granted bail—No criminal case was already registered against the accused—Accused was regular university student and a character certificate had also been issued in his favour—Challan had already been submitted and the accused was no more required—No apprehension of tampering with prosecution evidence existed, as prosecution witnesses were police officials—Bail application was accepted accordingly.

2016 PCrLJ 508 KARACHI-HIGH-COURT-SINDH

MUHAMMAD YOUSAF VS State

Ss. 9(c), 6, 7 & 8—Possession, import or export, trafficking or financing trafficking of narcotic drugs etc.—Appreciation of evidence—False implication/enmity, plea of—Two contradictory versions were advanced in defence plea—Twelve hundred kilograms of Charas was alleged to have been recovered from accused, while he was transporting the same through a trailer—Trial court convicted the accused and sentenced him to undergo imprisonment for life along with payment of fine—Complainant and Mashirs/recovery witnesses had corroborated their evidence with each other as well as to the recovery— Accused had not shattered the said corroborative evidence—Chemical Examiner had certified the sample of the recovered Charas—Accused, while taking the plea of false implication, had advanced two (contradictory) versions in his defence, which were not supported by any documentary proof—Accused could not establish that the complainant, who belonged to other Province, had any enmity or motive to falsely implicate him—No reason existed to disbelieve the recovery of huge quantity of Charas—Prosecution had brought reliable, trustworthy and unimpeachable evidence without any discrepancy or cloud over the veracity of the prosecution story—Prosecution, thus, had proved the case beyond any shadow of doubt—Appeal against conviction was dismissed accordingly.

2016 PCrLJ 265 KARACHI-HIGH-COURT-SINDH

FAROOQ KHAN VS State

Ss. 6, 9(c) & 25—Qanun-e-Shahadat (10 of 1984), Art. 40—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—All three prosecution witnesses, who were Police Officials, had fully supported the prosecution case—Said witnesses, had been cross-examined at considerable length, but no discrepancy causing reasonable doubt in the veracity of prosecution case was found—Evidence of prosecution witnesses, over the recovery of narcotic substance from the house in question had not been shattered to such extent that conviction and sentence awarded to accused, could be declared illegal and set aside—Minor variations, though did occur in the evidence of witnesses, but no contradictions worth giving benefit of reasonable doubt to accused existed—Plea of false implication of accused at the instance of DSP, against whom accused had moved application for registration of FIRs, could not be given much weight, as said DSP was neither the witness, nor had conducted any investigation in the case—Said DSP had not played any part to contrive things against accused—Nothing concrete to suggest false implication of accused at the hands of said DSP, was found on record—SHO concerned had submitted criminal record of showing as many as 20 criminal cases of different kinds registered at various Police Stations against accused and his brothers—Objection of accused over the territorial jurisdiction of Police Station to register the case against accused, was also without any merits—Accused was aware of the nature, and exact time and date of incident reported against him—Stringent compliance of S.103, Cr.P.C., had been dispensed with in terms of S.25 of Control of Narcotic Substances Act, 1997—People fearing for their life, did not come forward to give evidence against drug barons—Information disclosed by accused led to discovery of narcotic substance, was relevant as per scheme of Art.40 of Qanun-e-Shahadat, 1984 and could be relied upon—Prosecution case was about recovery of 7 packets of charas, each having rods and each weighing 1250 grams—Out of those 7 packets, one packet individually consisting 100 rods, was separated, sealed and subsequently sent for examination to Chemical Expert, the report of which had come in positive—Regarding 6 remaining packets, the prosecution could not bring any evidence to establish the same to be narcotic substance punishable under Control of Narcotic Substances Act, 1997—Prosecution was bound to take sample from every packet for examination to prove it to be narcotic substance—Accused, was liable for possessing 1250 grams of charas and 1000 grams of heroin—Conviction and sentence for possessing charas exceeding 1 Kilogram and upto 2 Kilograms was R.I. for 4 years, 6 months, and fine of Rs.20,000 in default S.I. for 6 months, and for possessing heroin exceeding 600 grams and upto 1000 grams, the sentence of R.I. for one year, 10 months and fine of Rs. 150,000 in default S.I. for 5 months—Same punishment for accused, would meet the ends of justice—Accused had served sentence of 6 years, 11 months and 14 days, and had earned remission of 2 years, 1 month and 19 days—Conviction and sentence of 10 years and fine of Rs.500,000 awarded to accused, was modified to the period already undergone by him, in circumstances.

2016 MLD 1054 KARACHI-HIGH-COURT-SINDH

BILAWAL VS State

Ss. 497 & 103—-Control of Narcotic Substances Act (XXV of 1997), Ss. 9 & 6—Prohibition of narcotic drugs, etc.—Search to be made in presence of witnesses—Bail, grant of—Delay, and contradictions in prosecution version, regarding sending of recovered substance/Charas to Chemical Examiner—Further enquiry—Twenty-five hundred grams of Charas was alleged to have been recovered from accused—Accused was alleged to have been apprehended during day time from a place, which was busy road, but no private person had been associated to act as mashir/witness—Private persons should have been given preference if they were available at the spot, rather than official personnel, to maintain transparency of the recovery—High Court observed that the requirements of S. 103, Cr.P.C. were mandatory regarding the recovery in presence of two members of public—No explanation had been advanced for sending the recovered substance with delay of sixteen days; whereas, chemical laboratory, was about fifty kilometers away from the police station—Recovered substance had been sent to the chemical examiner more than once without any explanation—Accused was no more required to the police—Accused had been behind bars since date of his arrest, but prosecution had failed to examine even a single witness for period of seven months—No one could be detained for an indefinite period—No apprehension of tampering with prosecution evidence existed, as all prosecution witnesses were police officials—Accused had made out a case for further enquiry—Bail application was accepted accordingly.

2016 MLD 291 KARACHI-HIGH-COURT-SINDH

BASHIR AHMED DETHO VS State

S.6—“Possession” of narcotic—Scope—Accused fled away by dropping charas and his bicycle containing charas—Held, that even if it was admitted that police found charas at the place mentioned in the charge, there was no sufficient evidence available that accused was the same person who left charas at the time and place mentioned in the charge—Recovery, in circumstances, was not made from the exclusive possession of accused.

2015 PCrLJ 1767 QUETTA-HIGH-COURT-BALOCHISTAN

GHULAM SARWAR VS State

Ss. 9(c) 8, 7, 6 & 48—-Customs Act (IV of 1969), S. 171—Appeal against conviction—Possession of narcotics drugs, import and export of narcotics drugs, trafficking or financing trafficking of narcotics drugs, etc.—Appreciation of evidence—Benefit of doubt—When seizure or arrest is made, reason in writing to be given—Seizure memo of recovered contrabands not prepared at spot—Effect—Non-sealing of samples of contrabands at spot—Effect—Chemical Examiner’s report– Evidentiary value—Ownership of vehicle used in transportation of contraband—Requirement of proof—Charas and opium were alleged to have been recovered from accused—Trial court convicted accused under S.9(c) of Control of Narcotic Substances Act, 1997 and sentenced him to undergo imprisonment and pay fine—Accused took plea that he had no knowledge of contrabands concealed in body of vehicle—Witnesses had made dishonest improvements in their dispositions and same were contradictory—Fard-e-bayan or notice of seizure issued under S.171 of Customs Act, 1969 had been typed, whereas prosecution witness stated that he had written the same by hand at the spot, which indicated that case property was not seized at the spot—Prosecution witness had admitted that samples of recovered contrabands had not been prepared at the spot—Neither seizure memo nor samples had been prepared at spot, which was illegal, and for which no explanation was given by complainant—Non-sealing of samples of recovered contrabands soon after its recovery had created serious doubt in prosecution case—No reliance could be placed on Chemical Examiner’s report, which, in given circumstances, had lost its evidentiary value—Prosecution had failed to prove ownership of vehicle used in transportation of recovered contrabands, as no registration documents regarding said vehicle had been produced—Nothing was available on record to show whether said vehicle belonged to accused or he was driving the same—Prosecution had failed to connect accused neither with vehicle nor with recovered contrabands— Recovery of recovered contrabands was not effected on pointation of accused—Prosecution failed to prove conscious possession or knowledge of recovered contrabands—Trial court could not properly appreciate defence plea—Entire case of prosecution was defective, doubtful and full of contradictions—Impugned judgment suffered from wrong appreciation, non-reading and misreading of evidence—High Court, extending benefit of doubt, acquitted accused—Appeal was allowed in circumstances.

2015 MLD 507 PESHAWAR-HIGH-COURT

AHMAD GUL VS State

S.6—Word “possess”—Connotation—Word “possess” connotes some type of knowledge about the thing possessed by a person and it is the duty of prosecution to prove that accused was knowingly in control of narcotic substance.

2015 PCrLJ 1212 KARACHI-HIGH-COURT-SINDH

MUHAMMAD YOUSAF KHARL VS PROVINCE OF SINDH through Chief Secretary Sindh

Ss. 6 & 9(c)—Criminal Procedure Code (V of 1898), S.156—Constitution of Pakistan, Art.199—Constitutional petition—Possessing and trafficking of narcotics—Quashing of proceedings—Re-investigation of FIR—Petitioners had prayed for quashing of proceedings in the case, and alternatively, they prayed for further/re-investigation of FIR—Validity—‘Alternative’ prayer should always be within four corners of main relief, because relief was always sought with reference to pleadings (narration of facts)—“Alternative” prayer/relief, in the present case, did not appear to be within four corners of main prayer/relief—Petition for quashment i.e. main prayer, had already met the fate of dismissal—Petitioner had insisted for re-investigation of the case on the basis of cell data record of Investigating Officer (witness) and urged that on the day of offence said witness (Investigating Officer) was not present at the place of incident—Petitioner claimed that they were earning million of rupees in a month having established business, therefore they could not be carrier of narcotics—First Information Report involving 300 kgs. narcotics could not be quashed, because absence of Investigating Officer and not his phone would matter—Possession of narcotics, if established, would be sufficient to prove the charge—Details of story, being believable or otherwise, was not a sufficient ground to claim re-investigation, which could not be insisted, unless prima facie it was established that Investigating Officer was motivated; and had conducted investigation, which was result of colourful exercise, mala fide and excess of jurisdiction—All the grounds, taken by the petitioners, were of such a nature that the same would fall within the meaning of ‘defence’—Accused persons, would have fair opportunity to agitate such grounds including production of relevant Cell Phone data, if any—Investigation, was the domain of the Investigating Agency, which could not be legally directed to investigate a particular line—Petitioners having filed petition before High Court on similar issue that was dismissed with cost, High Court could not sit over the order already passed, when such order was not assailed before the apex court—Petitioners had failed in establishing any exceptional circumstance, where direction for re-investigation could be ordered under Constitutional Jurisdiction, which normally was not within scope of Art.199 of the Constitution—Constitutional Jurisdiction could come into play, for help of justice, but not to shoulder wishes of one for getting a legal thing at his sketched lines—Petitioners would have ample opportunity to agitate their pleas before the competent Trial Court—Petition being not maintainable, was dismissed, in circumstances.

2015 PCrLJ 1133 KARACHI-HIGH-COURT-SINDH

ABDULLAH BHUTTO VS State

Ss. 6, 7, 8, 9(c), 14, 15 & 29—Penal Code (XLV of 1860), Ss.380, 381, 406, 408 & 409—Criminal Procedure Code (V of 1898), S.403—Qanun-e-Shahadat (10 of 1984), Art.19—Constitution of Pakistan, Art.13(a)—Possessing and trafficking of narcotics—Theft in dwelling house, theft by clerk or servant, criminal breach of trust, criminal breach of trust by clerk or servant, public servant—Double jeopardy—Appreciation of evidence—Case against accused was bifurcated in three parts, on direction of Trial Court, and challan was submitted in three counts respectively—Case under Ss.380 & 381, P.P.C. was challaned and submitted in the court of Judicial Magistrate at place ‘S’, while offence under Ss.406, 408 & 409, P.P.C. in court of Special Judge Anti-Corruption at place ‘L’ and for offence under Ss.9(c), 14 & 15 of Control of Narcotic Substances Act, 1997 in the court of Special Judge (Control of Narcotic Substances) at place ‘S’—Accused, had been finally acquitted in first two challan cases regarding theft and misappropriation of charas lying in the Record Room of a court—Section 9(c) of Control of Narcotic Substances Act, 1997, which was punitive clause, would come into play only when contravention of Ss.6, 7 & 8 of the Act, was made by accused—Person who was found in possession of narcotic, or was indulged in import and export of narcotic, or was found involved in trafficking of narcotic, could be convicted and sentenced under S.9(c) of Control of Narcotic Substances Act, 1997—Present case of the prosecution was not that accused was found importing or exporting the contraband narcotics in any manner—Contraband charas, was allegedly kept in “Malkhana” of which accused being Police Official was incharge of charas in question, which was allegedly misappropriated for monetary gains—Accused had been acquitted of the charges of misappropriation and theft by both the Trial Courts respectively—Prosecution having failed to prove the primary charges of the theft and misappropriation case of prosecution could not succeed on the same set of evidence in view of Art. 19 of the Qanun-e-Shahadat, 1984, merely for the reason of the act of possessing and trafficking the contraband charas—Accused having already been acquitted by two different courts of the charges of theft and misappropriation in the same crime, therefore, rule that no one would be vexed twice for the same offence, was fully applicable in the present scenario of the case—Conviction and sentence awarded to accused by the Trial Court, were set aside, and accused was acquitted of the charge and his bail bond stood cancelled and surety was discharged, in circumstances.

2015 PCrLJ 1053 KARACHI-HIGH-COURT-SINDH

MUDASSIR IQBAL VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 25—Possessing and trafficking of narcotics—Bail, refusal of—No animosity was alleged against complainant/Police Official to foist the alleged narcotics material upon accused—Application of S.103, Cr.P.C. in the narcotic cases, having been excluded by virtue of provisions of S.25 of Control of Narcotic Substances Act, 1997, non-inclusion of any private witness was not serious defect to make the ground of bail—Mens rea of accused was to be gathered from deep appreciation of evidence, which was not permitted at bail stage—Case of accused did not fall within the prohibited clause of S.497, Cr.P.C. in circumstances—On five occasions, case was adjourned, either on the request of accused side or due to absence of defence counsel, delay in trial of case, in circumstances was also attributed to accused, which disentitled him to bail, even on the ground of alleged delay in trial—Bail application of accused, being devoid of merits, was dismissed, in circumstances.

2015 PCrLJ 300 KARACHI-HIGH-COURT-SINDH

Syed RIAZ HUSSAIN SHAH VS State

Ss.6, 9(c), 25 & 29—Criminal Procedure Code (V of 1898), S.103—Possessing and trafficking narcotics—Appreciation of evidence—Applicability of S.103, Cr.P.C.— Scope— Both the prosecution witnesses had deposed in detail about the day of the incident, and their evidence was consistent with each other—Both witnesses were subjected to lengthy and exhaustive cross-examination, but defence was unable to shatter their evidence, which otherwise was confidence inspiring—Said witness deposed that accused persons were available at their homes; and a huge quantity of narcotics was recovered—Prosecution had discharged its onus as per S.29 of the Act and had successfully established the recovery of the contraband, the source of information, and was consistent about the departure from Police Station and arrival at the spot—Evidence against accused persons did not suffer from any contradiction—Accused persons had been unable to disprove the allegations levelled against them—Application of S.103, Cr.P.C. had been excluded under S.25 of Control of Narcotic Substances Act, 1997—Technicalities of procedural nature, were to be ignored as special law would prevail over the general law—Prosecution witnesses having fully implicated accused persons, there was no reason for false involvement and Trial Court was left with no option, but to pass conviction to accused persons—In absence of any illegality, impropriety, misreading or non-reading of evidence, conviction and sentence awarded to accused persons, was just and proper and same were maintained.

2015 PLD 250 KARACHI-HIGH-COURT-SINDH

HASSAN VS State

403—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4—Possessing, trafficking of narcotics, and owning or possessing intoxicant—Principle of double jeopardy, applicability of—Police lodged F.I.R. against the petitioners/accused persons under Ss.6, 9 of Control of Narcotic Substances Act, 1997—Police after completion of investigation, submitted three challans; one for offence pertaining to 8 Kgs Bhang under Ss.6, 9(a) of Control of Narcotic Substances Act, 1997 in the court of one Judicial Magistrate while second challan for offence pertaining to 900 bottles of Desi Liquor under Arts.3, 4 of Prohibition (Enforcement of Hadd) Order, 1979 was submitted before the court of a different Magistrate—Third challan pertaining to 53 Kgs charas, 20 Kgs heroin powder and 49 Kgs chemical powder was submitted before the Special Court, Control of Narcotic Substance—Accused who were acquitted by both the courts of Judicial Magistrates on merits, had claimed that their trial before the Special Court, was not competent—Contention of accused persons was, that since facts and witnesses were the same there could be no subsequent trial, particularly when they stood acquitted by two different courts on same set of facts and witnesses—Validity—Accused could not claim benefit of S.403, Cr.P.C. only by establishing or pleading that their subsequent trial was on same set of facts/acts, and same set of witnesses, but what mattered was trial for the same offence—Accused had never questioned/ challenged separate submissions of challans, rather effers were made to have the cases of lesser punishment concluded earlier—Accused continued with their trial for different offences, before Magisterial Courts; without any plea of prejudice, but ever since on acquittal from such offences, they dressed up with a plea that their trial for a heinous offence, on same facts, amounted to vexing them twice—Acquittal, or conviction, arising out of same facts, for an offence of lesser punishment, would not bring S.403, Cr.P.C. into operation, on two folds i.e.; punishment was one of the criteria, which would make difference in offences; and such difference would also decide competence of a court to try the offence—In the present case, pending trial was not only for the offence of different nature from that already faced by accused persons, but also the case property was different for which accused had never faced trial—Pending trial of accused persons for an offence under S.9(c) of Control of Narcotic Substances Act, 1997, was not illegal, despite their acquittal for offences under S.9(a) of said Act, and Art.4 of Prohibition (Enforcement of Hadd) Order, 1979, nor such acquittal would cause any influence upon the merits of trial of accused persons for such offence—Petition being devoid of merits, was dismissed, in circumstances.

2014 PCrLJ 1423 LAHORE-HIGH-COURT-LAHORE

FAYYAZ AHMED VS State

Ss. 6 & 9(c)—Possessing and trafficking of narcotics—Appreciation of evidence—Both complainant/Investigating Officer and other prosecution witness, had admitted that accused was just a carrier of donkey cart—Star witness of the prosecution, lent support to the defence version that accused was not having any knowledge, whether the luggage being carried by him in lieu of wages of Rs.300 was narcotics substance or something else—Trial Court despite holding that accused seemed to be a poor man and a cart driver, convicted and sentenced him—Case of accused was clearly that of acquittal, Trial Court ought not to have recorded conviction against him—Facts of the present case did not satisfy the provisions of S.6 of the Control of Narcotic Substances Act, 1997—Trial Court, in circumstances, was not justified while recording conviction of accused under S.9(c) of Control of Narcotic Substances Act, 1997—Judgment of the Trial Court was set aside, accused was acquitted of the charge and was ordered to be released, in circumstances.

2014 YLR 632 KARACHI-HIGH-COURT-SINDH

JANIB ALI ZARDARI VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 21—Control of Narcotic Substances Government Analysts Rules, 2001, R.4(2)—Possessing and trafficking narcotics—Bail, grant of—Further inquiry—F.I.R. was registered on the direction of the high-ups of the Police, but no competent officer, as provided under S.21 of Control of Narcotic Substances Act, 1997, was sent/deputed at the time of raid—Samples of charas were not taken and dispatched to the Laboratory for opinion within 72 hours, but were sent after about seven days of alleged recovery; and no explanation was given by the Police for such delay which was a violation of R.4(2) of Control of Narcotic Substances Government Analysts Rules, 2001—Memo of arrest and recovery was prepared in presence of two witnesses, who both were Police Officials—Names of said recovery witnesses had not been mentioned in the statement recorded under S.154, Cr.P.C. and in the F.I.R. which was lapse on the part of the prosecution creating reasonable doubt about recovery; and authenticity of Mashirnama of recovery had become fishy and made the case of prosecution of further inquiry—No reasons existed for keeping accused behind the bars, when sufficient illegalities and irregularities had appeared in the case of prosecution, which had created doubt in the prosecution story; benefit of which would go to accused—Accused, in circumstances, was entitled for grant of bail.

2014 MLD 1323 KARACHI-HIGH-COURT-SINDH

AMIR MEHMOOD VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Possession of narcotic—Bail, grant of—Further inquiry—Arrest from public place—Non-association of private witnesses—Doubt regarding actual date of arrest—Mushirnama silent as to the manner of weighing narcotic and the scale used—Effect—Case required further inquiry in terms of S. 497(2), Cr. P. C—Accused was granted bail accordingly.

2013 YLR 2407 QUETTA-HIGH-COURT-BALOCHISTAN

MOULA BAKHSH VS State

Ss.6 & 9 (c)—Possession of narcotics—Appreciation of evidence—Knowledge of presence of narcotics—Hashish was recovered from secret cavities of tanker driven by accused and co-accused was sitting on front seat—Both the accused were convicted by Trial Court and sentenced to imprisonment—Validity—Tanker was in the control of driver, therefore, there was no possibility that he had no knowledge about recovered article concealed in secret cavities—Tanker was on its way and it could safely be held that narcotic was concealed by driver for the purpose of its transportation or delivery—Prosecution was supposed to show that co-accused was either owner, cleaner or helper of tanker or he knew about secret cavities or concealment of contraband material therein and prosecution had to prove that co-accused had hands in the affairs—Tanker was not in the control of co-accused nor he was owner or cleaner, therefore, prosecution failed to prove his knowledge about establishment of cavities or concealment of narcotics in it—Record did not prove that co-accused was in any way involved in transportation of recovered material nor prosecution had established nexus of co-accused either with accused driver, with tanker or with recovered material, therefore, prosecution failed to bring the case of co-accused within the parameters of S. 6 Control of Narcotic Substances Act, 1997—Case of co-accused was distinguishable from the case of accused driver beyond shadow of doubt, therefore, High Court maintained conviction and sentence to the extent of accused driver while co-accused was acquitted of the change—Appeal was disposed of accordingly.

2013 YLR 2407 QUETTA-HIGH-COURT-BALOCHISTAN

MOULA BAKHSH VS State

Ss.6 & 29—Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120—Possession of narcotics—Onus to prove—Though Control of Narcotic Substances Act, 1997, is a special law wherein burden to prove innocence is always upon accused but the same does not absolve prosecution from its primary duty of proving a case beyond any reasonable doubt—Prosecution must prove violation of law by one or more than one persons.

2013 YLR 1617 PESHAWAR-HIGH-COURT

MUHAMMAD SADIQ VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9(c)—Possession and trafficking of narcotic—Bail, refusal of—Accused driving the vehicle alone—Control and possession over recovered narcotic—Scope—Mixing the recovered narcotic before sending samples— Scope— Accused was apprehended at a police barricade and upon search of his vehicle, 14 packets containing a total of 14 kilograms charas were allegedly recovered from the secret cavities of the vehicle—Contentions of accused were that packets of alleged narcotic were initially mixed together and then three samples weighing 10 grams each were sent for chemical analysis, therefore, samples sent did not represent the whole recovered consignment; that narcotic was not recovered from his personal possession but from secret cavities of the vehicle, hence he had no conscious knowledge about it, and that trial had commenced and he was no more required for further investigation—Validity—Accused was driving the car alone and was in charge of it, therefore, same was under his control and possession—Articles lying in the vehicle , in such circumstances, would also be under his control and possession—Some quantity of narcotic was separated from each of the 14 packets and then mixed up, wherefrom three samples of 10 grams each were prepared and only sample of 10 grams was sent for chemical analysis, which denoted that sample sent for analysis represented the whole lot of 14 packets—Challan was complete and trial had commenced—Bail petition of accused was dismissed, in circumstances.

2013 PCrLJ 843 PESHAWAR-HIGH-COURT

INZAR VS State

Ss. 6 & 29—Possession of narcotics—Presumption for possession of illicit articles—In case of possession of narcotics drugs, the prosecution had to establish the fact that the narcotics were secured from the possession of accused—Court was required to presume that accused was guilty, unless he proved that he was not in possession of such narcotics—Prosecution was to establish that accused had some direct relationship with the narcotic drugs, or had otherwise dealt with the same—If the prosecution proved the concealment of the articles or physical custody of it, then the burden of proving that accused was not knowingly in possession of the articles was upon him—Knowledge was the essential ingredient of the offence.

2013 YLR 2560 KARACHI-HIGH-COURT-SINDH

AYAZ PATHAN VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 14, 15, 25 & 29—Possessing, trafficking of narcotics, and aiding, abetting and associating in narcotic offences—Bail, refusal of—Prosecution witnesses, had no enmity whatsoever, with accused to foist such a huge quantity of nine Kilograms of charas upon him—Chemical Examiner’s report regarding recovered charas was found positive—Substance recovered from accused, was proved to be charas—Prosecution, in circumstances, had discharged its initial onus while proving that the substance recovered from accused was contraband charas—Sufficient material was available on record, which had shown that accused was found sitting on front seat of the vehicle, and he was found responsible for transportation of narcotics—Defence plea that the narcotic was not recovered from possession of accused, was not true—Alleged offence was heinous one falling within prohibited clause of S.497, Cr.P.C.—Contention that respectable inhabitants of the locality, were not associated as witness or mashir, was not attracted in view of S.25 of the Control of Narcotic Substances Act, 1997—Applicability of S.103, Cr.P.C., had been excluded in the cases of recovery of narcotics—Evidence of Police Officials, was as good as of any other public witness, in absence of any malice or mala fide—Defence plea raised by accused, required deeper appreciation of evidence, which was not admissible at bail stage—Under provisions of S.29 of Control of Narcotic Substances Act, 1997 presumption would be that a person who was found in possession of narcotics, had committed offence, unless otherwise proved—Reasonable grounds, prima facie, did exist to believe the involvement of accused in the offence alleged against him—Bail application having no merits for consideration, was dismissed, in circumstances.

2013 PCrLJ 1642 KARACHI-HIGH-COURT-SINDH

MUHAMMAD YOUSIF VS State

6—Possession and control over narcotic—Scope—Narcotic recovered from secret cavity of vehicle on a long journey—Presumption—Person in charge of a vehicle on a long journey, would draw the presumption against him that (any) narcotic substance available in secret cavities of such a vehicle was in his knowledge.

2013 PCrLJ 1642 KARACHI-HIGH-COURT-SINDH

MUHAMMAD YOUSIF VS State

Ss. 6 & 9(c)—Possession of narcotic—Appreciation of evidence—Possession and control over narcotic—Scope—Vehicle being driven by accused was stopped at a check-post and 40 bundles of charas weighing 40 kilograms were recovered from the secret cavities of the vehicle—Trial Court convicted and sentenced the accused under S.9(c) of Control of Narcotic Substances Act, 1997—Validity—When accused was driving the vehicle, he was incharge of the same, therefore narcotic would be under his control and possession, especially when he had started a long journey alone in the vehicle from which recovery was effected—Person in charge of a vehicle on a long journey, would draw the presumption against him that narcotic substance available in secret cavities of such a vehicle was in his knowledge—None of the prosecution witnesses had any enmity with the accused nor was it ever suggested that there was any reason to falsely implicate the accused by foisting a huge quantity of narcotic upon him—Evidence of prosecution witnesses remained consistent on all material particulars despite lengthy cross-examination—According to report of Chemical Examiner 40 packets, each containing 9 black rods wrapped in plastic pane were sent to the Laboratory for examination on the same day of the incident and also reached the Laboratory on the same day—Appeal was dismissed in circumstances.

2013 PCrLJ 735 KARACHI-HIGH-COURT-SINDH

NABI GUL VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 8 & 9(c)—Juvenile Justice System Ordinance (XXII of 2000), S. 7—Possession and trafficking of narcotic—Bail, refusal of—Plea of juvenility, rejection of—Supervision and control over vehicle carrying narcotic—Scope—Heroin weighing 75 kilograms was allegedly found from the secret cavities of a truck in which the accused was present as a second driver—Contentions of accused were that alleged heroin was not recovered from his exclusive possession but same was recovered from the truck; that no driving licence had been secured from him by the police; that at the time of incident he was aged about 17 years and as such his case fell within the ambit of Juvenile Justice System Ordinance 2000; that although the Medical Board had opined that accused was 20 years of age but doctors of the Board had given contradictory versions in their cross-examination—Validity—Accused, who was apprehended at the spot, was one of the drivers of the truck in question and truck was under his supervision and control—No documentary proof existed regarding enmity of accused with the complainant party so as to involve him in the matter falsely—Offence alleged was punishable with death and fell within the ambit of prohibitory clause of S.497(1), Cr.P.C.—Medical Board had declared age of accused to be 20 years—Bail application of accused was dismissed, in circumstances.

2013 MLD 1876 KARACHI-HIGH-COURT-SINDH

MUHAMMAD ALTAF VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9(c), 15 & 16—Possession of narcotics, operating premises or machinery for manufacture of narcotic drugs, etc., aiding, abetment or association in narcotic offences—Bail, refusal of—Recovery of contraband and chemicals used for making the same corroborated by people of the locality—Effect—Accused was arrested from a flat on basis of information of an informant and 1100 grams of heroin was recovered from his possession—Chemical drums and cans used in manufacturing heroin were also allegedly recovered from the flat—All the persons of the locality in their statements before the investigating officer supported the recovery of chemical and other articles—Person who had rented out the flat to the accused also corroborated version of the prosecution—Entire quantity of contraband recovered from the accused was sent to chemical examiner, who opined the same to be heroin powder—Recovery of heroin powder and chemicals used for manufacturing the same was supported by habitants of the building, which was sufficient evidence to connect the accused in the case—Bail application of accused dismissed in circumstances.

2012 SCMR 870 SUPREME-COURT

REGIONAL DIRECTOR, ANTI-NARCOTICS FORCE VS RIZWAN AHMED KHAN

Ss. 6, 9(c), 14 & 15—Constitution of Pakistan, Art. 185(3)—Possession of narcotic, aiding, abetment or association in narcotic offences—Allegations were that Ministry of Health had favoured two companies by extending/granting to them quotas of Ephedrine against the Rules and inquiry into such allegation was being obstructed and hampered—Supreme Court observed that commission of the crime, as disclosed in the F.I.R., was of a serious nature, notwithstanding whosoever was involved and what was his status, and concerned authorities should have allowed a transparent inquiry and investigation instead of causing obstructions and hampering the same for one reason or the other—Supreme Court directed that transfer/posting of Director-General, Regional Director and Deputy Director of Anti-Narcotics Force, in colourable exercise of powers, was not free from extraneous consideration, therefore, Regional Director and Deputy Director of Anti-Narcotics Force were not to relinquish the charge and they should continue with the investigation of the case without being influenced in any manner from any one—Order accordingly.

2012 PCrLJ 109 QUETTA-HIGH-COURT-BALOCHISTAN

JANGI KHAN VS State

Art. 40—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Recovery of narcotic on information of accused—Such disclosure of information followed by recovery could be used against accused persons within the meaning of Art. 40, Qanun-e-Shahadat 1984.

2012 PCrLJ 109 QUETTA-HIGH-COURT-BALOCHISTAN

JANGI KHAN VS State

Ss. 6 & 9(c)—Qanun-e-Shahadat (10 of 1984), Art. 40—Possessing and smuggling of narcotics—Appreciation of evidence—Both accused persons, who respectively were driver and conductor of the bus wherefrom narcotic was recovered, disclosed information regarding secret cavities of the bus where the same was concealed—Such disclosure followed by the recovery, could be used against accused persons within the meaning of Art. 40, Qanun-e-Shahadat, 1984—Prosecution had successfully proved the recovery of contraband items from the bus in question—Accused had not entered into witness box to record their statements under S. 340(2), Cr.P.C. nor they had produced any defence witness—Accused in statements under S. 342, Cr.P.C. did not dispute said recovery, except lack of knowledge on their part—Since accused were driver and conductor of the bus, they were under legal obligation to have satisfied the conscious of the court by creating reasonable circumstances justifying that both of them were in fact not aware of concealment of contraband items as they figured only when the bus was ready for departure—Accused had failed to attract any circumstances to create a doubt in the case of the prosecution qua their involvement—If the conscious of the court was satisfied regarding involvement of accused, then the technicalities were to be avoided—Accused were not the owners of the bus in question, but the liability within the ambit of S.6 of Control of Narcotic Substances Act, 1997, would extend to a person who was in possession of contraband items—Case of accused persons fell within the four corners of S.6 of Control of Narcotic Substances Act, 1997—Recovery from the secret cavities of the bus was effected at the pointation of both accused persons—No evidence was offered on the part of accused persons to indicate that they had no nexus with the bus—Accused did not even bother to enter in the witness box to confirm or substantiate their version that they had no nexus and concern with the bus—In view of overwhelming evidence of prosecution, it was not only difficult, but impossible to believe that accused had no knowledge of contraband items—Non-production of bus before the court was not fatal to the prosecution case as accused had admitted their presence in the bus as well as recovery of contraband from the bus—Case against accused persons, in circumstances, had fully proved and they were rightly convicted and sentenced, in circumstances.

2012 PCrLJ 313 PESHAWAR-HIGH-COURT

WAHEEDULLAH VS State

Ss. 6 & 29—Presumption of possession of illicit articles—Section 29 of Control of Narcotic Substances Act, 1997 cast duty upon the court to presume in a trial under the Act that accused had committed the offence under that Act, unless contrary was proved—If the case was of possession of narcotic drugs then prosecution had to first establish the fact that the narcotic drugs were secured from the possession of accused, and the court was required to presume that accused was guilty, unless accused proved that he was not in possession of such drugs—Prosecution was supposed to establish that accused had some direct relationship with narcotic drugs or had otherwise dealt with it and if retention of the article or physical custody of it was proved then the burden of proving that accused was not knowingly in possession of the article was upon him—Practical difficulty of the prosecution to prove something within the exclusive knowledge of accused, must have made the legislature think that if the onus was placed on the prosecution, the object of Control of Narcotic Substances Act, 1997 would be frustrated—Knowledge was an essential ingredient of the offence as the word “possession” connoted in the context of S.6 of Control of Narcotic Substances Act, 1997, “possession with knowledge”—Legislature could not have intended to make mere physical custody without knowledge of offence, therefore “possession” must be conscious possession—By virtue of S.29 of Control of Narcotic Substances Act, 1997 the prosecution had only to show by evidence that accused had dealt with the narcotic substance or had physical custody of the same; or directly concerned with it, unless accused would prove by preponderance of probability that he did not knowingly or consciously possess the article—Without such proof, accused would be held guilty by virtue of S.29 of Control of Narcotic Substances Act, 1997.

2012 PLD 383 LAHORE-HIGH-COURT-LAHORE

ABDUL WASAY VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 15—Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001, Sched. V—Possession of narcotics, aiding, abetment or association in narcotic offences—Bail, refusal of—Ephedrine as a controlled substance—Scope—Vehicle of accused persons had been intercepted at a checkpoint and after their search, 25 kilograms of controlled substance, Ephedrine, was found in their possession, which the accused persons were carrying without any license/permit—Contentions of the accused persons was that they were arrested on the conspiracy of the owner of a pharmaceutical company, who provided the vehicle and controlled substance to the accused persons for transportation and subsequently informed the Anti-Narcotics Force officials about it; that accused persons had some business dealings with the said owner of pharmaceutical company and he involved the accused persons in the case to get rid of his liability; that officials of the Anti-Narcotics Force had investigated the matter and found force in the contentions of the accused persons; that police investigation officer also found the contentions of the accused persons to be plausible and placed them in column No.3 of the report submitted under S.173, Cr.P.C; that accused persons were no more required for further investigation, and that their implication in the case could only be considered after recording of evidence—Validity—Ephedrine was a controlled substance falling under Schedule V of the Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001, therefore, possession of same clearly fell within the ambit of S.6 of the Control of Narcotic Substances Act, 1997—Keeping Ephedrine without any licence or lawful permission was in violation of S.6 of the Control of Narcotic Substances Act, 1997, which was punishable under S.9 of the said Act—Contention of the accused persons that they were trapped by the owner of a pharmaceutical company with whom they had some business dealings, was not supported by any evidence—Investigation officer had placed the accused in column No.3 of the challan and observed that controlled substance had been recovered from the accused persons and their guilt had to be decided by the court in accordance with the law—Since huge quantity of controlled substance was recovered from the accused persons and they had no valid licence for the same, no ground for grant of bail was made out—Bail petitions of accused persons were dismissed, in circumstances.

2012 YLR 2596 KARACHI-HIGH-COURT-SINDH

MUHAMMAD ABDULLAH VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)—Possessing and trafficking narcotics—Bail, grant of—Further inquiry—Deeper appreciation of the record at bail stage could not be gone into, but only a tentative assessment was to be made just to find out as to whether accused was connected with the commission of offence or not—Delay of seventeen days in lodging of F.I.R.—Mashirnama of arrest and recovery were not prepared at the spot—Samples were sent after ten days of the alleged recovery—Prima facie, the provisions of S.21 of Control of Narcotic Substances Act, 1997 had been violated—No private witness was associated at the time of alleged recovery or arrest—Though private persons were not required to witness the recovery of narcotic substance as provided under Control of Narcotic Substances Act, 1997, but the place of recovery and the time of recovery had to be kept in view to prevent false implication of innocent people—Case requiring further inquiry in terms of subsection (2) of S.497, Cr.P.C., accused was admitted to bail, in circumstances.

2012 YLR 1403 KARACHI-HIGH-COURT-SINDH

SHAH MEHMOOD alias SHAHU VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(b)—Possession of narcotic—Bail, grant of—Further inquiry—Contents of F.I.R. revealed that allegedly recovered narcotic had been shown to be approximately one and a half kilograms—Prosecution had confirmed that alleged recovered substance was never weighed at the time of the preparation of the Mashirnama—Delay of eleven days in sending samples for analysis had not been explained—Question as to whether the quantity of 500 grams marginally exceeded the upper limit of 1000 grams was yet to be determined—Case of accused was a border line case between Ss.9(b) & 9(c) of Control of Narcotic Substances Act, 1997 and required further inquiry in terms of S.497(2), Cr.P.C—Accused was admitted to bail, in circumstances.

2012 YLR 1316 KARACHI-HIGH-COURT-SINDH

BACHA MIR VS State

Ss. 6, 8, 9(c) & 25—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Plea of counsel for accused was that no private Mashir or passenger from the Bus in question was associated or made witness—Provisions of S.25 of Control of Narcotic Substances Act, 1997 had clearly provided that for the purposes of search and arrest in the narcotic cases, the provisions of S.103, Cr.P.C. was not applicable—Even otherwise, Police employees were the competent witnesses like any other independent witness; and their testimony could not be discarded merely on the ground that they were Police employees—Statements of prosecution witnesses remained constant on all material particulars, despite lengthy cross-examination to which they were subjected—Nothing came out from the defence witness which might help accused—Accused was driver of the bus in question, while co-accused was its cleaner and charas was also recovered from the secret cavities of the bus—No doubt existed regarding the conscious possession and knowledge of contraband in the case—According to prosecution story, 110 Kg slabs of one Kg, were recovered from the secret cavities, and each slab of one Kg, was separated from each bag for sending to the Chemical Examiner, which had shown that only six Kg charas was sent for chemical examination—Report of Chemical Examiner, though was positive, but according to description of articles contained in parcel, six printed plastic Pani Packets, each containing one Kg black brown colour slab wrapped in plastic Pani was sent—Undoubtedly only six slabs of charas of one Kg each out of 110 slabs were sent for chemical examination and it was not ascertained that recovery of remaining slabs were of charas or some other commodity—Conviction of accused did not call for any interference, but nothing was brought on record by the prosecution that accused were previously convicted or found previously involved in any narcotic cases—Life imprisonment to both the accused was reduced to 8 years, without any modification into quantum of fine.

2012 YLR 1237 KARACHI-HIGH-COURT-SINDH

NAEEM AHMED VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession and trafficking of narcotic—Bail, grant of—Further inquiry—Allegation against accused (customs official) of trying to smuggle narcotic through airport in connivance with co-accused passenger—Co-accused was intercepted at the departure lounge of the airport, and two mashirnamas were prepared with a gap of nine hours between them, but name of accused had not been mentioned in either of these mashirnamas—Name of accused was mentioned for the first time in the F.I.R., wherein accused had been implicated on the statement of the co-accused—No recovery was effected from the accused and prosecution had admitted that there was no material to create any relationship between the accused and his co-accused—No allegation was made regarding the accused helping the co-accused during his passage through the departure lounge of the airport—False implication of accused could not be ruled out, which required further inquiry in terms of S.497(2), Cr.P.C—Accused was admitted to bail.

2012 YLR 1138 KARACHI-HIGH-COURT-SINDH

LIAQAT VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic—Bail—Sending a sample of one gram out of the recovered quantity of narcotic for chemical analysis—Effect—Sending a sample of one gram from the quantity of allegedly recovered narcotic was not fatal to the prosecution case and it was to be established at trial whether such quantity of narcotic had been taken from the recovered quantity and whether it was sufficient for proper analysis.

2012 YLR 1138 KARACHI-HIGH-COURT-SINDH

LIAQAT VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Possession of narcotic—Bail, refusal of—Chemical report was in positive—Contention of accused that there was violation of S.103, Cr.P.C, was not tenable as in terms of Ss. 20, 21 and 25, Control of Narcotic Substances Act, 1997, S.103, Cr.P.C was not applicable in narcotics cases—Contention of accused that only 10 grams out of the 1050 grams allegedly recovered had been sent for chemical analysis was not of much significance as it was to be established at trial whether such quantity of narcotic had been taken from the recovered quantity and whether it was sufficient for proper analysis—Two previous cases of similar nature were pending against the accused which showed that he was a chronic offender—Accused had been granted bail in both the said previous cases but had abused concession of bail by being found in alleged possession of narcotic again which resulted in the present F.I.R.—Bail application of accused was dismissed, in circumstances.

2012 YLR 413 KARACHI-HIGH-COURT-SINDH

SAIFUL HAQ VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 23—Possessing and trafficking of narcotics—Bail, refusal of—Bus in question after off loading passengers was present and two persons were in the bus, one was sitting at the driving seat and the other by the side of the driver—Accused was sitting next to the driving seat—Search of the bus led to a secret cavity from which four bundles were recovered; each bundle was found to contain 100 rods of charas, each weighing 1100 grams and in all 44 Kgs of charas was recovered—When the Police party raided, the bus, passengers had already been off loaded and only two persons were sitting in the bus, one driver and the other sitting next to the driver—All the passengers having left the bus, the question would be as to why the accused was still sitting in the bus—Prima facie, there was material to connect the accused to the offence alleged against him—Bail was refused, in circumstances.

2012 PCrLJ 1524 KARACHI-HIGH-COURT-SINDH

IQBAL KHAN VS State

Ss. 6 & 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Benefit of doubt—Allegation against the accused was that he was the guard (chowkidar) of a godown from which 5000 kilograms of charas was recovered which had been locked in a container—Contentions of the accused were that he was only the guard (chowkidar) of the godown and nothing was brought on evidence to show that he was aware that the narcotic substance was hidden in the container, and that knowledge with regard to the narcotic substance could not be attributed to the accused—Validity—Persons nominated in the F.I.R. for attempting to smuggle the narcotics had not been arrested—Neither anything was recovered from the accused who was a guard (chowkidar) of the godown nor on his pointation the narcotic was recovered from the hidden cavities of the container—Perusal of record revealed that no investigation was conducted to find out the smugglers or to connect the accused with the narcotic substance—Both the witnesses had deposed that the accused was a guard (chowkidar) of the godown—Benefit of doubt, in circumstances, had to be extended to the accused—Appeal was allowed, impugned judgment was set aside and directions were given to release the accused if not required in any other case.

2012 PCrLJ 235 KARACHI-HIGH-COURT-SINDH

Mir IFTIKHAR AHMED VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8 & 9(c)—Customs Act (IV of 1969), Ss. 155-A, 155-B, 155-D, 79 & 80—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Benefit of doubt—Name of accused and his firm did not appear in the F.I.R.—Applicant and his firm was not the registered importers within the meaning of Ss.155-A, 155-B and 155-D of the Customs Act, 1969; nor accused and his firm were on active taxpayers’ list of Federal Board of Revenue and was not entitled to file/lodge any Bill of Entry—No import manifest had been filed to show the name of accused as the importer of the container—No Bill of Entry or any other document within the meaning of Ss.79 & 80 of the Customs Act, 1969 was filed by accused or his firm—Shipping documents as well as clearing and forwarding documents of the consignment which arrived at the Port, did not contain the name of accused or his firm with regard to the involvement in respect of the alleged import—Booking confirmation documents, did not contain the name of accused—Alleged cocaine was not recovered from the physical possession of accused, nor any overt or covert attempt was made to take possession of said container—Original Bill of Lading was not available to show the ownership of the container nor any other import documents, were on record which would prima facie show that accused or his firm was the importer or had knowledge of alleged goods to establish nexus with accused in the commission of the offence—Certain anomalies in prosecution case required further investigation—No credible or tangible evidence was available against accused and his firm to connect him with the commission of alleged offence—Deeper appreciation of evidence was not warranted or desirable at bail stage and the benefit of doubt, even at bail stage should also go in favour of accused—Whenever reasonable doubt would arise as to participation of accused in the alleged offence, bail should not be withheld as punishment—No useful purpose would be served by keeping accused behind the bars since all material was with the prosecution and there was no likelihood of tampering of prosecution evidence by accused—Accused having made out a case of further inquiry within the meaning of subsection (2) of S.497, Cr.P.C., he was admitted to bail, in circumstances.

2012 PCrLJ 142 KARACHI-HIGH-COURT-SINDH

ASGHAR KHAN VS State

Ss. 6 & 9(c)—Juvenile Justice System Ordinance (XXII of 2000), S.11—Possessing narcotics—Appreciation of evidence—Release of accused on probation—Accused was child at the time when alleged crime took place; he was found in a room where narcotic substances were being packed—Ten packets of charas, each weighing 1.25 Kilograms, were recovered from the bag which the accused was packing—Accused was a menial worker and was hired by someone for packing the stuff—Trial record was absolutely silent as to who was the person who owned the narcotic substance or the house—Accused was in jail since 2004 and according to Jail Roll, accused who was ordered to undergo life imprisonment, had served period of 17 years and 6 days including remissions and a period of 9 years, 11 months and 24 days were still to go—Jail Superintendent had also stated that conduct of accused had been satisfactory all along—Accused being juvenile at the time of his arrest deserved leniency and benefit of S.11 of Juvenile Justice System Ordinance, 2000—Accused was directed to be released on probation to the custody of his guardian or other respectable person from the area, who would stand surety in the sum of Rs.5,00,000 to the satisfaction of the Nazir of High Court—Accused would be kept on probation for period of 5 years and would be duly bound to report to the Trial Court on first Monday of every month till expiry of the period of probation.

2012 MLD 1503 KARACHI-HIGH-COURT-SINDH

CHRISTOPHE YAKIBONGAY VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9(c), 14 & 15—Possession of narcotics—Bail, grant of—First bail application of accused had been disposed of by High Court without touching merits of the case, with a direction to Trial Court for conclusion of trial by a specified date—Two co-accused similarly placed in the F.I.R. had already been released on bail—Accused was in custody for the last more than two years and trial was still going on—Accused was entitled to bail on the rule of consistency—Even otherwise, direction of High Court of concluding the trial within the specified period had not been followed by the Trial Court in letter and spirit—Accused was admitted to bail in circumstances.

2012 MLD 926 KARACHI-HIGH-COURT-SINDH

INAYAT alias ANO VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Possessing narcotics—Bail, grant of—Further inquiry—Alleged recovery of 1050 grams of charas was marginally exceeding boundary of 1000 grams, which did not fall within the prohibitory clause—Was yet to be decided at the trial as to whether case of accused attracted the provisions of Ss.9(b) or (c) of Control of Narcotic Substances Act, 1997—Accused had not been convicted in any of the case in which he was facing trial—Accused could not be denied the concession of bail only for the reason that he was facing trial in some cases—No private witness had been associated by the police at the time of arrest and recovery, which had made the case of prosecution doubtful and entitled accused to be admitted to bail—Accused having made out a case of further inquiry in terms of subsection (2) of S.497, Cr.P.C., he was admitted to bail, in circumstances.

2012 MLD 348 KARACHI-HIGH-COURT-SINDH

FAISAL HAYAT alias HAYATULLAH VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Possessing and trafficking narcotics—Bail, refusal of—Accused was selling heroin in odd time of night, no private witness was available—Recovered material was in the form of one hundred and ten rods of charas, total weighing Eleven hundred grams—Two customers were available as per contents of the F.I.R. who after seeing the Police mobile escaped from the spot taking advantage of the darkness of the night—Counsel for accused had contended that accused was innocent and had falsely been implicated due to mala fide intention and with ulterior motive—Counsel having failed to point out any material to support his plea, his contention was repelled—Innocence of accused could only be determined after recording of the evidence by the Trial Court—Challan having already been submitted before the Trial Court, court was directed to complete the trial within a period of two months’ time—Bail application was dismissed, in circumstances.

2011 SCMR 863 SUPREME-COURT

THE STATE through D.-G., A.N.F., Rawalpindi VS MUHAMMAD SALEEM KHAN

561-A—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)—Constitution of Pakistan, Art. 185(3)—Possession of narcotic drugs—High Court, vide impugned judgment, had converted the bail application of the accused/respondent into petition for quashment of proceedings and allowed the same—F.I.R. as well as other material on record had revealed that accused was an employee of the Civil Aviation Authority, who happened to be on duty at the Airport at the relevant time—Mere fact that accused was standing close to the other accused, therefore, would not saddle him with the responsibility of abetment of commission of the alleged offence—No incriminating evidence was available against the accused—Impugned judgment was just and fair, to which no exception could be taken on hyper-technical grounds—Leave to appeal was declined to complainant accordingly.

2011 SCMR 1471 SUPREME-COURT

MUHAMMAD HANIF VS State

Ss. 6, 7, 8, 9(c), 14, 15 & 16—Criminal Procedure Code (V of 1898), S. 516-A—Superdari of vehicle—Principle—Petitioner was registered owner of vehicle from which narcotics was recovered—No other person had come forward to claim ownership or possession of vehicle in question—Petitioner was not accused person in the case and he undertook to produce the relevant vehicle before any court of law if and when required to do so-Effect-Investigating agency was not justified in treating or taking possession of the vehicle as case property—Supreme Court directed that vehicle in question should not to be treated as case property and the same was handed over to petitioner on Superdari—Appeal was allowed.

2011 YLR 2477 KARACHI-HIGH-COURT-SINDH

REHMATULLAH VS State

Ss. 6 & 9—Possessing and trafficking of narcotics—Appreciation of evidence—‘Benefit of doubt—Co-accused was apprehended on the sole ground that he was sitting next to the driver of bus in question—Apart from that allegation no other cogent material was produced to connect said accused with the case—Statement recorded under S.342, Cr. P. C. showed that co-accused had categorically stated that he was coming from place ‘Q’ to place ‘K’ for treatment as he was above 70 years of age and could not see properly—Charas in question though was recovered from said bus, but, it was not proved that accused had any connection with the alleged crime—No objectionable item was recovered from possession of said accused and it was admitted fact that bus in question was a passenger bus and there was doubt about the accused whether he was travelling in the bus as a passenger or had any connection with the said crime—Connection of said co-accused with the case appeared to be highly doubtful in view of fact that bus was a passengers carrying bus and there were other passengers also therein—Prosecution, in circumstances, had failed to connect said accused through any convincing evidence that he had any exclusive knowledge of the concealment of narcotics in the bus to connect co-accused with the ownership of the bus—Prosecution had failed to connect co-accused with the ownership of the bus to bring home its case so far as the role of co-accused was concerned—Co-accused was acquitted from the charges and was released extending him benefit of doubt, in circumstances.

2011 YLR 2477 KARACHI-HIGH-COURT-SINDH

REHMATULLAH VS State

Ss. 6 & 9—Possessing and trafficking of narcotics—Appreciation of evidence—Sentence, reduction in—Accused who was driving the bus in question, was asked to stop the bus, but he instead of stopping the same raised the speed and tried to escape from the scene; and in order to make his escape good, he hit a motorcycle and injured the motorcyclist—No convincing material had been produced by accused denying the fact as to how it was possible that he was not having any knowledge about the charas present in the bus, which he was driving—Not believable that the driver had no idea or knowledge about the contents and articles being transported by him or present in the bus, which he was driving—Case of the prosecution against accused, was based upon the appraisal of the evidence, supported with reasons placed on record–No evidence was produced by accused to show misreading and omission from consideration of the evidence—Items recovered front the vehicle in possession of the driver’ were presumed to be assenting to be in his control and in his knowledge—If the drugs were secured from the possession of accused, then it was normally believed that he had a direct relationship with the drugs; and the burden of proof that he had knowledge of the same lay heavily on him—Prosecution was able to bring home the case so far as the role of accused (driver) was concerned—In the present case, out of 260 Kg. charas, only 1200 grams was sent for chemical examination–No sample was taken from the packets except the one sent for chemical examination—Accused, in circumstances, could be hauled up only to the extent of drugs sent for chemical examination only, as no evidence was on record that balance item was also charas; as no sample was drawn from the other packets alleged to be charas—Sentence awarded to accused was reduced from life imprisonment to sentence already served by him—Jail Superintendent was directed to work out the remaining sentence of accused; and if he had already served his sentence, then, accused was to be released.

2011 YLR 2349 KARACHI-HIGH-COURT-SINDH

IRFAN ALI VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Recovery of norcotics—Bail, grant of:–Further inquiry—No expert report was available in the case—When Chemical Examiner’s report in affirmative, was not available in the case, the case would carry a status of further inquiry; and on such score alone the benefit of bail could be extended to accused in the interest of justice—Accused was granted bail, in circumstances.

2011 YLR 2259 KARACHI-HIGH-COURT-SINDH

MUHAMMAD AKBAR VS State

498-A—Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9(c)-Possessing and trafficking of narcotics—Protective bail, grant of—Counsel for accused had contended that accused was innocent and had been falsely implicated in the crime by the prosecution; that name of father of accused was also different; that Police was causing harassment to accused; and that there was serious apprehension that accused would be arrested—Counsel had further stated that it was learnt that non-bailable warrants had been issued against accused, who himself wanted to surrender before the Trial Court and to face trial and that accused had thrown himself at the mercy of the court—Court, without touching the merits of the case, admitted accused to protective bail for seven days, in circumstances.

2011 YLR 2026 KARACHI-HIGH-COURT-SINDH

MUHAMMAD AFZAL VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Prohibition of possession of narcotic drugs etc.—Bail, refusal of—Further inquiry—Charas in question was recovered from the Jeep which was driven by accused and the co-accused, who was alleged to be the driver of accused—Samples of charas had been taken from each packet—Was yet to be seen in the trial whether accused had been falsely implicated due to some political enmity which required evidence; and at bail stage only tentative assessment was to be made by the court—At bail stage it could not be said that accused had been falsely implicated in a false case—Accused having failed to make out a case for further inquiry, their bail application was dismissed.

2011 YLR 1483 KARACHI-HIGH-COURT-SINDH

KHAN MUHAMMAD VS State

Ss. 6 & 9(c)—Prohibition of possessing and trafficking of narcotics—Appreciation of evidence—Prosecution had examined only two Police Officials—Car claimed to have been used for transportation of the narcotics was owned by one, who had not been examined—No explanation was offered for non producing and non-examination of said owner of car–Discrepancies were found with regard to the chassis number; of the car alleged to have been used in the crime—Impugned judgment, in circumstances, was not sustainable in law–Burden was upon the prosecution to prove charge against accused beyond reasonable doubt; and law presumed an accused innocent till proved guilty beyond reasonable doubt—Material contradictions existed in the deposition of the two prosecution witnesses—Evidence of both the prosecution witnesses on the seizure of narcotics/samples secured from the spot had material contradictions, which were sufficient to hold that the prosecution had failed to prove the case against accused beyond reasonable doubt—Impugned order passed by Special Court, was set aside, in circumstances.

2011 YLR 1411 KARACHI-HIGH-COURT-SINDH

NASRULLAH VS State

Ss. 6 & 9(c)—Prohibition of possession of narcotic drugs—Appreciation of evidence—Contention of accused was that as 150 grams charas was sent from 15 bundles weighing 15 kgs., case of accused fell under S.9(b) and not under S.9(c) of Control of Narcotic Substances Act, 1997–Further contentions were that firstly, 150 grams of charas and then remaining contraband (charas) was sent for chemical examination and same was positive; such despatch of charas in two lots was with mala fide intention and ulterior motive; that second report being managed one, had no value in the eyes of law having been sent without approval of the Trial Court, but on directions of District Public Prosecutor—Validity—Held, in the first instance 150 grams of charas was sent for chemical examination, report in respect thereof was positive; in the second phase remaining contraband (charas) was sent for chemical examination, report in respect thereof was also positive—Counsel for accused was unable to show that accused had ever challenged before any court of law that recovered article was not narcotics—Even in the appeal, appellant had not alleged that the recovered item was not narcotics—No reason existed to interfere with the impugned judgment passed by the Trial Court—Appeal was dismissed.

2011 YLR 172 KARACHI-HIGH-COURT-SINDH

NOOR REHMAN VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 14 & 15—Possession of narcotic drugs etc., aiding, abetting or association in narcotic offences—Bail, refusal of—Accused were arrested red handed with huge quantity of heroin and charas—Reasonable explanation for non-availability of private mashirs during recovery proceedings was given—No reason for mala fide on the part of Police for implicating the accused was given either—Report of the Chemical Examiner was positive—No case of further inquiry within the meaning of S.497(2), Cr. P. C. was made out—Accused were alleged to have been involved in heinous crime, were not entitled to bail—Petition was dismissed.

2011 PCrLJ 1838 KARACHI-HIGH-COURT-SINDH

YAR MUHAMMAD VS State

Ss. 6 & 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Two co-accused were established to be the custodians and the drivers of the trucks carrying charas—When the Police party apprehended said accused, they had specifically pointed out not only about the secret cavities in the container, but also about the charas in one of the trucks—Accused admitted that they were in collaboration and consultation with international drug peddlers; and had concealed said charas on their instructions—Chemical Examiner’s report was in positive and necessary legal requirements in that regard had been fulfilled by the prosecution—No significant material contradiction, improvement and discrepancy were in the deposition of prosecution witnesses, except few minor contradictions, which were ignorable—No enmity of the Police with accused persons to falsely implicate them was established—Deposition of prosecution witnesses had mostly remained the same, unshettered and consistent—Prosecution could not be said to have not proved its case against accused persons beyond reasonable doubt—Accused persons having been found guilty of the charge punishable under Ss.6 & 9(c) of Control of Narcotic Substances Act, 1997, they were rightly convicted and sentenced—Order passed by the Trial Court was maintained, in circumstances.

2011 PCrLJ 1838 KARACHI-HIGH-COURT-SINDH

YAR MUHAMMAD VS State

Ss. 6 & 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—Benefit of doubt—Documents produced on record had proved that accused who was only the Chowkidar of Godown from where contraband items were recovered, had nothing to do with said items—Nothing incriminating was recovered from the Chowkidar, except a visiting card, a mobile phone and some cash—Special Prosecutor agreed that the role of accused was different from the role of other accused person—Prosecution had failed to connect accused (Chowkidar) with absconding accused—Even the spy had not named accused among the suspected drug peddlers—Prosecution had failed to connect accused with recovery of said contraband items and mere presence of accused on the place would not implicate him in the involvement of said crime—Reasonable doubt, in circumstances had been created with regard to the role of accused—Prosecution having not been able to establish its case, accused was liable to be given the benefit of doubt; it was better to acquit 100 guilty persons than to charge one innocent person—Accused in circumstances was acquitted of the charge and was released.

2011 PCrLJ 1551 KARACHI-HIGH-COURT-SINDH

ALI ZAMAN VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9(c)/14/15—Possession of narcotics—Bail, refusal of—“Charas” weighing 3.850 kgs had allegedly been recovered from the possession of accused on the spot—Persons passing by despite approach had refused to become witnesses in the case—Section 103, Cr.P.C. was not applicable to the cases registered under Control of Narcotic Substances Act; 1997—Report of Chemical Examiner was positive—F.I.R. had been promptly lodged implicating the accused with a specific role—Co-Âaccused had been released on bail being a woman and her case being a border line case—No undue delay had been shown on the part of prosecution—Sufficient material was, prima facie, available on record to connect the accused with the commission of the offence—Such crimes were on the rampant, which should be dealt with strictly in accordance with law and looking into all the prevailing circumstances of the case—No case of further inquiry was made out—Bail application was dismissed in circumstances.

2011 PCrLJ 1086 KARACHI-HIGH-COURT-SINDH

Haji MUHAMMAD IQBAL VS MUHAMMAD SAEED

Ss. 6, 9(c) & 29—Anti-Narcotics Force Act (III of 1997), Ss.3 & 5—Criminal Procedure Code (V of 1898), Ss.103, 537 & 561-A—Constitution of Pakistan, Art.199—Quashment of proceedings—Constitutional jurisdiction and powers of High Court under S. 561-A, Cr.P.C.—Scope—Possession of narcotic drugs etc.—Accused challenged proceedings against them through constitutional petition contending that in the presence of Anti-Narcotic Force, local Police had no authority to register the F.I.R. and investigate the case—Validity—Accused having been allegedly involved in a case registered under Ss.6 & 9(c) of the Control of Narcotic Substances Act, 1997 which provided maximum penalty of death or imprisonment of life, innocence or guilt of the accused could not be determined without conclusion of the trial—Under S.29 of the Control of Narcotic Substances Act, 1997, accused was presumed to have committed the alleged offence until the contrary was proved—Section 103, Cr.P.C. made the presence of two or more respectable inhabitants of the locality mandatory at the time of search made by an officer—Application of S.103, Cr. P. C. was purposely excluded. by the legislature from searches under Control of Narcotic Substances Act, 1997 in order to avoid formalities/complications of S.103, Cr. P. C.—Exclusion of role of local Police from investigating narcotic case would negate the provisions of S.21 of the Control of Narcotic Substances Act, 1997—High Court had ample powers under Art.199 of the Constitution and S.561-A, Cr.P. C. to quash the proceedings which were ex facie illegal or where the court had arrived at a positive conclusion that the proceedings were ex facie coram non judice—High Court could exercise jurisdiction in exceptional cases without waiting for the Trial Court to pass orders under S.249-A or 265-K, Cr.P.C.—Where no offence was made out by facts on record, allowing prosecution to proceed with the trial would amount to abuse of the process of law—Assumption of jurisdiction without lawful authority could be quashed in constitutional jurisdiction—Section 537, Cr.P.C. provided that no finding, sentence, order passed by a court of competent jurisdiction would be reversed or altered on account of any error, omission or irregularity in the complaint, report by Police Officer under S.173, Cr.P.C. summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or any inquiry or other proceeding under the Criminal Procedure Code—Police had not violated any law by arresting the accused—Petition was dismissed accordingly.

2011 PCrLJ 398 KARACHI-HIGH-COURT-SINDH

INAYATULLAH VS State

Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c), 12, 13, 14, 15, 20, 21, 22 & 25—Possession of narcotics—Bail, refusal of—Accused were arrested red-handed on the spot by the raiding party when they were taking out the narcotic drug from the secret cavity of the bus—No allegation of mala fide on the part of prosecution was levelled—No reason for foisting huge quantity of narcotics was conceivable—Objections raised by the accused as to non-compliance of Ss.20, 21 and 25 of Control of Narcotic Substances Act, 1997 and S.103, Cr.P.C. were misconceived in fact and law—Section 25 of Narcotic Substances Act, 1997 had excluded the application of S. 103, Cr.P.C. in narcotic cases—Failure to associate private witness would not vitiate proceeding under Control of Narcotic Substances Act, 1997—Provisions of Ss.20, 21 and 22 of Control of Narcotic Substances Act, 1997 being directory, non-compliance of the same would not make the conviction bad in the eyes of law—Sufficient material was available against the accused for connecting them with the alleged offence; recovery had been effected from their joint possession—Accused, were not entitled to grant of bail—Application was dismissed.

2011 PCrLJ 72 KARACHI-HIGH-COURT-SINDH

GHULAM HUSSAIN VS State

Ss. 6, 9(c), 14 & 15—Possession of narcotics—Appreciation of evidence—Case property was not sealed and mashirnama bore no signatures of any personnel of ship—Mashirnama did not show that after drawing the samples, signatures of the witnesses had been obtained—Neither the sample was dated nor it was sealed—No shape or the description of the charas had been mentioned in the mashirnama—F.I.R. was totally silent as regard to the drawing of the sample or sending the same for the chemical examination—All the mashirs in the case were that of Customs Department, who did not have any idea with regard to the weight of the bags which were alleged to have been recovered from the possession of accused persons—No time had been mentioned on the report showing recovery of the contraband items—Whenever a doubt was created, the advantage of that had to be given to accused, not as a matter of grace, but as a matter of right—Case was full of contradictions and prosecution had not been able to prove the charges against accused persons beyond reasonable doubt—Prosecution having failed to prove its case against accused persons, beyond any reasonable doubt, accused were acquitted of the charges against them.

2011 MLD 1555 KARACHI-HIGH-COURT-SINDH

MUHAMMAD ALI VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9 & 51—Possessing and trafficking of narcotics—Bail, grant of—Further inquiry—Under provisions of S.51(2) of Control of Narcotic Substances Act, 1997, if the court was of the opinion that it was a “fit case” for grant of bail, court, against security of substantial amount, could grant bail—Sample of only one kilogram was sent for chemical examination out of four kilograms contraband, stated to have been recovered from accused—Accused, in circumstances, had been able to pass test of “fit case” as contemplated under S.51(2) of Control of Narcotic Substances Act, 1997; as well as test of subsection (2) of S.497, Cr.P.C. i.e. further inquiry—Accused was enlarged on bail, in circumstances.

2011 MLD 1142 KARACHI-HIGH-COURT-SINDH

IQBAL HUSSAIN VS State

Ss. 6 & 9(c)—Possession and trafficking of narcotics—Appreciation of evidence—Contents of F.I.R. as well as memo of arrest and recovery were corroborated by the evidence of complainant, recovery witness and their evidence could not be shaken on any of the material particulars during their cross-examination—Evidence of said witnesses was further corroborated by positive report of Chemical Examiner in respect of the entire charas secured from the secret cavities/boxes of the Bus on the disclosure of accused—Both witnesses, no doubt belonged to the Anti-Narcotic Force but, same itself could not be considered on a valid reason to discard their statements—Since prosecution had been able to successfully adduce the convincing evidence in support of the alleged recovery of a huge quantity of charas, non-recovery of driving licence of accused or registration Book of the Bus was not of so importance to violate the said recovery of contraband charas—Accused could not furnish cogent reason for their alleged false implication—Involvement of accused in the case had been proved by confidence inspiring evidence of prosecution witnesses, who had no animosity or any interest to depose falsely against them—Evidence adduced by the prosecution during the trial of the case was properly appreciated by the Trial Court—Accused, in circumstances, were rightly found guilty of the charge on the basis of the material brought on record—Conviction and sentence awarded by the Trial Court to accused persons, were maintained, in circumstances.

2011 MLD 923 KARACHI-HIGH-COURT-SINDH

HAMID ALLAUDDIN VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 14 & 15—Prohibition of possession of narcotic drugs and aiding, abetment or association in narcotic offences—Bail, refusal of—Medical grounds—Counsel for accused did not press bail application on merits, but had confined his arguments on medical grounds stating that accused suffered from kidney problem—Counsel had placed on record medical report of accused issued by Medical Officer—3.300 Kgs. of heroin powder was recovered from the possession of accused while he was leaving abroad—Accused did not suffer from the ailment for which medical treatment was not available in the jail—Accused did not suffer from such disease which could prove detrimental to his life—Accused was declined concession of bail on medical grounds.

2011 MLD 159 KARACHI-HIGH-COURT-SINDH

MATEEN KAMAL VS State

Ss. 6, 9(c) & 29—Possession of narcotics—Appreciation of evidence—Huge quantity of Charas weighing 1948 Kgs was recovered from the specifically built secret store room in the upper portion of the bungalow wherein accused were allegedly living as tenants—Said store room could not have been constructed without express permission of accused owner of the bungalow who was in full knowledge of the construction of the store built for storing Charas and. was connected with the recovered Charas—Accused owner could not show that he had been away from his bungalow for considerably long period of time during which accused tenant might have constructed the store without his knowledge—Though accused denied that they were living in the bungalow as tenant but recovery of the car of one of the accused established their presence in the said bungalow—Judgment of the Trial Court was upheld—Appeals were dismissed.

2011 MLD 110 KARACHI-HIGH-COURT-SINDH

HAFEEZ-UR-REHMAN TAHIR VS State

Ss. 497, 103 & 94—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c), 20, 21, 22 & 25—Possession of narcotics—Bail, refusal of—Second bail application was filed on the same grounds on which Trial Court had declined bail—Validity—No fresh ground was available to accused—Same points could not be raised in the garb of new developments—Mere filing of application for production of record relating to flight timings did not bring the case of accused within purview of further inquiry especially when Trial Court was examining evidence—Sufficient material was available on record to proceed against the accused whereas no previous enmity or mala fide against prosecution was alleged—Accused’s plea that non-association of private witnesses during raid amounted to non-compliance of Ss.20, 21 and 25 of the Control of Narcotic Substances Act, 1997 and S.103, Cr.P.C. was misconceived in fact and law—Section 25 of Control of Narcotic Substances Act, 1997 excluded application of Ss.20, 21 and 22 of Control of Narcotic Substances Act, 1997 being directory in nature and non-compliance of the same would not hold trial/conviction bad in the eyes of law—Accused could not make out a case of second application on fresh grounds for grant of bail; his application was dismissed.

2010 SCMR 927 SUPREME-COURT

MUHAMMAD NOOR VS State

6—Word “possess”—Meaning—“Possess” as mentioned in S.6 of Control of Narcotic Substances Act, 1997, means that it is necessary to show that accused had article which turned out to be narcotic drugs—Prosecution must prove that accused was knowingly in control of something in the circumstances, which showed that he was assenting to be in control of it and it is not necessary to show in fact that accused had actual knowledge of that which he had—Knowledge is an essential ingredient of the offence as word “possess” connotes in the context of S.6 of Control of Narcotic Substances Act, 1997 would be frustrated.

2010 PLD 623 SUPREME-COURT

ALI MUHAMMAD VS State

6—Criminal Procedure Code (V of 1898), S.516-A—Case property—Custody and disposal of. narcotic substances—Procedure—Right of accused—Destruction of case property, pending trial—Scope—Duty lies upon prosecution to produce case property in court as it is the evidence, which has been collected during investigation and is being used against accused to prove offence—At the same-time, it is the right of accused to examine allegedly recovered property: during trial, when prosecution has discharged its duty in producing case property but second and third provisos to S.516-A, Cr. P. C. have made exceptions to the general rule—Discretion vested in court under second proviso to S.516-A, Cr. P. C. is to be exercised judicially before and at the time of destruction of property to safeguard interest of all concerned including accused—By destroying entire case property after keeping its samples, accused would be deprived of his right to examine the same at the time of trial, if it is done without his knowledge—When entire property is produced before the court, in order to safeguard rights of accused about weight, contents of packets, seals affixed on packets, legal possession or a request for sending entire property for analysis, which might raise at the trial, could be taken into consideration at the time of passing the order of destruction of the property by giving notice to accused person—If court suo motu exercises power under second proviso then it is essential to give notice not only to accused but also to prosecution so that after hearing contentions and objections, if any, by any party, order of destruction of property can properly be passed—Issuing of notice to parties is an essential requirement of law to hear the parties.

2010 PLD 623 SUPREME-COURT

ALI MUHAMMAD VS State

6—Criminal Procedure Code (V of 1898), S.516-A—Narcotic drugs—Proof—Right of accused—Accused has right to make prayer before Trial Court or High Court for referring entire case property allegedly recovered from him to Chemical Analyzer for report as to whether or not it is a narcotic substance or drug—Notice is required to be issued to accused or prosecution, as the case may be, when an application for destruction of property is moved by any party and while exercising powers of suo motu, court should issue notice to prosecution and accused.

2010 PLD 623 SUPREME-COURT

ALI MUHAMMAD VS State

Ss. 6 & 9 (c)—-Criminal Procedure Code (V of 1898), Ss.516-A & 537—Reappraisal of evidence—Benefit of doubt—Destruction of narcotics—Incurable irregularity—Charas weighing 192 kilograms was recovered from the possession of accused—Trial Court convicted the accused under S.9 (c) of Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for life—Conviction and sentence awarded by Trial Court was maintained by Lower Appellate Court—Validity—Magistrate destroyed case property, without giving any notice to prosecution or accused or passing any appropriate order for allowing application, without permission of Trial Court and preparing samples—Supreme Court noted it with great concern that entire process of destruction was illegal, objectionable and for that Magistrate should be taken to task—Supreme Court directed that matter should be reported to High Court for taking appropriate action in accordance with law—As no opportunity was given to accused to protect his rights in the proceedings of destruction of property, therefore, he was prejudiced in his defence, which could not be cured under S.537 Cr. P. C. —Prosecution failed to prove the case against accused beyond reasonable doubt, therefore, he was entitled to benefit of doubt, which was accordingly given to him—Supreme Court set aside conviction and sentence awarded to accused by the courts below and he was acquitted of the charge-Appeal was allowed.

2010 PCrLJ 567 PESHAWAR-HIGH-COURT

RAFIQ VS State

6—Possession of narcotic—Word ‘possession’, defined and explained-Possession’ implied a physical capacity to deal with the ” thing as one liked to the exclusion of any one else and a determination to exclusion that physical possession on one’s own behalf—Possession implied dominion over an object that he had it and that he could exercise it—Possession, must be conscious and intelligent possession and merely the physical presence of accused.

2010 PCrLJ 348 PESHAWAR-HIGH-COURT

BASHIR KHAN VS State

Ss. 6/7/8/9—Recovery of narcotics—Appreciation of evidence—Benefit of doubt—Murasila as well as F.I.R. indicated recovery of certain items, but said items were not included in the recovered case property—Items mentioned in memo. of personal search were never produced before the court during trial—In cases involving recovery of narcotic, the report of laboratory indicating chemical analysis of samples thereof was considered to be of immense significance as it could provide a strong ground for connection between an accused and the incriminating material—Three samples were separated from the incriminating narcotics—Said exhibit, though contained F.I.R. number and its date, but was silent regarding. the name of Police Station and the relevant district—All the doubts in respect of subjecting the solitary sample, allegedly separated from the recovered lot and its dispatch to Forensic Science Laboratory, would reasonably prevail, in circumstances—Case of prosecution was that after recovery of contraband narcotic, the entire bulk along with one separated sample of 5 grams was deposited in the State warehouse, but deposit of incriminating vehicle, was not gatherable from, investigation record produced before the Trial Court—Inspector Incharge, warehouse, did not speak of deposit of sample along with the case property in the said warehouse—Preparation of recovery memo. was very much dubious as the said document, though pertained to seizure of incriminating narcotics, was not signed by any of the witnesses thereto—NonÂ-production of mobile phone, driving licence and pistol etc. before the Trial Court, despite its recovery at the spot of occurrence, had extended sufficient reason to disbelieve the version of prosecution in reference to the entire alleged recoveries—Prosecution had nowhere in the entire trial, attempted to prove that the samples allegedly separated on the spot were withdrawn from the whole lot comprising 39 packets—Prosecution, in circumstances remained unsuccessful in bringing home the charge against accused without reasonable doubt—Impugned findings of the Trial Court were set aside and accused was acquitted, in circumstances.

2010 YLR 2047 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ILYAS VS State

497(2)—Control of Narcotic Sub-stances Act (XXV of 1997), Ss.6/9—Possession of narcotic—Bail, grant of—Further inquiry—Recovery proceedings were witnessed by the Police Officials—Case of the prosecution was not that accused was previously known to the Police Officials who conducted the alleged raid—Accused, after his apprehension in the case, was never put to the identification parade—Nothing was on record to confirm that the house from which alleged recovery was effected, was exclusively owned by accused—Case against accused, in circumstances, was of further inquiry within the ambit of subsection (2) of S.497, Cr.P.C.—Accused was granted bail, in circumstances.

2010 YLR 2910 KARACHI-HIGH-COURT-SINDH

MUHAMMAD MUDASIR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(b)—Possession of narcotics—Bail, grant of—Accused could be imprisoned for seven years and the .offence did not fall within the prohibitory clause of S.497, Cr.P.C.—Recovery memo had shown discrepancy in the actual weight of heroin recovered—Bail was granted.

2010 YLR 2617 KARACHI-HIGH-COURT-SINDH

THE STATE/ANTI NARCOTICS FORCE VS MUHAMMAD SIDDIQ

Ss.6 & 9 (c)—Qanun-e-Shahadat (10 of 1984), Art.129(g)—Criminal Procedure Code (V of 1898), S.417—Possession of narcotics (Charas 15400 grams and opium one Kg.)—Appreciation of evidence—Appeal against acquittal—Prosecution had not produced entry-number of leaving Police Station by complainant Inspector, according to his deposition, entry of deparÂture was maintained—Memos. of recovery and arrest, F.I.R. and statements under S.161, Cr.P.C., did not find mention entries of departure from and return to Police Station and registration of mobile vehicle–Complainant Inspector during cross-examination had admitted to be head of raiding party, complainant, Seizing Officer, Investigating Officer, Incharge Malkhana and Additional S.H.O.—Practice of Investigation Officer and complainant to be same for hindering independent investigation was against spirit of independent investigation—Complainant Inspector was wearing six caps simultaneously, which casted serious doubt about independent investigation having been conducted in the present case—Nothing on record to show that complainant Inspector was working in Investigation Wing, when he conducted investigation of the present case—Such fact alone going to root of case and being a material flaw in prosecution case would make whole investigation coram non judice—Memos. of arrest and recovery did not find mention of date of recovery of opium, colour of handbag from which Charas was secured and number of Charas patties and rods—Denomination of currency notes recovered from accused had not been mentioned in any document—Signatures of Mashirs of packets of Charas and opium had not been mentioned—Police Constable having deposited narcotic substances with Chemical Analyzer had not been cited as witness in charge-sheet-Non-production of such best evidence by prosecution had not only broken important link of prosecution case, but would lead to adverse inference drawn against prosecution—Appeal against acquittal was dismissed.

2010 YLR 2297 KARACHI-HIGH-COURT-SINDH

KHADIM HUSSAIN VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Possessing narcotic—Bail, refusal of—Challan of the case had been submitted—In absence of any document on record, neither it could be agreed nor disagreed with prosecution that it was the accused who was delaying proceedings of the trial—Threshold quantity under S.9(c) of Control of Narcotic Substances Act, 1997 was 1000 grams, whereas quantity recovered in the case was 1500 grams which was 50% more than the threshold quantity—It would not be reasonable to classify 50% as marginally more—Trial Court had rightly observed that provisions of S.103, Cr. P. C. were not attracted to narcotic cases as provided under S.25 of Control of Narcotic Substances Act, 1997—Moreover, when an independent person was not willing to be a witness, it would be difficult to come to the conclusion that he would be eager to disclose his name—As offence against accused fell within the prohibitory degree under S.497, Cr.P.C., bail application of accused was rejected.

2010 YLR 2005 KARACHI-HIGH-COURT-SINDH

PERVAIZ KHAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 21—Possession of narcotic —Bail, refusal of—Section 21 of the Control of Narcotic Substances Act, 1997, was applicable to cases of recovery effected from a building, place, premises or conveyance and not to the recovery of narcotics from the personal search of a person, as in the present case–Assistant Sub-Inspector of Police, therefore, was competent to search and arrest the accused—“Charas” weighing 1200 grams having been recovered from the accused, his case was not a borderline case so as to fall within the ambit of section 9(b) of the said Act, because amount exceeding the prescribed limit of 1000 grants by 20% could not be treated as marginal, although the quantity of narcotics exceeding upto 10% of the prescribed limit might be treated as a marginal case—Small but reasonable quantity of 10 grams “Charas” had been taken as sample from the packet recovered from the accused for sending to Chemical Examiner for analysis, which did not suffer from any wrong, because the entire quantity was not required to be sent for such purpose—Recovery of narcotics having been effected from the accused by the police at midnight, association of any private person with the recovery proceedÂings was not possible, as explained in the F.I.R. itself—Bail was declined to accused in circumstances.

2010 YLR 1322 KARACHI-HIGH-COURT-SINDH

THE STATE/ANTI NARCOTICS FORCE through Deputy Director (Law), Karachi VS MUHAMMAD ADEEL HUSSAIN

Art. 157 & S.5—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 46 & 48—Criminal Procedure Code (V of 1898), S. 417—Possessing narcotics–Appeal against acquittal-Limitation–Condonation of delay, application for—Appeal against order of acquittal was filed with delay of 17 days along with application for condonation of delay—Applicant had neither given any plausible or justifiable reasons for delay in filing appeal, nor had explained delay of each day—Appellant having not been able to make out a case for condoning the delay in filing of the appeal, appeal and application for condonation of delay were dismissed.

2010 YLR 1157 KARACHI-HIGH-COURT-SINDH

NAIMATULLAH KHAN VS THE STATE through Anti-Narcotics Force, Sindh, Karachi

540— Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Object of S.540, Cr.P.C.—Possessing narcotic—Application for recalling and re-examination of witness already examined and cross-examined—Application for recalling and re-examination of the Investigating Officer, who was already examined, had been dismissed by the Trial Court—Validity—Court was seized of ample jurisdiction to summon, recall and re-examine any person who had already been examined, provided such recall and re-examination was essential to the just decision of the case—Said powers were not to be exercised in a routine or mechanical manner or as a matter of course—Before exercising such power, the court had to apply its mind objectively to the fact that re-examination of such witness appeared to be essential to the just decision of the case—Once applicant chose not to raise any objection for the examination of the Investigating Officer who was also the complainant and seizing officers in the sequence in which the prosecution led its evidences, not much was left to object to such course after the examination of the Investigating Officer, unless in subsequent evidence any incriminating piece of evidence or material had come on record that needed to be confronted to the Investigating Officer for the purpose of unearthing the truth—In the present case, sole witness in addition to the Investigating Officer was in the witness box and had not been cross-examined by the petitioner and it was not the case of the petitioner that the witness under cross-examination had produced any incriminating material that needed to be confronted to the Investigating Officer–Object of S.540, Cr.P.C. was not to clothe accused with a tool to protract the trial or fill up the lacuna where the accused did not object or take any exception to the sequential order of examination of prosecution witness in the order and manner considered appropriate by the prosecution, later on such course could not be objected to nor furnish a good ground—Application for recalling and re-examination of witness, was rightly dismissed, in circumstances.

2010 YLR 622 KARACHI-HIGH-COURT-SINDH

RIZWAN AHMED VS State

Ss.6 & 9—Possession of narcotic—Appreciation of evidence—Fine, reduction in—Recovery of narcotic was made from the possession of accused which was sent to the Chemical Examiner—No discrepancy was noticed in the oral evidence regarding case property and Chemical Examiner’s report—Accused had sought reduction in the sentence awarded to him on the ground of mercy—Such prayer could not be entertained as in such like cases courts were required to award adequate punishment instead of showing sympathy—No case was made out requiring interference in the impugned judgment—Conviction and sentence awarded to accused were maintained, however fine was reduced from Rs.50,000 to Rs.10,000.

2010 PCrLJ 1715 KARACHI-HIGH-COURT-SINDH

MUHAMMAD HANIF alias TANGO VS State

497(2)—Penal Code (XLV of 1860), Ss. 324/353/186/34—Control of Narocotic Substances Act (XXV of 1997), Ss. 6/9(c)—Attempt of commit murder and possession of narcotics—Bail, grant of—Further inquiry—Accused was granted bail for the offence punishable under Ss. 6/9(c) of Control of Narcotic Substances Act, 1997—Case was of an infective firing—Where ineffective firing was alleged, matter would require further inquiry to determine the role actually played by accused in the case—Accused was admitted to bail, in circumstances.

2010 PCrLJ 1692 KARACHI-HIGH-COURT-SINDH

SUHRAB SANDANO VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Bail, grant of—Further inquiry—1140 grams of charas was allegedly recovered from accused in the shape of pieces while only 100 grams were taken out of the entire recovered material for the purpose of Chemical Analysis—As to whether the sample was taken from each piece or. only from one of the pieces was not mentioned—No conclusive finding could be recorded that all the pieces were of contra-band narcotics—Proper and final finding, in circumstances, was yet to be recorded at the trial—No weapon was recovered from accused nor he caused any injury to anybody—Accused had already been granted bail in main case—Out of the entire contra-band allegedly recovered from accused, only 100 grams having been sealed separately for sending to Chemical Analyser, at the most, case against accused fell under S.9(b) of Control of Narcotic Substances Act, 1997, which carried punishment for 2 years—Even said sample taken out was not sent to the Chemical Analyser by the Investigating Officer—Case against accused being that of further inquiry, accused was admitted to bail.

2010 PCrLJ 1591 KARACHI-HIGH-COURT-SINDH

GUL AMIR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(b)—Possessing of narcotics—Bail, grant of—Co-accused, against whom similar allegation was attributed, had been granted bail—Report of Chemical Analyzer would make little difference so as to place case on different footing from that of co-accused who was granted bail by the Trial Court—Recovery had been shown in the case under Ss.6/9(b) of Control of Narcotic Substances Act, 1997 in which 7 years punishment was provided—Case of accused, in circumstances not falling within the prohibitory clause of S.497, Cr.P.C., he was released on bail.

2010 PCrLJ 940 KARACHI-HIGH-COURT-SINDH

Syed ZAHID HUSSAIN VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9 & 21—Possessing narcotics—Ball, refusal of—Prima facie, conditions laid down in subsection (1) of S.21 of Control of Narcotic Substances Act, 1997 were clearly made out—In the present case the secret information indicated that there was an imminent movement of narcotic substances and prima facie, in such circumstances the complainant could and did form an opinion that imminent action was necessary; and that any delay could enable the accused to either escape or otherwise deal with the narcotic substances in such a manner as would take them beyond the purview of the law enforcement agencies—Since there was no allegation of any enmity between the Anti Narcotic Force party which conducted the raid and searched the premises where accused was found with a large quantity of narcotics, there did not appear prima facie to be any basis for the claim put forward by accused that the drugs were foisted on accused and his brother—Prosecution had succeeded in making out a reasonable case which prima facie connected accused with the possession of the huge quantity of narcotic substances, which had constituted an offence under S.6 of Control of Narcotic Substances Act, 1997—Accused having failed to make out a case for grant of bail, his bail application was dismissed.

2010 PCrLJ 825 KARACHI-HIGH-COURT-SINDH

Haji INAYAT VS State

Ss. 6, 8 & 9(c)—Possessing and trafficking narcotics—Appreciation of evidence—In the present case what could be said at the most against accused persons was that they were transporting charas in the truck—Nothing had been proved that would show that accused were trafficking the charas i.e. engaged in the trade or the buying or selling of charas, which would bring the matter within the meaning of S.8 of Control of Narcotic Substances Act, 1997—When something was in or on board a moving conveyance (such as a truck), it was of course being transported from one place to another which was not enough by itself, question under S.6 of Control of Narcotic Substances Act, 1997 was whether the prohibited drug/substance was being transported by the accused—For purpose of S.6 of Control of Narcotic Substances Act, 1997 and in the specific context of conveyance, accused could be said to have possession of prohibited drugs which were in or on board the conveyance—Accused must have knowledge of thing or substance which he was supposed to be in possession of—If such possession with knowledge was established then it could not be necessary also to establish that accused specifically had knowledge that the thing or substance that he possessed was a prohibited drug—Accused persons were not the owners of truck in question, but they were simply its driver and his helper—Charas itself was not lying in the truck in an open or easily accessible place, but was hidden in a secret compartment inside the body of the truck and that secret compartment was not pointed out or revealed by either of accused persons; it could not be said to have been established beyond reasonable doubt that accused knew or could be regarded as knowing that the charas was in or on board of the truck—Such facts could reasonably raise a suspicion and suspicion was not proof—Even the conclusion that the truck was in “exclusive possession” of accused persons was not accurate—No doubt accused were the only persons in the truck, when it was intercepted by the Excise Officer, but that did not automatically establish that the truck was in their exclusive possession, when the charas was placed in the secret compartment—Reasonable doubt existed as to whether accused could be regarded as having possession of the charas within the meaning of S.6 of the Control of Narcotic Substances Act, 1997 and whether accused could be regarded as transporting the charas within the meaning of said section—Accused, in circumstances, stood acquitted, impugned judgment was set aside and conviction and sentence of accused were quashed.

2010 PCrLJ 292 KARACHI-HIGH-COURT-SINDH

MUHAMMAD AJMAL KHAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 8, 9(c) & 25—Possession of narcotic—Bail, refusal of—All the prosecution witnesses had clearly stated during the investigation that accused was cleaner of the vehicle in which contraband narcotic was transported—Question as to associating the Police witnesses and non-associating the private witnesses, section 25 of Control of Narcotic Substances Act, 1997, had imposed bar that S.103, Cr.P.C. was not applicable in narcotic cases—Record had connected accused with the commission of the alleged offence—Counsel of accused having failed to make out a case for grant of bail, his bail application was dismissed.

2010 PCrLJ 164 KARACHI-HIGH-COURT-SINDH

JANTAN BIBI VS State

412—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(b)—Appeal against conviction recorded by Special Tribunal on admission of guilt by accused—Maintainability—Provisions of S.412, Cr. P. C. had not placed an absolute embargo on filing of such appeal–Impugned judgment had been passed by a Special Tribunal created under a special statute, but not by a High Court, Court of Session or Magistrate of First Class—Such appeal was maintainable.

2010 PCrLJ 164 KARACHI-HIGH-COURT-SINDH

JANTAN BIBI VS State

Ss. 6 & 9(b)—Criminal Procedure Code (V of 1898), S.412—Appreciation of evidence—89 capsules containing heroin powder weighing 145 grams gross and 134 grains net recovered from stomach of accused—Conviction of accused and awarding of sentence of one year’s rigorous imprisonment—Appeal by mother of accused seeking reduction of such sentence or his release on parole—Validity—Trial Court had already taken a very lenient view by awarding accused such lesser sentence—Accused was involved in most heinous crime of trafficking of heroin powder, which could be treated as crime against humanity—Accused did not deserve to be released on parole—Accused had immediately accepted his guilt and such was his first offence—Accused must suffer some retribution from his such act—High Court dismissed appeal in circumstances.

2010 PCrLJ 86 KARACHI-HIGH-COURT-SINDH

ATTAULLAH VS State

Ss. 6/9(c)—Appreciation of evidence—Alleged lacuna in the evidence of Investigating Officer, could not be a material to reflect doubt on the case of prosecution—Investigating Officer had supported the prosecution case, while other witnesses had deposed on factual position, which had not been shaken in the cross-examination—No enmity was brought on record—Recovery of the Charas and its positive test was available on record—Charas had been recovered from the truck in question—Plea that the link of accused with the truck in the capacity as owner or the driver, had not been established, was not a legal requirement; as the case was to be decided on the basis of facts which had come on record, which had been done through implicating evidence.

2010 MLD 1908 KARACHI-HIGH-COURT-SINDH

ZIARAT KHAN VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c) & 51—Possession of narcotics—Bail, grant of—Further inquiry—Bail could not be granted in cases which fell within the exception to S.497, Cr. P. C. or S.51 of Control of Narcotic Substances Act, 1997, however, High Court while hearing the bail application, had to determine without going into deeper appreciation of evidence, whether a prima facie case had been made out for establishing that accused had been implicated in the case on the basis of mala fide or enmity and whether some prima facie evidence existed which could require further inquiry—High Court had the jurisdiction and authority to grant bail in the cases, where accused had made out a case of mala fide—Whenever accused was able to show by cogent reason, the possibility of his false involvement in the case it could be considered a good case for grant of bail—No firearm was recovered by the Police from accused who allegedly was taking heavy load of heroin and he had not tried to rush away when stopped by the Police and stopped at their signal—Prima facie, case subject to further inquiry, had been made out—Accused could have been implicated on the basis of his previous attitude and altercation with Police Authority—Accused was admitted to bail, in circumstances.

2010 MLD 1065 KARACHI-HIGH-COURT-SINDH

IRSHAD JATOI VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9—Possession of narcotic—Bail, refusal of—Number of pieces of Charas weighing 100 grams as samples for chemical analysis were sent to the Chemical Examiner whose report regarding such samples was positive–Accused had not placed on record any material to show enmity of the complainant with accused—Prima facie there was no question of false implication of accused in the crime and case was covered by prohibitory clause of S.497, Cr.P.C.—Accused having failed to make out a case for concession of bail, his bail application was dismissed—Trial Court, however, was directed to conclude the trial within three months by procuring the attendance of prosecution witnesses, who were Police Officials, even through coercive process.

2010 PTD 1104 Customs, Federal Excise and Sales Tax Appellate Tribunal

R.103(2)—Customs Agent (Licensing) Rule, 1971, Rr.19 & 21–Customs Act (IV of 1969), S.2(s), 156(1)(98)(89) & 178—Control of . Narcotic Substances Act (XXV of 1997), S.6, 7, 8 & 9—Custom Agent Licensing—Action in case of violation—Revocation of license on the ground of inefficiency—Licence of the appellant was suspended on 7-8-1998 by the authority, which had been. appealed against and it was on 9-8-2006, after the period of more than eight (8) years, the case was decided by the Licensing Authority—Department pleaded that there was no time of limitation for adjudication of such cases—Validity—Expeditious disposal of the cases was the requirement of the time, as well as was the mandate of every civilized law, because it determines the rights of the parties and save them from unnecessary inconvenience—Where no limitation for conclusion of any proceedings was fixed, such proceedings must be concluded, within a reasonable time—Where the law required issuance of notice, within the stipulated period, the Licensing Authority was required to complete the proceedings within a reasonable time—Where law required issuance of notice as a necessary corollary it excepted completion of proceedings on such notice, within the relevant time period—Merely, issuing a notice, the Licensing Authority was not absolved of his duty to complete the proceedings, within’ a reasonable time period—Issuance of notice did not give an unending period of time to complete the proceedings—Purpose of issuance of notice within certain time frame would be defeated, if the Licensing Authority, after having acted and issued a notice was allowed to sleep over the matter, or drag same along for almost eight years—Order passed after time period of almost eight years, could not be said to be in accordance with law—All the superstructure built subsequently, would suffer from the same infirmity—Such order would be liable to be set at naught on the ground of their having been passed against the express provisions of law—When the High Court exonerated the appellant from the charges levelled against him, the Licensing Authority should have clearly acted in good faith as no charge of misdeclaration/production of false documents, collusion and fraud had been proved against the appellant and revocation of his licence merely; on the grounds of his inefficiency could be a very harsh decision—Order of Licensing Authority was set aside by the Appellate Tribunal and case was remanded to the Licensing Authority for decision afresh by taking into consideration the issues raised by the appellant and then pass a speaking and judicious order by providing an ample opportunity of hearing to the appellant.

2009 SCMR 569 SUPREME-COURT

BADAR MUNIR VS State

Ss. 6, 7, 8 & 9—Criminal Procedure Code (V of 1898), Ss.423 & 439—Reappraisal of evidence—Converting acquittal into conviction—Revisional jurisdiction—Condonation of delay—Division Bench of High Court under suo motu action and in exercise of revisional jurisdiction, converted acquittal of accused into conviction—Validity—Though High Court had been conferred with power of appellate Court under S.423 Cr.P.C. while exercising powers of revision under S.439, Cr.P.C. but S.423(1), Cr.P.C. did not award power to revisional court to convict any acquitted person by taking suo motu action—Division Bench of High Court was not empowered to exercise suo motu power of revision in such manner so as to convert judgment of acquittal into a judgment of conviction—Although the appeal was barred by 31 days, yet in the interest of justice, Supreme Court condoned the delay, set aside conviction passed by High Court and acquitted the accused—Appeal was allowed.

2009 YLR 899 KARACHI-HIGH-COURT-SINDH

MUMTAZ HUSSAIN VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)—Bail, refusal of—Huge quantity of heroin powder was recovered from the luggage of accused while he was travelling abroad—fn view of punishment provided under S.9(c) of Control of Narcotic Substances Act, 1997, case against accused fell within the prohibitory clause of S. 497, Cr. P. C., being punishable with imprisonment for not less that 14 years—Deeper appreciation of evidence at the bail stage was not warranted—Accused having been charged with the heinous offence to smuggle lethal narcotics to a foreign country, no leniency could be shown to the accused—In absence of any ground for grant of bail, bail application of accused was rejected.

2009 YLR 167 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SHAHID VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9 & 51—Bail, grant of—Accused was behind the bars for the last about 7/8 months, but his case was still at preliminary stage as no charge had been framed against him so far—Case of accused was not likely to be concluded in the near future—Punishment provided for the alleged offence was seven years and fine, which did not fall within the prohibitory clause of S.51 of Control of Narcotic Substances Act, 1997—Case for grant of bail to accused having been made out, he was allowed bail.

2009 YLR 135 KARACHI-HIGH-COURT-SINDH

LIAQ SHAH VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Bail, grant of—Further inquiry—Co-Âaccused had been granted bail by the Special Court, whereas there was very little difference in the allegations against accused who had been granted bail and that of the accused applied for bail—Case of accused would fall on the borderline of offence under Ss.9(b) & 9(c) of Control of Narcotic Substances Act, 1997—Was yet to be seen whether the maximum punishment would be awarded to accused under the circumstances, which would need discussion and further inquiry—Evidentiary value of affidavit filed by the injured person, was yet to be determined—Case of accused being one of further inquiry, bail was allowed to him, in circumstances.

2009 PCrLJ 1425 KARACHI-HIGH-COURT-SINDH

WAZIR ALI VS State

561-A—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Quashing of proceedings—Application for—State Counsel had conceded that except for inadmissible confessional statement of co-accused made, to Police. after his arrest that applicants were also concerned in business of Charas recovered from him, no other evidence was against applicants—In absence of any evidence against the applicants, there was no probability of applicants being convicted of any offence; and no useful purpose would be served to conduct their trial—No useful purpose would be served to ask applicants to seek remedy first from the Trial Court as it had refused, even to grant bail to accused and had issued warrants against them—Proceedings against applicants/ accused persons, in circumstances, were quashed; they stood discharged.

2009 PCrLJ 1284 KARACHI-HIGH-COURT-SINDH

MUHAMMAD AZEEM VS State

Ss. 6, 7, 8 & 9(c)—Appreciation of evidence—Counsel for accused did not dispute the conviction of accused, but had prayed that sentence awarded to accused, could be reduced to that already undergone and the amount of fine could also be reduced—Accused was in custody for more than seven and half years inclusive the remission extended to him—Accused was a first offender and had shown his remorse and penitence as convict—Since accused had served substantive sentence of more than seven and half years including the remission, he deserved leniency–Maintaining conviction awarded to accused by the Trial Court, sentence of ten years awarded to him was reduced to one already undergone and amount of fine was also reduced from Rs.25,000 to Rs.5,000, accordingly.

2009 PCrLJ 1089 KARACHI-HIGH-COURT-SINDH

ZULQARNAIN SIKANDAR VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)—Bail, grant of—Further inquiry—Prosecution story as narrated in the F.I.R. itself did not inspire confidence—Was difficult to conceive that a person, who informed Anti-Narcotic Force regarding presence of narcotic substances in a house and then led them to such house, would in presence of one of the members of the raiding party place Charas in the open i.e. the lawn of the house; it was all the more unbelievable that such a person, would be allowed to walk away scot-free despite the fact that armed personnel of the force were not only posted inside the house and at the very spot where the bag was placed, but the house was also encircled by them—No recovery had been made from the person or the place of accused—Co-accused, who was said to have admitted before the Investigating Officer that he along with other co-accused brought the Charas had been granted bail—Investigation in the case had been concluded and final challan had been submitted—Charas had not been recovered from the actual possession of accused, who allegedly escaped from the scene—As it was yet to be ascertained as to whether accused was actually in possession of the Charas, case against him was of further inquiry—Statement of the constable against him was to be considered by the Trial Court—Accused was entitled to the benefit of reasonable grounds and doubts and bail in the facts and circumstances of the case could not be refused to accused, merely because the offence shown in the F.I.R. was punishable with death—Accused was admitted to bail, in circumstances.

2009 PCrLJ 315 KARACHI-HIGH-COURT-SINDH

SOHAIL alias GANG VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)—Bail, grant of—Further inquiry—F.I.R., showed that accused was selling Charas, but no purchaser was present at the alleged time of sale of the Charas, because no statement of the purchaser seemed to have been recorded by the Investigating Officer,—Allegation contained in the F.I.R. that accused was selling Charas, seemed to be a vague and fallacious statement—Nowhere in the F.I.R., the complainant had stated that he knew accused previously—Accused had been arrested after about more than six months from the date of alleged incident—Investigating Officer was obliged to get the identification parade of accused held before Magistrate from the other witnesses who were allegedly present at the time of arrest of accused, but no identification parade had been held, which had badly reflected on the case of the prosecution—Samples had also been sent to Chemical Examiner after inordinate delay without just and sufficient explanation—Case of further inquiry having been made out accused was entitled to bail—Accused was admitted to bail, in circumstances.

2009 PCrLJ 232 KARACHI-HIGH-COURT-SINDH

COLLECTOR OF CUSTOMS (PREVENTIVE), GOVERNMENT OF PAKISTAN, CUSTOM HOUSE, KARACHI VS SAJJAD MUHAMMAD JAFFER

Ss. 6, 9, 34, 35 & 36—Criminal Procedure Code (V of 1898), Ss.417 & 265-K—Appeal against acquittal—Special Court allowing application of accused persons filed under S.265-K, Cr.P.C. having acquitted them, Authority had filed appeal against said acquittal—Consignment in question was sent to Government Laboratory for examination and report of the laboratory was in negative—Consignment was then sent to Research Institute of Chemistry, which was not a Notified Laboratory within the meaning of S.34 of Control of Narcotic Substances Act, 1997—Validity—Government Laboratory had already opined that consignment did not contain any narcotic substance—Second Laboratory was not a notified laboratory and its Research Officer who gave the report, had not been notified as an official to test the material of narcotic substances under Control of Narcotic Substances Act, 1997—Laboratory and the officer who gave the report did not come within the ambit of sections 34 to 36 of Control of Narcotic Substances Act, 1997—Such report, in circumstances, did not fulfil the requirements of law—No illegality or irregularity being in order of acquittal of accused, same did not require any interference.

2009 MLD 1151 KARACHI-HIGH-COURT-SINDH

ABDUL WAHID VS State

S.497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Bail, grant of—Further inquiry—Out of 1500 grams of charas allegedly recovered from accused in the shape of pieces, only 200 grams were taken out of the entire recovered material for the purpose of chemical analysis; however, it was not mentioned whether the sample was taken from each piece or only from one of the pieces—No conclusive finding, in circumstances, could be recorded that all the pieces were of contraband narcotics and proper and final finding was yet to be recorded at the trial—Number of pieces had not been mentioned either in the F.I.R. or in the mashirnama—Sample was sent to chemical laboratory, with delay of nine days which had created doubt in the case of prosecution—Since out of the entire contraband allegedly recovered from accused only 200 grams were sealed separately for sending it to Chemical Analyzer, case against accused at the most would fall under S.9(b) of Control of Narcotic Substances Act, 1997, which carried punishment for 7 years—Case of accused fell within the purview of subsection (2) of S.497, Cr.P.C.—Accused was granted bail, in circumstances.

2009 MLD 1059 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SALEEM KHAN VS State

Ss.497 & 561-A—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)- Application for grant of bail—Conversion of bail application into application under S.561-A, Cr.P.C.—Prosecution case was that after a secret information Anti-Narcotic force apprehended main accused, who was said to have been standing with accused and other co-accused in the departure lounge of the airport—No connection had been shown,. against accused with the main accused or co-accused and being an employee of Civil Aviation Authority, he was standing with them—Question regarding the clearing of the suit case from the customs did not arise as the main accused was leaving the country and had to deposit the suitcase at the counter of the concerned airline only; requiring no customs clearance—No prima facie, case, in circumstances, was made out against accused to connect him with the case—Prosecution had failed to cite any witness to show that accused had conscious knowledge that main accused was in possession of the contraband in his suitcase or accused tried to facilitate him in any manner—Bail application, in circumstances, was converted into application under S.561-A, Cr.P.C. as in the case, the proceedings against accused would be futile as there was no likelihood of conviction of accused on the basis of material available with the prosecution—Proceedings pending against accused in the case, were quashed and accused was ordered to be released from jail.

2009 MLD 667 KARACHI-HIGH-COURT-SINDH

SHAFIQUR REHMAN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Bail, refusal of–6.25 Kgs of charas Garda was alleged to have been recovered from accused; it would not appeal to mind that such a huge quantity of narcotics could be foisted against accused persons by the Police without previous enmity between the Police, witnesses and accused for false implication–Witnesses were yet to be examined by the prosecution whose presence was shown at the time of recovery—Delay, if any, in sending the narcotics for chemical examination, would not, in any way, prejudice the case of accused persons, as neither any mala fide act had been alleged against them nor same could be inferred—-Delay per se should not prejudice case of accused persons—Considering that huge quantity of charas had been recovered from accused and the prosecution had yet to produce the evidence, no case of bail was made out.

2009 MLD 133 KARACHI-HIGH-COURT-SINDH

DILDAR ALI VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c), 25 & 51—Police Order (22 of 2002), Art. 18(4)—Bail, grant of—Further inquiry—Chemical Analyzer’s report had revealed that net weight of Charas, which was 130 grams was received by his office after more than two months of alleged incident—Presumption could be taken that sample was tampered with some mala fide intention—No private person from the locality was associated as Mashir in the case—Provisions of S.103, Cr.P.C. though would not be applicable in view of S.25 of Control of Narcotic Substances Act, 1997, but each case was to be seen on its own merits, nature and circumstances—Inspector himself registered the case and investigated same—Such act of Inspector was a violation of Article 18(4) of the Police Order, 2002—Concession of bail was extended to accused as his case was that of further inquiry.

2009 YLR 598 ISLAMABAD

ISMAIL MICHAEL VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9(c), 14 & 15—Bail, refusal of—Narcotics was recovered from the shoes, which were purchased from a company—Owner along with manager of said company had identified accused on seeing his photograph, being the person, who purchased shoes from them—Deeper appreciation of evidence was not allowed at bail stage and any tentative assessment of material collected by the prosecution during investigation was to be made—Prima facie sufficient material was available on record to believe involvement of accused in the case, wherein offence was punishable with death or life imprisonment and fell within the ambit of prohibitory clause of S.497, Cr. P. C. —Challan had already been submitted in the Trial Court, where trial was likely to commence soon—Bail was declined in circumstances.

2008 SCMR 825 SUPREME-COURT

SURRAYA BIBI VS State

Ss. 6/9(c)—Criminal Procedure Code (V of 1898), S.103—Constitution of Pakistan (1973), Art.185(3)—Reappraisal of evidence—Recovery of 6 Kgs. Charas—Police officials as prosecution witnesses—Humanitarian grounds—Accused was convicted and sentenced to 10 years imprisonment by Trial Court but High Court keeping in view that the accused was a woman, reduced her sentence to 5 years imprisonment—Plea raised by the accused was that the prosecution did not produce any independent witness and only police officials were produced—Further plea raised by the accused was that she was a lady having five children and was on the family way—Validity—Police witnesses were as good as civilian witnesses unless it was established on record that police witness, who appeared against the accused, had personal motive/mala fides to involve him/her in the commission of offence—Accused failed to point out enmity with police, therefore, no case was made out—Supreme Court observed that in cases pertaining to offences of narcotics, the drug peddlers, to achieve their nefarious objects, had adopted obnoxious device by engaging womenfolk and children and through them crimes were being committed and ultimately mercy was sought against such accused on humanitarian grounds—Supreme Court directed that to curb such menace, Courts were required to award adequate punishment instead of showing sympathy on the ground of accused being woman or child, otherwise the actual accused involved in such heinous crime, which was against the society would be encouraged and carriers would also be freely available to promote the crime with the hope that after spending small period in the prison, they would be set at liberty despite of committing heinous crime of drug trafficking—Supreme Court declined to interfere with the sentence of 5 years imprisonment awarded by High Court—Leave to appeal was refused.

2008 PCrLJ 348 PESHAWAR-HIGH-COURT

SHAUKAT HAYAT VS State

2008 YLR 1987 LAHORE-HIGH-COURT-LAHORE

HAMEED IQBAL VS State

Ss.6 & 9(b)—Appreciation of evidence–Members of the raiding party had deposed on the same lines as indicated in the F.I.K. and proved the recovery of one Kg of opium from the accused—Report of Chemical Examiner was positive for opium, which was an intoxicant—Police witnesses in such cases were as competent as members of general public—Prosecution evidence did not suffer from any such inconsistency or contradiction so as to strike down the prosecution story from its very foundation–Prosecution evidence inspired confidence—Defence version of the accused on the other hand did not inspire any confidence—Accused had not produced any evidence to substantiate his plea, which indicated that he did not possess any evidence in support of his version and the presumption of law of evidence would certainly go against him—Conviction of accused was maintained, but his sentence of imprisonment was reduced to that already undergone by him in circumstances.

2008 YLR 1978 LAHORE-HIGH-COURT-LAHORE

IFTIKHAR AHMAD VS State

Ss.6/9 (b)—Appreciation of evidence—Benefit of doubt—Recovery of 208 grams of heroin from one accused and 250 grams of opium along with 160 grams of heroin from other accused was allegedly effected in the case—Possibility of planting the said narcotics on the accused could not be eliminated—People of the vicinity rarely appear as defence witnesses in such like cases, but in the present case defence witnesses had appeared and supported the defence version and the plea taken by the accused while in juxta position there were only the official witnesses—Police was infamous for planting narcotics against its adversaries in quantities shown as recoveries in the case—Testimony of public witnesses was given weight in circumstances and accused were acquitted on benefit of doubt accordingly.

2008 YLR 1601 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IJAZ VS State

Ss. 6 & 9(c)—Appreciation of evidence—One of co-accused who was father of accused, was declared as innocent though it was alleged that he had thrown away the Charas and had made good his escape along with accused and was not apprehended at the spot unlike another co-Âaccused—No reason had been given for separating the case of co-accused/father of accused—Accused was also not apprehended at the spot and’ the story of decamping was in the same tone as said co-accused who had been acquitted—Besides the police witnesses, none appeared to affirm the throwing away of the Charas by accused at the time when other co-accused was apprehended—Possibility that accused was not involved in the trafficking of the Charas as co-accused, was strong and so was his false involvement—Case .against accused having not fully been established, he was acquitted of the charge.

2008 YLR 1224 LAHORE-HIGH-COURT-LAHORE

FARZAND ALI VS State

Ss. 6/9—Appreciation of evidence—Sentence, reduction in—No mala fides had been alleged in the case which stood established against the accused beyond doubt and his conviction was maintained—However, in view of the safe administration of criminal justice sentence of accused was reduced from five years’ R.I. to three years’ R.I. with reduction in fine also—Appeal was disposed of accordingly.

2008 YLR 693 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD MUNIR VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Bail, grant of—Further inquiry—Accused had no criminal history to his credit as he was not involved in any other similar case—Alleged recovered “Garda Charas” was not narcotic in its entirety and the chemical examiner had not mentioned percentage of narcotic substance, therein, which had made the case of accused that of further inquiry—“Garda” was dust and its meagre quantity allegedly recovered from accused would not make him a trafficker/peddler of contraband—Offence charged was not covered by prohibitory clause of S.497, Cr. P. C. and in absence of any allegation of abscondence or tampering with prosecution evidence by accused, bail was not to be withheld as of punishment, especially when inspite of submission of challan, no prosecution witness had been examined diminishing the chances of conclusion of the trial in the near future—Accused would face the sentence, if ultimately convicted by the Trial Court and for the time being his further detention would not advance prosecution case any more—Accused having made out case for grant of bail, he was admitted to bail, in circumstances.

2008 PCrLJ 550 LAHORE-HIGH-COURT-LAHORE

KHURAM SHAHZAD VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9, 25 & 51—Bail, refusal of—Factually 3.5 kilograms opium powder was recovered from the possession of accused on his personal search by the complainant and other officials out of which 50 grams was separated and sent to the Chemical Examiner for analysis—Report of Chemical Examiner had shown that sample sent for analysis tested positive for opium as well as for alkaloid–Keeping in view the report of the Chemical Examiner as well as the quantum of narcotic recovered from accused, it could be safely said that the offence attracted the provisions of Ss.6 & 9 of the Control of Narcotic Substances Act,1997—Provisions of S.103, Cr.P.C. had been expressly excluded from applicability in cases of narcotic substances by virtue of S.25 of Control of Narcotic Substances Act, 1997—Non-compliance with the provisions of S.103, Cr.P.C., thus, could not be considered a valid ground for extending the concession of bail to accused—Accused had not been able to provide any legal justification for keeping such a huge quantity of narcotic in his possession—Bar contained in S.51 of Control of Narcotic Substances Act, 1997 to the grant of bail was attracted with full vigour in the case—Concession of post-arrest bail could not be extended to accused as prima facie, ample incriminating material was available on record to connect accused with crime alleged to have been committed by him.

2008 PLD 159 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SABIR VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(b) & 51—Bail, refusal of—Order sheet of the Trial Court had shown that after framing of charge, prosecution was directed to adduce its evidence, but on three occasions evidence of prosecution was not available–Subsequently two prosecution witnesses were present, but their statements could not be recorded in view of request for adjournment made by accused—On various dates prosecution witnesses were present, but their statements could not be recorded as for various reasons adjournments were sought by the accused—Said orders of the Trial Court had shown that blame of delay could not be attributed to the prosecution, whereas conduct of accused was also blameworthy and bail application could not be allowed on ground of delay—Even otherwise after framing of charge and at stage of recording of evidence, normally bail was not granted in narcotics cases—Section 497 Cr.P.C. required to be read in conjunction with S.51 of Control of Narcotic Substances Act, 1997—Bail application was dismissed in circumstances.

2008 PLD 522 KARACHI-HIGH-COURT-SINDH

IMTIAZ JAWED VS State

497(1), first proviso—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)—Bail on medical ground, grant of—Grant or rejection of bail was a discretionary relief, but such discretion had to be exercised fairly and judiciously—Doctors, in the present case, were unanimous on the point of ailment of accused—Board of Doctors had opined that the accused was suffering from heart disease and they had warned about the risk factor—Accused was also suffering from Hapatitis `C’- which disease apart from being life threatening was contagious as well and could spread such disease amongst the other inmates of the jail, who were crowded in’ barracks, as stated by the Chief Medical Officer of the jail concerned—Accused was admitted to bail on medical ground alone in circumstances.

2008 YLR 2101 KARACHI-HIGH-COURT-SINDH

MUHAMMAD YASIN VS State

S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Bail, grant of—State counsel, despite stating that accused had better case on merits and that the case was of further inquiry, had suggested that accused should withdraw his bail application and should file a fresh application before the Trial Court on merits—Validity—Said suggestion of State Counsel would be harsh as accused, on a technical ground, was directed to withdraw bail application, when the case of accused was better on merits—Less than 1 K.G. of allegedly recovered Charas was sent to Chemical Examiner as sample—Accused was not driving the vehicle from which Charas in question was recovered and no driving licence had been recovered from the accused—Accused was taken into custody while he was standing at a Bus stop and he was falsely involved in the case—Case of accused was almost on similar grounds as those of co-accused who had been bailed out by the High Court—Accused, in circumstances was entitled for grant of bail on the principle of consistency—Accused was admitted to bail, in circumstances.

2008 YLR 2016 KARACHI-HIGH-COURT-SINDH

MUHAMMAD ARSHAD VS State

497—Control of Narcotic Sub-stances Act (XXV of 1997), Ss. 6 & 9—Bail, refusal of—Huge quantity of 79, K. G. Charas was recovered from the secret cavities of vehicle which was driven by accused and there was no probability of foisting such huge quantity on the accused—As vehicle in question was without any passenger, there was no question to take any passenger as a Mashir—Bail way refused in circumstances.

2008 PLD 14 KARACHI-HIGH-COURT-SINDH

PERVAIZ AHMED VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(b) & 25—Bail, grant of—Further inquiry—Charas in question was found in the shape of five separate slabs/patties, but only one slab/patti was sent for the chemical analysis report—No expert opinion could be available regarding remaining four slabs/patties, as to whether those contained any narcotic substance or not—Since only one slab/patti of charas was separately sent for the chemical analysis report, which weighed one kilogram, the chemical report would be conclusive only to the extent of one kilogram of charas—Question whether the entire recovered substance was covered by the definition of narcotics, would be properly determined at the stage of trial after sufficient evidence was brought on record—Tentative assessment showed that chemical analysis report to the extent of only one slab/patti weighing one kilogram, prima facie would constitute an offence under S.9(b) Control of Narcotic Substances Act, 1997, which was punishable to the extent of seven years—Place where incident allegedly occurred was situated in the midst of the city which was a thickly-populated area, but no private person from the locality was associated as witness/mashir in the case—Section 25 Control of Narcotic Substances Act,1997, provided that provisions S.103, Cr.P.C. would not be applicable, but still each case had to be seen in its true perspective with regard to the background and surrounding circumstances—In the present case, as a natural circumstance , some persons from the locality, must have been available who had witnessed the incident, but those were not associated-Case of accused calling for further inquiry under S.497(2), Cr.P.C., he was admitted to bail .

2008 PCrLJ 1540 KARACHI-HIGH-COURT-SINDH

JAFFAR VS State

Ss. 6/9(c)—Appreciation of evidence—Sixty-six capsules containing 750 grams of heroin were recovered from the stomach of accused—Accused had admitted his guilt at the time of framing the charge and had pleaded for mercy stating that this was his first offence and his family members including his old mother and kids depended upon him—Though said contention of accused was not supported by the record, yet he had regretted his involvement in the offence and had expressed remorse—Judgment passed by Trial Court was legal, proper and in accordance with law and did not suffer from any illegality and infirmity—Conviction and sentence of two and a half years’ R.I. of accused were maintained, as he had already been treated leniently by Trial Court in the matter of substantive sentence—However, the fine of accused was reduced from Rs.40,000 to Rs.10,000 in circumstances.

2008 PCrLJ 1333 KARACHI-HIGH-COURT-SINDH

ABDUL NABI VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9(c) & 51—Bail, grant of—Further inquiry–Accused was in jail for more than one year without trial, even charge had not been framed; the Charas was allegedly recovered from the folds of his Shalwar weighing 2 Kgs., which was not possible—Only 20 grams of Charas were sent for Chemical Examination, as such presumption could be drawn that only that much quantity had been recovered from accused—For granting benefit of doubt to accused, it was not necessary that there should be many circumstances creating doubts, but if a simple circumstance would create reasonable doubt in a prudent mind about the guilt of accused, then he would be entitled to such benefit not as a matter of grace and concession, but as a matter of right—Delay in each case was to be judged and weighed on its own merits—Inordinate delay, if not explained, would amount to abuse of process of law even in cases of capital punishment where prosecution was loath in submitting the challan, slow in producing witnesses, failed to produce accused without any justification or delaying tactics used by any person other than accused including complainant—If delay was so shocking and scandalous, it would amount to abuse of process of law—Even where the directions of the superior courts were not complied with without any justifiable reason, same could furnish a good ground for bail—Fair and expeditious trial was the right of an accused—In case where accused was able to show that unexplained delay was on the part of prosecution to proceed with the case and delay in conclusion of the trial was unexplained, court could enlarge accused on bail—Accused in the present case, was languishing in jail for more than one year—Quantity of narcotics could be given importance only when same was linked with accused by cogent evidence—Ban contained in S.51 of Control of Narcotic Substances Act, 1997 would be attracted only when reasonable grounds were found for believing accused guilty of the alleged offence—High Court was competent to grant bail in appropriate cases notwithstanding the provisions of S.51 of Control of Narcotic Substances Act, 1997—No reasonable ground being available for believing accused guilty of offence and case requiring further inquiry into his guilt, accused was admitted to bail.

2008 PCrLJ 1329 KARACHI-HIGH-COURT-SINDH

ABDUL MAJEED VS State

497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(b)—Bail, grant of—Further inquiry—Alleged recovery of 79 capsules of heroin from accused four days after his arrest—Effect—Accused remained in custody prior to the recovery, but during that period no confessional statement of accused was recorded—Case of accused required further inquiry—Accused was no more required by the police for investigation purpose—Bail was granted to accused, in circumstances.

2008 MLD 1426 KARACHI-HIGH-COURT-SINDH

ABDUL MANAN VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Bail, refusal of—Allegation against the accused was that while he was driving a car, upon searching by the Excise Police, 132 Kgs of Charas in 136 rods was recovered from the concealed cavities under the dashboard of the said vehicle—Co accused was also sitting on the adjacent seat of the car—Contention of the applicant/accused was that bail having been granted to the co-accused, in view of the rule of consistency he was also entitled to bail and that since the samples were not taken from all the recovered rods for chemical analysis the accused deserved grant of bail—Validity—Held, role assigned to the applicant in the case was distinguishable from that of the co-accused, who had been granted bail by High Court and as such applicant/accused could not claim benefit of bail on the rule of consistency—Taking samples from a few rods and leaving other rods could not help the accused at bail stage, as the recovered contraband was available with the Investigating Officer–No enmity had been shown with the Excise Staff for false implication of the accused—Bail was declined by High Court.

2008 MLD 1061 KARACHI-HIGH-COURT-SINDH

AHMED HUSSAIN VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 12, 13, 14, 15, 19 & 37—Bail, grant of—Challan was submitted after about 20 days from occurrence and charge was framed after lapse of four years of incident—No progress was made in the trial of case—Accused could not be kept behind the bars for an indefinite period for no fault of his own in delay of the trial of case—Accused was granted bail, in circumstances.

2008 PLD 97 KARACHI-HIGH-COURT-SINDH

ABDUL KHALIQ VS State

497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Bail, grant of—Recovery of Charas in shape of rods from vehicle—Submission of challan in court after 20 days of registration of F.I.R. without explaining such delay—Prosecution alleged accused to be driver of vehicle, while he did not know driving—Mushirnama did not show that samples of Charas were sealed and signed at the spot—From whole Charas recovered in shape of rods, only 9 samples had been taken and not from each rod—Total weight of samples taken became 90 grams, which fell within definition of Ss.6 & 9(a) of Control of Substances Act, 1997 carrying punishment for two years—Accused was granted bail in circumstances.

2007 SCMR 393 SUPREME-COURT

MUHAMMAD YOUNAS and others VS Mst. PERVEEN alias MANO

—Ss. 6, 7 & 9—Criminal Procedure Code (V of 1898), S.173—Narcotic Substance, recovery of—Accused found to be innocent during investigation–Validity–Competent Court vested with jurisdiction either to accept or not to accept police report recommen

2007 SCMR 393 SUPREME-COURT

MUHAMMAD YOUNAS and others VS Mst. PERVEEN alias MANO

—Ss. 6, 9 & 9(c)—Criminal Procedure Code (V of 1898), S.173—Constitution of Pakistan (1973), Arts.199 & 185(3)—Constitutional petition before High Court–Quashing of F.I.R.—Charas and Opium, recovery of—F.I.R., registration of—Superintendent

2007 PLD 155 QUETTA-HIGH-COURT-BALOCHISTAN

State VS FAZAL MUHAMMAD

—-Ss. 6, 9 & 2(t)—Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemical, Equipment and Materials) Rules; 2001—Percentage of morphine present in poppy capsules or poppy straw not to be necessarily proved by prosecution—C

2007 PCRLJ 514 PESHAWAR-HIGH-COURT

MUHAMMAD HASSAN KHAN VS State

—S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Dangerous Drugs Act (II of 1930), Ss.8 & 14—Bail, grant of—Further inquiry—Complainant/Investigating Officer, despite lapse of more than one and a half month, had failed to

2007 YLR 1026 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ISHAQUE VS State

—-S. 497—-Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9—Bail, refusal of—Contention of accused was that a quantity of 250 grams of `Post’ was recovered from him which was sent to Chemical Examiner who reported that it contained 0.081

2007 PCRLJ 873 LAHORE-HIGH-COURT-LAHORE

State VS MUNAWAR HUSSAIN

–S. 516-A—Control of Narcotic Substances Act (XXV of 1997), Ss.6/7/8/9(c)/14/15/16—Entire case property was directed by Trial Court to be produced before the Court—Validity—Poppy straw weighing 9013. Kgs. allegedly recovered from accused was lyin

2007 YLR 3021 LAHORE-HIGH-COURT-LAHORE

Mst. FAZEELAT BIBI VS State

—-Ss. 6, 9 & 2(d)—Prohibition (EnforceÂment of Hadd) Order (4 of 1979), Art.4—Application and scope—Bhang/ hemp, recovery of—When Bhang/hemp is referred to without specification of any particular part of the cannabias plant and without the othe

2007 YLR 3021 LAHORE-HIGH-COURT-LAHORE

Mst. FAZEELAT BIBI VS State

—S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9 & 2(d)—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4—Bail, grant of—F.I.R. memorandum of recovery and the Chemical Examiner’s report did not specify as to whether the s

2007 YLR 1601 KARACHI-HIGH-COURT-SINDH

NAZAR HUSSAIN VS State

—S.6—Prohibition of possession of narcotic drugs etc.—“Possess”—Connotation-Word “possess” appearing in S.6 of the Control of Narcotic Substances Act, 1997, connotes some sort of knowledge’ about the things possessed—Accused must be knowingly in

2007 YLR 1601 KARACHI-HIGH-COURT-SINDH

NAZAR HUSSAIN VS State

—S.6—Prohibition of possession of narcotic drugs etc.—Possession can be joint—No condition or qualification has been made in S.6 of the Control of Narcotic Substances Act, 1997 that possession should be an exclusive one—Possession, therefore, ca

2007 YLR 1601 KARACHI-HIGH-COURT-SINDH

NAZAR HUSSAIN VS State

—Ss.9(c), 6 & 29—Appreciation of evidence—Prosecution witnesses were unanimous on salient features and material aspects of the case, who had categorically stated that the accused was the Driver of the Truck from secret cavity of which 560 Kg of “Cha

2007 YLR 1022 KARACHI-HIGH-COURT-SINDH

MUHAMMAD NOOR VS State

—S. 497, 54, 59 & 156(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9, 21 & 22—Bail, refusal of—Counsel for accused had contended that complainant who searched accused and allegedly recovered property from them being A.S.-I. of police

2007 PCRLJ 1103 KARACHI-HIGH-COURT-SINDH

MUHAMMAD FAROOQ KHAN VS State

—S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Bail, grant of—Further inquiry—Accused had levelled allegation of enmity against complainant/D.S.P. under whose jurisdiction police station concerned was situated—In view

2007 PCRLJ 493 KARACHI-HIGH-COURT-SINDH

State VS KASHIF ALI

—S. 497(5)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9 & 25–Bail, cancellation of—Bail was granted to accused-on the ground that prosecution had failed to arrange private witnesses to act as Mashirs—Validity—Spy information

2007 PLD 238 KARACHI-HIGH-COURT-SINDH

THE STATE/ANTI-NARCOTICS FORCE through Deputy Director (Law), Karachi VS MUHAMMAD IRSHAD

—Ss. 6, 9(c) & 48—Criminal Procedure Code (V of 1898), Ss.516-A & 537—Destruction of recovered property—Procedure—Presence of accused at the time of destruction of recovered property—Necessity—Defects in destruction of property—Effect—Wh

2007 MLD 1846 KARACHI-HIGH-COURT-SINDH

MUHAMMAD NAWAZ VS State

—S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Bail, grant of—Out of 10 Kgs. of Charas contained in 10 bags of 1 Kg each, which were allegedly recovered from accused, only one Kg. Charas was sent for chemical examination and no

2007 PLD 110 KARACHI-HIGH-COURT-SINDH

AHUDHA MANLIKI VS State

—Ss. 6, 7, 8 & 9—Drug trafficking, smuggling and normal possession of drugs—Drug trafficking and smuggling from Pakistan to another country—Criteria and yardstick for examining the cases of normal possession or transportation of narcotic drugs, sh

2007 YLR 3125 KARACHI-HIGH-COURT-SINDH

SHAHNAZ ANWAR VS BABAR

—S.497—Penal Code (XLV of 1860), S.420—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—West Pakistan Arms Ordinance (XX of 1965), S.13(4)—Constitution of Pakistan (1973), Art.199—Constitutional petition—Bail, grant of—Arrest of

2007 YLR 3096 KARACHI-HIGH-COURT-SINDH

BILAL VS State

—-S.6—Prohibition of possession of narcotic drugs etc.—Possession must be conscious possession—Word “possess” appearing in S.6 of the Control of Narcotic Substances Act, 1997, connotes conscious possession—Knowledge is an essential ingredient of

2007 YLR 3096 KARACHI-HIGH-COURT-SINDH

BILAL VS State

—-S.6—Prohibition of possession of narcotic drugs etc.—Possession can be joint with two or more persons—No condition or qualification having been made in S.6 of the Control of Narcotic Substances Act, 1997, that the possession should be an exclusi

2007 YLR 3096 KARACHI-HIGH-COURT-SINDH

BILAL VS State

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2006 SCMR 468 SUPREME-COURT

Sh. MUHAMMAD TASLEEM VS State

—S. 497-Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9(c), 14, 15 & 16—Constitution of Pakistan (1973), Art.185(3)—Bail, refusal of—Investigating agency, after carrying out investigation in the matter, had placed the name of the a

2006 YLR 2826 LAHORE-HIGH-COURT-LAHORE

IFTIKHAR AHMED alias ALI VS State

–Ss. 6, 9, 36(2) (1) & 47—Control of Narcotic Substances (Government Analysts) Rules 2001, R.6—Criminal Procedure Code (V of 1898), S.510—Report of Chemical Examiner —Evidenciary value—Scope—Non-observance of R.6 of Control of Narcotic Substa

2006 YLR 1234 LAHORE-HIGH-COURT-LAHORE

UMAR HAYAT VS State

–S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9—Bail, grant of—Ziminis and statements of witnesses under S.161, Cr.P.C. which were shown to have been recorded by Investigating Officer concerned, in fact were not in his handwriti

2006 YLR 1217 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD YASEEN VS State

–Ss. 6, 9 & 15—Criminal Procedure Code (V of 1898), S.265-K—Application under S.265-K, Cr.P.C. for acquittal—Trial Court had misread the F.I.R. as it was nowhere given in F.I.R. that Charas in question was purchased from the accused—Accused Wrigh

2006 MLD 1596 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SHAFI KHAN VS State

–Ss. 9(c) & 6—Sentence, reduction in—Convictions of accused having not been contested the same were upheld—Sentences of each accused were, however, reduced in view of the principle laid down in 2004, PCr.LJ 1424—Sentences of death and imprisonmen

2006 MLD 1048 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IQBAL VS State

–S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9—Bail, grant of–Further inquiry—Investigation in case had not been completed because Investigating Officer who had gone on training, had taken away case file with him—Investig

2006 PLD 780 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD IDREES VS State

—Ss. 6, 9 & 25—Criminal Procedure Code (V of 1898), Ss.103 & 156(1)(2)—Appreciation of evidence—Investigation was conducted by C.I.A. officials—Non-compliance of S.156(1)(2), Cr.P.C.—Effect—On secret information, C.I.A. official/complainant

2006 PCRLJ 1251 KARACHI-HIGH-COURT-SINDH

QADIR BAKHSH VS State

—Ss. 497 & 188—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 12, 13, 14, 15, 19 & 37—Qanun-e-Shahadat (10 of 1984), Art.38—Bail, grant of—Captain of foreign ship called personnel of Anti-Narcotic Force, at his ship and handed

2005 PLD 440 LAHORE-HIGH-COURT-LAHORE

KHAIR-UL-REHMAN VS THE STATE and others

—-S. 2(s))(t)(w)(v), 4, 5, 6, 7, 8 & 9—Poast or Doda, being apart of a poppy plant, falls within the definition of “opium” and, therefore, the same has to be treated and accepted as “narcotic drug” for the purpose of S.2(s), Control of Narcotic Substa

2005 YLR 2321 LAHORE-HIGH-COURT-LAHORE

SHERZADA KHAN VS State

—-Ss. 6 & 9—Sentence, reduction in—Mitigating circumstance—Accused claimed himself to be an ailing person of advanced age—Huge quantity of heroin was recovered from the active possession of the accused, who was not of an advanced age to create a

2005 YLR 1769 LAHORE-HIGH-COURT-LAHORE

ASMAT ULLAH alias BILLA PATHAN VS State

—S. 426—Control of Narcotic Substances Act (XXV of 1997), Ss. 6 & 9(c)–ÂSuspension of conviction and sentence–ÂPetitioner had already undergone sentence of imprisonment for a period of five years as was obvious from the report of Superintendent of

2005 YLR 742 LAHORE-HIGH-COURT-LAHORE

REHMAT ALI VS State

—S. 540—Control of Narcotic Substances Act (XXV of 1997), Ss. 36(2) & 6/9–ÂSummoning of Chemical Examiner—Trial Court had dismissed the application of the accused for summoning the Chemical Examiner as Court witness to elucidate his report, with t

2005 YLR 652 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD SUGHEER VS THE STATE

–S.497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)—Bail, grant of—Further inquiry–ÂAccused had been declared innocent in police investigation and had been placed in Column No. 2 of challan report—Nothing was on record to t

2005 PCRLJ 574 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD RIAZ VS State

—S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Bail, grant of—Allegation against accused was that he was found in possession of 200 grams of indigenous charas — Maximum sentence in case would not fall under prohibitory clause a

2005 PCRLJ 207 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD BILAL VS State

—S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Bail, grant of—Further inquiry—Case of prosecution was that a bag containing “Posst” weighing 50 Kgs. was recovered from accused who allegedly admitted to have carried said bag

2005 MLD 1056 LAHORE-HIGH-COURT-LAHORE

SHAH NAWAZ VS State

–S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9—Bail, grant of—Accused had no criminal history and was never involved in any criminal case of like nature—Accused also did not have the notoriety as drug pusher—Case against accuse

2005 PLD 93 LAHORE-HIGH-COURT-LAHORE

Messrs GHANI HERBAL PHARMA LABORATORIES VS SECRETARY

—R. 3(1)—Dangerous Drugs Act (II of 1930), S. 6—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7 & 78(1)(2)—Control of Narcotic Substances (Regulations of Drugs of Abuse, Controlled Chemicals, Equipment and Material) Rules, 2001, R.2(iv)-

2004 PCRLJ 37 PESHAWAR-HIGH-COURT

KARIM VS THE STATE

—–Arts. 3/4—Control of Narcotic Substances Act (XXV of 1997), Ss.6/7/8—Appreciation of evidence—Statements of two prosecution witnesses, who were police officials, were full of contradictions, infirmities and discrepancies—Courts of law were un

2004 PCRLJ 1670 LAHORE-HIGH-COURT-LAHORE

ZAKIR ALI VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 6/9—Bail, grant of—Accused had no criminal history and was not involved in any criminal case of like nature—Accused did not have notoriety as drug pusher either—Being first

2004 PCRLJ 129 LAHORE-HIGH-COURT-LAHORE

Rana MUHAMMAD ANWAR VS D.I.-G.

—-Ss. 6, 9(c) & 21—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4/28—Criminal Procedure Code (V of 1898), S.87—Reinvestigation of case—Proceedings against Police Officer—During pendency of trial against accused, father of accuse

2004 MLD 1859 LAHORE-HIGH-COURT-LAHORE

MUHAMMAD ARIF VS State

–S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9 & 21—Bail, grant of—Further inquiry—Bail was, urged by accused on grounds; firstly that Assistant Sub-Inspector of Police who had conducted the raid, recovered goods and conduc

2004 YLR 2099 KARACHI-HIGH-COURT-SINDH

IMRAN AMEEN VS THE STATE

—-Ss.6/9(c)/14 & 15—Appreciation of evidence—Special Prosecutor had not supported conviction and sentence awarded to accused by Trial Court in view of the fact that no evidence was available against the accused —Co-accused had himself admitted the

2004 PCRLJ 746 KARACHI-HIGH-COURT-SINDH

Khan MUHAMMAD KHAN VS THE STATE

—-Preamble, Ss.4, 6, 7, 8, 9, 10, 12 & 14—Intent and object behind enacting Control of Narcotic Substances Act, 1997, inter alia, was to control the production, processing and trafficking of narcotics etc. and the Act being a special law the effective

2003 YLR 1901 PESHAWAR-HIGH-COURT

ADIL HUSSAIN VS THE STATE

—-Ss. 6, 7, 8 & 9—Appreciation of evidence—Contradiction appearing in testimony of prosecution witnesses with regard to time of occurrence—One witness had stated that occurrence took place at 8-30 p.m. and that no witness from the public was calle

2003 YLR 1748 PESHAWAR-HIGH-COURT

AFSAR KHAN VS THE STATE

—Ss. 6, 7, 8, 9(c) & 25—Appreciation of evidence—Deposition of Investigating Officer who had also conducted raid, with regard to recovery which was affirmed by other prosecution witness, could safely be depended upon as he was not only a responsible

2003 PCRLJ 1379 PESHAWAR-HIGH-COURT

TILA MUHAMMAD VS THE STATE

—-Ss. 6, 7, 8 & 9—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Appreciation of evidence—Prosecution had not been able to establish with any reasonable certainty as to whether all or which of the three accused persons could be attr

2003 PCRLJ 1139 PESHAWAR-HIGH-COURT

JAMEEL KHAN VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6,7, 9 & 21—Bail, grant of—Search and consequent recovery in case having been made in contravention of provisions of S.21 of Control of Narcotic Substances Act, 1997, such fact alone wou

2003 PCRLJ 1123 PESHAWAR-HIGH-COURT

BAKHT JAMAL VS THE STATE

—-Ss.6, 7, 8 & 9(c)—Customs Act (IV of 1969), Ss.2(s) & 156(1) (8)(89)—Appreciation of evidence—No contradiction on material points in the statements of prosecution witnesses had been found—Said witnesses were put to lengthy cross-examination by

2003 MLD 261 PESHAWAR-HIGH-COURT

FAZAL-E-AYAN VS THE STATE

—-S.497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7 & 9—Bail, grant of—Allegation against the accused was that he had been implicated in the commission of an offence by

2003 PLD 87 PESHAWAR-HIGH-COURT

THE STATE VS RASHID

—-Ss. 439 & 516-A—Control of Narcotic Substances Act (XXV of 1997), Ss..6/7/8/9—Customs Act (IV of 1969), Ss.16/156(1)(89)/157/178/2(s)–Superdari of vehicle—Petitioner had challenged the order of Judge Special Court whereby he had handed over the

2003 YLR 2401 LAHORE-HIGH-COURT-LAHORE

SAMINA BIBI VS THE STATE

—-S. 497, first proviso—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9/51–ÂProhibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4—Bail, grant of—Accused was a woman and had five daughters, the youngest being merely one year old

2003 PCRLJ 1740 LAHORE-HIGH-COURT-LAHORE

PERVAIZ AKHTAR VS THE STATE

—S. 498—Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9(c)—Pre-arrest bail, grant of—Police during investigation had collected material against accused through inculpatory statement made by his own son to the effect that accused was also

2003 PCRLJ 1869 KARACHI-HIGH-COURT-SINDH

ALI BUX VS THE STATE

—-S. 497— Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 9, 12, 14 & 15—Bail, grant of—Accused had been behind the bars for the last five years on the charge of having 250 grams of heroin—Case against the accused had not been proceed

2003 PCRLJ 1700 KARACHI-HIGH-COURT-SINDH

MUHAMMAD LATEEF VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXVII of 1997), Ss.6, 7, 8, 9, 12, 13, 14, 15 & 37—Bail, grant of—Contention of the accused was that although according to Mashirnama 4 Kgs. of Charas was alleged to have been recovered from the possess

2003 PCRLJ 1250 KARACHI-HIGH-COURT-SINDH

MEHBOOBUR REHMAN VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9/12/13 & 15—Bail, grant of—Accused earlier was granted bail and since then he was attending hearing and remained on bail for about four and half years, but thereafter bail granted to

2003 PCRLJ 789 KARACHI-HIGH-COURT-SINDH

WAQAR KHAN VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9(c)—Prohibition (Enforcement of Hadd) Order (4 of 1979). Arts.3/4—Bail—Recovery of the narcotics having been made at the pointation of the accused himself by leading the police par

2002 PLD 610 SUPREME-COURT

THE STATE VS ALI RAZA (RAZA ALI)

—-Ss. 156(1)/8/14 —Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9—Criminal Procedure Code (V of 1898), S.403—Constitution of Pakistan (1973), Arts.199, 13 & 185(3)—Constitutional petition before High Court—Double trial—Com

2002 SCMR 1814 SUPREME-COURT

STATE OF PAKISTAN VS HUSSAIN ABDULLAH SALUM

—-S.403—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 7–Customs Act (IV of 1969), S.156(1)(8)—Constitution of Pakistan (1973), Arts. 13(a) .& 185(3)—Petition for leave to appeal—Time-barred–Condonation of delay—Question of general

2002 PLD 58 QUETTA-HIGH-COURT-BALOCHISTAN

MEHRAB KHAN VS THE STATE

—-Ss. 6, 7 & 29—Possession—Word “possession” has been used in the Control of Narcotic Substances Act, 1997, in a wider sense so as to include transport, despatch and delivery—Transportation within the country is also prohibited and the finding rel

2002 PCRLJ 1680 PESHAWAR-HIGH-COURT

GUL SAID VS THE STATE

Control of Narcotic Substances Act 1997 —-Ss. 6, 7, 8, 9, 20, 21 & 47—Criminal Procedure Code (V of 1898), Ss.59 & 154—Arrest of accused who committed a non-bailable and cognizable offence—Under S.59, Cr.P.C. even a private person could arrest an accused who committed a non-bailable and cognizable offence in his sight or was a proclaimed offender—By virtue of S.47 of Control of Narcotic Substances Act, 1997, provisions of Cr.P.C. were made applicable to proceedings under that Act except as otherwise provided by the Act itself—If there was no express exclusion of S.59, Cr.P.C. and offence under Ss.6, 7, 8 & 9 of Control of Narcotic Substances Act, 1997 being cognizable, arrest made by a person below the rank of Sub-Inspector could not be held violative of S.20 of Control of Narcotic Substances Act, 1997—Even if arrest, seizure and search made by person below rank of Police Sub-Inspector, were held to be violative of S.21 of Control of Narcotic Substances Act, 1997, but requirement of S.154, Cr.P.C. whereunder F.I.Rs. were recorded, were met, did not preclude any person from reporting offence to Inspector of Police if it related to commission of cognizable offence, meaning thereby that any person could be competent complainant regarding an offence under Control of Narcotic Substances Act, 1997, of course, subject to investigation by Authority/ Officer competent to investigate—Legality of search, seizure or arrest at bail stage would not be considered because bail applications were decided on basis of material available on record.

2002 PCRLJ 1402 PESHAWAR-HIGH-COURT

MAHMOOD KHAN VS THE STATE

Control of Narcotic Substances Act 1997 —Ss. 6, 7, 9, 25, 74 & 76—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4—Criminal Procedure Code (V of 1898), S.103–Appreciation of evidence—Stance taken by accused that contraband which belonged to another person had been foisted upon him, was not convincing as not only accused had failed to support his plea by any evidence, but also had remained unable to show any background of bitterness or ill-will between him and police so as to prompt police to falsely implicate him in a case of such nature—If provisions of S.103, Cr.P.C. were not complied with by Investigating Officer, provisions of S.25 of Control of Narcotic Substances Act, 1997 had clearly excluded application of S.103, Cr.P.C. to cases under Control of Narcotic Substances Act, 1997—Investigating Officer had furnished valid explanation for non-associating two public witnesses from the spot—No legal prohibition existed to the effect that Investigating Officer could not be a complainant, a witness to commission of offence and also an Investigating Officer provided that did not, in any manner, prejudiced the accused—Contention of accused that as provisions of S.9 of Control of Narcotic Substances Act, 1997 as well as provisions of Arts.3/4 of Prohibition (Enforcement of Hadd) Order, 1979 were attracted in his case, penal provision carrying a lesser punishment was to be applied to him, was repelled in view of provision of S.76 of Control of Narcotic Substances Act, 1997, which had provided an overriding effect to provisions of Control of Narcotic Substances Act, 1997 over anything contained in any other law for the time being in force—Confessional statement made by accused which was recorded after observing all formalities, was voluntary and true and did not suffer from any defect of form or substance—Confession though was retracted by accused, but mere retraction was not enough to make the same involuntary or diminish its intrinsic value—Mere fact that vehicle from which contraband was recovered had not been produced before Court, was not fatal to prosecution story—Vehicle having been found used in commission of crime had already stood confiscated to State—Accused who was involved in a case of heinous nature, deserved no leniency—Prosecution case having been proved against him beyond any reasonable doubt, conviction and sentence passed against accused by Trial Court, were maintained.

2002 PCRLJ 971 PESHAWAR-HIGH-COURT

BARAT VS THE STATE

—-Ss. 497 & 103—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 9 25 & 51(1)—Bail—Huge quantity of “Charas” was recovered from the possession of accused—Report of the Chemical Examiner was in positive—Recovery witnesses had no ill-w

2002 PCRLJ 666 PESHAWAR-HIGH-COURT

ABDUL HAMID VS THE STATE

—S. 516-A—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 74 & 32—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4—Custody of the vehicle—Record did not show that the vehicle in question was used in the commission o

2002 YLR 3800 LAHORE-HIGH-COURT-LAHORE

MAQSOOD KHAN alias ALAM KHAN VS THE STATE

—-Ss.6/9—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4–Appreciation of evidence—Statement of prosecution witness who was member of raiding party, had fully been supported by other member of raiding party—Both were subjected to len

2002 PLD 453 KARACHI-HIGH-COURT-SINDH

ABDUL RASHEED VS THE STATE

—Ss. 497/498—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9, 46(2)(i), 51 & 74—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4—Notification No.F.21(5)/2000-A.IV(D), dated 16-10-2000– Notification No.F.21(5)/2000-AIV(D)

2002 PCRLJ 186 KARACHI-HIGH-COURT-SINDH

ANWAR ALI VS THE STATE

—-S. 497—Control of, Narcotic Substances Act (XXV of 1997), Ss.6, 7, 9, 12, 14, 15 & 51—Bail, grant of—Bail had been sought on ground of statutory delay—Accused were behind the bars for more than two years—Delay occurred due to inordinate dela

2002 MLD 1422 KARACHI-HIGH-COURT-SINDH

ILTAF KHAN VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/9–Juvenile Justice System Ordinance (XXII of 2000); S.10(7)(a)–Sindh Children Act (XII of 1955), Ss. 10/64/68—Bail, grant of—Accused at, the time of commission of offence was hardly

2002 MLD 1416 KARACHI-HIGH-COURT-SINDH

IMRAN AMIN VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XVII of 1997), Ss.6/9—Bail, grant of—Accused was in 33rd month of his continuous jail custody and no prosecution witness had been examined—Accused was undertrial prisoner and charge had yet to be prov

2002 MLD 1123 KARACHI-HIGH-COURT-SINDH

MUHAMMAD SALEEM VS THE STATE

—-S. 497(2)—Control of Narcotic Substances Act (XXV of 1997), Ss..6/9(b)—Bail, grant of—Offence against accused was nor punishable with more than 7 years —Mashirs of alleged recovery of Charas were members of same raiding party —Factum of enqu

2001 SCMR 1083 SUPREME-COURT

THE STATE VS NASIM AMIN BUTT

Control of Narcotic Substances Act 1997 —-Ss. 6, 7, 8, 9(c), 14 & 15—Customs Act (IV of 1969), S. 156(1)(8)—Constitution of Pakistan (1973), Arts. 185(3) & 13—Narcotics, smuggling of—Trial of accused persons under two different laws—Leave to appeal was granted by Supreme Court to consider; whether the offences for which the accused persons were being tried under Ss.6, 7, 8, 9(c), 14 & 15 of Control of Narcotic Substances Act, 1997, were the same for which they had earlier been tried under 5.156(1)(8) of Customs Act; 1969, as. such, was violative of Art. 13 of the Constitution.

2001 SCMR 14 SUPREME-COURT

THE STATE VS ABDUL QAYUM

Control of Narcotic Substances Act 1997 —-S.497(5)—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8, 9, 14 & 15—Bail, cancellation of—Failure of prosecution to show any direct or indirect piece of evidence connecting accused with the crime—_ Reliance was placed on the statements of co-accused recorded by police during investigation—Nothing incriminating was found against the accused—Statements of co-accused could not be relied upon for the purpose of cancellation of bail.

2001 MLD 142 PESHAWAR-HIGH-COURT

ZAFAR VS THE STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/7/8/9— Bail—Recovery of heroin from the accused had been witnessed by the officials of Anti-Narcotic Force who had supported the same in their statements made under S.161, Cr.P.C.—La

2001 PLD 152 PESHAWAR-HIGH-COURT

NASRULLAH VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8 & 9—Bail, grant of—Record showed the recovery of seven Kgs. of Charas from the possession of the accused which could not be convincingly disputed—Nonetheless, in view of the v

2001 PLD 283 KARACHI-HIGH-COURT-SINDH

HUSSAIN ABDULLAH SALUM VS THE STATE

—-S. 156(1)(8)—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 9, 72 & 74—Constitution of Pakistan (1973), Art. 13(a)—Criminal Procedure Code (V of 1898), S. 403—Protection against double punishment—Accused after having been convict

2001 YLR 743 KARACHI-HIGH-COURT-SINDH

IQBAL VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9—Bail, grant of–Considerable delay was caused in holding trial by the Trial Court without any fault of the accused—High Court directed the Trial Court to examine at least the compl

2001 YLR 654 KARACHI-HIGH-COURT-SINDH

MUHAMMAD CHATTAL VS STATE

—-S. 497—Control of Narcotic Substances Act (JXV of 1997); Ss. 6/9—Bail, grant of–Recovery had been effected from the place of Vardat, but not from the possession of the accused—Out of thirty kilograms Charas only one kilogram had been sent to th

2001 YLR 611 KARACHI-HIGH-COURT-SINDH

MUHAMMAD ANWAR VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8, 9 & 14—Bail, grant of—Accused remained continuously in custody for about two and half years and during that period only the charge had been framed, but not a single witness wa

2001 PCRLJ 1792 KARACHI-HIGH-COURT-SINDH

IQBAL VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss-6, 9, 16 & 51—Drugs Act (XXXI of 1976), S.2 (g)—Bail—Phenobarbital powder weighing 20 kilograms recovered from the accused was psychotropic substance and thus, an offence under S.6 of

2001 PCRLJ 331 KARACHI-HIGH-COURT-SINDH

ASIF ALI VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6/7/8/9/12/14/15—Penal Code (XLV of 1860), Ss.120-B/471/34–Bail—Trial Court had framed the charge, against the accused for an offence punishable with death under the Control of Narcoti

2001 MLD 1166 KARACHI-HIGH-COURT-SINDH

HABIBULLAH KHAN VS THE STATE

—-S.497—Control of Narcotic Substances .Act (XXV of 1997), Ss.6, 7, 8, 9, 14 & .15—Bail, grant of—Application for quashing of proceedings earlier filed by the accused had already been dismissed by High Court—Accused was alleged to be on suspect

2000 SCMR 677 SUPREME-COURT

BAHADAR KHAN VS STATE

497—Control of Narcotic Substances Act (XXI of 1997), S. 6/9–Bail, grant of—Nothing had been recovered from accused who was in jail since long and trial against him had not yet commenced—Case against accused being of further inquiry, was admitted to bail.

2000 SCMR 299 SUPREME-COURT

THE STATE VS MOBIN KHAN

Ss.497(5) & 497(1), third proviso—Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 10, 11, 12 & 51(1)—Constitution of Pakistan (1973), Art.185(3)—Cancellation of bail—Bail had been allowed by High Court on the ground of statutory delay to accused from whom heroin weighing ten Kgs. was allegedly recovered—Provisions of third proviso to S.497(1), Cr.P.C., could not be pressed into service from grant of bail to accused in view of S.51(1) read with S.9(b) & (c) of the Control of Narcotic Substances Act, 1997—Even otherwise if it was conceded for the sake of arguments, that the application of the third proviso to S.497(1), Cr.P.C., had not been excluded by S.51(1) of the Control of Narcotic Substances Act, 1997 (which seems to be incorrect, since cl. (c) of S.9 of the said Act, inter alia, carried sentence of death), the statutory period of delay would be two years under cl. (b) of the third proviso to S.497(1), Cr.P.C. which admittedly had not yet expired and the accused could not have been granted bail on the ground of statutory delay—Petition for leave to appeal was consequently converted into an appeal and bail allowed to accused by High Court in the case was cancelled.

2000 PCRLJ 472 QUETTA-HIGH-COURT-BALOCHISTAN

HAMEEDULLAH VS STATE

Control of Narcotic Substances Act 1997 —-S. 6—Criminal Procedure Code (V of 1898), S.367—Appreciation of evidence—Conviction of accused under S.6, Control of Narcotic Substances Act, 1997 was not legal as same was not a penal clause whereas punishment for contravention of said section was provided under S.9 of the said Act–Judgment and sentence awarded to accused was set aside and case was remanded to be decided afresh after hearing parties and by writing a proper judgment in accordance with law.

2000 PCRLJ 945 PESHAWAR-HIGH-COURT

SUCHA GUL VS STATE

—-S. 497—Control of Narcotic ‘Substances Act (XXV of 1997), Ss.6/7/8/9(c) & 51—Customs Act (IV of 1969), S.156(1)(89)/157/178/26/ . 2(s)—Bail—Accused having been charged under S.9(c) of the Control of Narcotic Substances Act, 1997 was debarred b

2000 PCRLJ 891 PESHAWAR-HIGH-COURT

SHAGUFTA ANWAR VS ZULFIQAR

—-S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4—Control of Narcotic Substances Act (XXV of 1997), S.6/7/8/9–Bail, grant of—Assistant Sub-Inspector of Police was not competent to register the case against the accused under Ss

2000 YLR 2173 LAHORE-HIGH-COURT-LAHORE

SABIR VS THE STATE

—-Ss. 403 & 561-A—Customs Act (IV of 1969), Ss.156 (1) (89), 157 & 178—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8, 9. 9-C, 14 & 15—General Clauses Act (X of 1897), S.26—Constitution of Pakistan (1973), Art.13—Quashing of cas

2000 PCRLJ 1002 LAHORE-HIGH-COURT-LAHORE

OMARI KHOJA VS STATE

Control of Narcotic Substances Act 1997 —-S. 6/9—Customs Act (IV of 1969), S.156(1)(8)—Constitution of Pakistan (1973), Art.13—General Clauses Act (X of 1897), S.26—Criminal Procedure Code (V of 1898), Ss.403 & 561-A—Quashing of proceedings–Plea of double jeopardy—Trial of accused under Control of Narcotic Substances Act, 1997 after their trial under the Customs Act, 1969–Validity—Point in issue was as to whether a person who had been tried by the Special Judge, Customs and either acquitted or convicted for smuggling or being in possession of narcotics could be tried for the second time by the Special Judge under the Control of Narcotic Substances Ordinance, 1996–. Held, the offence of smuggling and carrying of narcotics being one and the same, the second trial .was barred in view of Art. 13 of the Constitution, S.26 of the General Clauses Act, 1897 and S.403 of Criminal Procedure Code, 1898—Cases pending against the accused were quashed accordingly.

2000 PCRLJ 1870 KARACHI-HIGH-COURT-SINDH

IMRAN AMIN VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.6/9–Bail, grant of—Prosecution case, prima facie, had disclosed commission of a cognizable offence punishable with sentence up to death—Substantial accusation being available against ac

2000 PCRLJ 1792 KARACHI-HIGH-COURT-SINDH

SHEHZAD QAMAR VS THE STATE

Control of Narcotic Substances Act 1997 —-S. 6/9—Appreciation of evidence—All three accused were real brothers inter se and it would hardly appeal to a prudent mind that all three of them were taking away huge quantity of Charas in their hands in busy morning hours of, the day—Private citizen who was made Mushir, was not examined and was held back and instead’ other police official was examined and no explanation was given by prosecution for the change of prosecution witness—Complainant has given inconsistent statement which had contradicted statement of prosecution witness—Chemical Examiner’s Report had shown that samples were sent on two different dates after more than fifteen days of alleged recovery—Prosecution evidence, thus, could not be termed as truthful and free from doubt—Prosecution having , failed to prove its case beyond any shadow of reasonable doubt, conviction and sentences awarded to accused by Trial Court were set aside.

2000 PCRLJ 1360 KARACHI-HIGH-COURT-SINDH

HAMZA VS STATE

—-Art. 3/4—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9—Appreciation of evidence—One of prosecution witnesses was a stock witness and a drug addict—Other witness had admitted in his cross-examination that he had been appearing in c

2000 PCRLJ 1317 KARACHI-HIGH-COURT-SINDH

LIAQUAT ALI VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of, 1997), S.6/9(c)—Bail, grant of—Accused was behind the bars for the last more than one year, but trial had not been concluded—Reason for non-conclusion of the trial was non-availability of Pres

2000 PCRLJ 956 KARACHI-HIGH-COURT-SINDH

XIOMORIA MARIA DE ARAMS TROJILLO VS STATE

—-Ss. 403 & 561-A—Customs Act (IV of 1969), Ss.2(5) & 156(1)(8)–Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7 & 9(c)–Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4—Constitution of Pakistan (1973), Art. 13(1)—Principle o

2000 PCRLJ 763 KARACHI-HIGH-COURT-SINDH

HAZRAT KHAN VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.6/7/8/9/12/13/14/15—Bail—F.I.R. could not be ruled out of consideration merely on account of the omission of a minor fact as the same did not necessarily require to have contained the mi

2000 PCRLJ 760 KARACHI-HIGH-COURT-SINDH

ABDUL JALIL VS STATE

Control of Narcotic Substances Act 1997 —-S. 6/9(c)—Appreciation of evidence—Charge framed in the case was bad in law as “Bhang” allegedly recovered -from the accused did not fall within the definition of “hemp” contained in S.2(D)(ii) of the Control of Narcotic Substances Act, 1997—F.I.R. was silent about the weighing and sealing of the recovered material at the spot —Mashirs were the subordinates of the complainant—Prosecution evidence suffered from material discrepancies which had been ignored by the Trial Court—Accused was acquitted in circumstances.

2000 PCRLJ 745 KARACHI-HIGH-COURT-SINDH

ALI MUHAMMAD VS STATE

—-Ss. 497 & 498—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9, 12, 13, 20 & 21—Bail, grant of—Accused and co-accused at the relevant time were travelling in a car which on its stoppage was found containing five Kgs. of Charas in packet

2000 PCRLJ 743 KARACHI-HIGH-COURT-SINDH

EHSANUL HAQUE VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 9 & 13—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4—Bail, grant of—Bail was claimed on grounds of statutory delay and ill-health of accused—Quantity of 340 gra

2000 PCRLJ 740 KARACHI-HIGH-COURT-SINDH

ALI DOST VS STATE

—-Ss. 497 & 498—Control of Narcotic Substances Act (XXV of 1997), Ss.6, ~, 8, 9, 13, 14 & 51—Bail, grant of—Accused and co-accused had established a false trading company and had sent eight hundred Kgs. Hashish in bags to a foreign country—Fact

2000 PCRLJ 735 KARACHI-HIGH-COURT-SINDH

WAKEEL AHMAD SIDDIQUI VS STATE

——Ss. 497 & 498 —–(control of narcotic substances act (XXV of 1997) Ss 6, 7, 8, 9, 13, 14, 15 & 51 ——-Penal code (XLV of 1860), S 120-B/34—- Bail grant of —–Allegation against accused was that he was connected with company which had export

2000 PCRLJ 569 KARACHI-HIGH-COURT-SINDH

MEHBOOB-UR-REHMAN VS STATE

—-Ss. 497 & 498—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 8, 9, 12, 14, 15 & 51—Bail, grant of—Provisions of S.51(1), Control of Narcotic Substances Act, 1997, provide bar in respect of grant of bail to an accused if Trial Court had

2000 PCRLJ 551 KARACHI-HIGH-COURT-SINDH

GUL MUHAMMAD VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.6/9–Bail, grant of—Accused was not found selling “Charas” within the bounds of an enclosure, room or shop, but the same was secured on his personal search from the pocket of his inner shi

2000 MLD 842 KARACHI-HIGH-COURT-SINDH

ABDUL QAYYUM VS STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 14 & 15—Bail—Court obviously could not be oblivious to the menace of drugs and their evil effects in the society, but the law as to the grant of bail in such offences, despit

1999 YLR 2487 PESHAWAR-HIGH-COURT

ASHRAF KHAN VS STATE

—-S.497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4 — Control of Narcotic Substances Act (XXV of 1997), S.6/7/9—Bail, grant of—Age—Accused according to his School Leaving Certificate was 13/14 years of age—Report of Chemical

1999 YLR 2087 PESHAWAR-HIGH-COURT

STATE VS ZAFARVAB

—-Ss. 516-A & 439—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 3/4—Control of Narcotic Substances Act (JXV of 1997), S. 6/7/8/9/13—West Pakistan Arms Ordinance (XX of 1965), S. 13—Penal Code (XLV of 1860), S. 419/420—Custody of ve

1999 YLR 1732 PESHAWAR-HIGH-COURT

SAKINA VS STATE

—-S.497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9—Bail–Recovery of one kilogram heroin had been effected from the actual possession of accused which was confirmed as heroin by the Chemical Examiner’s Report—Accused on the

1999 YLR 1625 PESHAWAR-HIGH-COURT

MUMTAZ SHAH VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9—Bail, grant of—Two persons who were found carrying 45 Kgs. of Charas in motor car were arrested and case under Ss. 6, 7, 8 & 9 of Control of Narcotic Substances Act, 1997 w

1999 YLR 1613 PESHAWAR-HIGH-COURT

MUHAMMAD AKRAM ALIAS LADO VS THE STATE

—-S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 3/4—Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8 & 9—Bail, grant of—An Assistant Sub-Inspector of Police admittedly had no jurisdiction to register a case under

1999 YLR 1405 PESHAWAR-HIGH-COURT

NADIR KHAN VS STATE

—-Ss. 497 & 103—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4–Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 7, 8, 9, 51 & 25—Bail–Quantity of heroin recovered from the accused being more than one kilogram, the offence was

1999 PCRLJ 830 PESHAWAR-HIGH-COURT

MUHAMMAD SHAFIQUE VS STATE

—-S. 156(1)(8)—Control of Narcotic Substances Ordinance (VI of 1995), Ss.6, 7, 8 & 9—Appreciation of evidence—Accused who was a Customs Clearing and Forwarding Agent had, in fact, presented a shipping bill and admittedly had not produced case prop

1999 PCRLJ 808 PESHAWAR-HIGH-COURT

ADIL JAN VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7 & 9–Bail, grant of—Principal accused had charged the accused in his statement recorded simply under S.161, Cr.P.C. which was usually not seriously taken by the Courts—Investigatin

1999 PCRLJ 728 PESHAWAR-HIGH-COURT

BUNER GUL VS STATE

—-(. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8 & 9(c)—Bail, grant of—Recovery of 43 kilograms of heroin from the accused by Anti-Narcotics Force—Accused was nabbed by Anti-Narcotics Force after a hot pursuit and hide and s

1999 PCRLJ 63 LAHORE-HIGH-COURT-LAHORE

NAVEED AHMAD KHAN VS STATE

—-S. 497—Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4–Control of Narcotic Substances Act (XXV of 1997), S.6/9—Bail, grant of–Case having been registered against the accused under two different provisions of law and his offence bein

1999 MLD 1255 KARACHI-HIGH-COURT-SINDH

SALEEM HYDER VS STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), S.6/9—Bail, grant of—Recovery was not made in the presence of respect-able of locality though complainant had advance information—Maximum punishment prescribed for alleged offence did no

1998 PCRLJ 1540 KARACHI-HIGH-COURT-SINDH

NAZAN SHAH VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9–Bail, grant of—Case against accused at best was of recovery of 500 grams of Charas which was stated to have been sent to Chemical Examiner—Such recovery being less than one kilog

1998 PCRLJ 1444 KARACHI-HIGH-COURT-SINDH

LIAQUAT ALI VS THE STATE

—-S. 497—Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9 & 21–Bail, grant of—Maximum punishment provided in respect of offence alleged against accused, was seven years—Case against accused in circumstances would not fall within prohibit

1997 PLD 69 QUETTA-HIGH-COURT-BALOCHISTAN

KHAUDAI DAD VS THE STATE

Control of Narcotic Substances Act 1997 —-Arts. 3 & 4—Control of Narcotic Substances Ordinance (VI of 1995), Ss. 6, 7, 8 & 9—Repeal by implication—When not permissible—Articles 3 & 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and Ss. 6, 7, 8 & 9 of the Control of Narcotic Substances Ordinance, 1995 being not inconsistent to each other, former law cannot be inferred to have been impliedly repealed by the latter law.