THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No. 936 of 2024
[Abdul Wahid & others v. the State]
Applicants : (i) Abdul Wahid son of Muhammad
Yousuf
(ii) Mohammad Hanif son of Shareef
(iii) Kamran Akbar son of Muhammad
Akbar
through Mr. Jam Shahid Iqbal Advocate.
Respondent : The State, through Mr. Mujtaba Saheto,
Special Prosecutor, Ms. Alizeh Bashir,
Assistant Attorney General for Pakistan
Date of hearing : 21-08-2024
Date of decision : 21-08-2024
FIR No. ASO-439/2023-HQ
u/s: 6, 7 & 8 r/w sections 14 & 15 of the
Control of Narcotic Substances Act, 1997,
punishable u/s 9(1)(d) ibid.
P.S. ASO (HQ) NMB, Wharf, Karachi
ORDER
Adnan Iqbal Chaudhry J. – The Applicants/Accused seek post-
arrest bail in the aforesaid crime after the same has been declined by
the trial court by order dated 06.04.2024.
2. As per the FIR dated 28.10.2023, on a tip-off, a passenger bus
entering Karachi from Gwadar was stopped for checking at Mochko
check-post; that a search revealed an engineered space within the
roof of the bus, from which was recovered 62 plastic boxes wrapped
in blue polythene, and 40 other black polythene packets; that the 62
plastic boxes contained „green color buds‟, suspected to be
„Marijuana/Ganja/Cannabis‟, with a net weight of 14.85 kg; that 10
grams from each box was taken as a sample for chemical
examination, and the remainder sealed; that the Applicant No.1 was
arrested as he was driving the bus, and the Applicants 2 and 3, who
were cleaners of the bus, were arrested as accomplices; all booked
for offences under sections 6 to 8 of the Control of Narcotics
Spl. Cr. Bail App. No. 936 of 2024
Substances Act, 1997, punishable as prescribed at serial 1(d) of Table
1 of section 9 of the CNS Act, 1997 for a term which may extend to
imprisonment for life, but not less than 14 years, plus fine.
3. As regards the other 40 black polythene packets, those were
found to contain Boostin injections, allegedly banned for import into
Pakistan, and therefore the FIR also alleged the offence of smuggling
under section 2(s) of the Customs Act, 1969. For that offence, the
Applicants were granted bail by this Bench by order dated
12.03.2024 passed on Spl. Criminal Bail Application No. 14/2024.
4. Heard learned counsel and perused the record.
5. The report of the Chemical Examiner placed on the record by
the Prosecutor identifies the samples as “weeds”, whereas the challan
classifies the offence under serial 1 of Table 1 of section 9 of the CNS
Act, which relates to „bhang‟. Per the prosecution, „weed‟ is another
name for „cannabis‟, which in turn includes „bhang‟ as per the
definition in section 2(d)(ii) of the Act. However, the Prosecutor
concedes that given the net weight of the quantity allegedly seized,
the offence would not be punishable under serial 1(d), but under
serial 1(c) of Table 1, where the maximum imprisonment prescribed
is 14 years, not less than 7 years. Therefore, the case does not fall
within the prohibitory clause of section 51 of the CNS Act.
6. The narcotic was admittedly recovered from a secret space
within the roof of a bus carrying passengers, which space was
accessible from the inside of the bus. It was not recovered from the
person of the Applicants or from a place which could be undeniably
within their knowledge. Learned Prosecutor submits that given the
nature of the secret space and the quantity of the narcotic, it could
not have been stashed there by a passenger on the bus. But then, the
Applicants too were only hired hands for the bus, the Applicant
No.1 as driver, and the Applicants 2 and 3 as cleaners. The ratio of
the cases of Muhammad Noor v. The State (2020 SCMR 927) and
Nazeem Ullah v. The State (2020 SCMR 356) is that ‘possession’ under
section 6 of the CNS Act connotes a conscious possession. Therefore,
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Spl. Cr. Bail App. No. 936 of 2024
it has yet to be seen whether the Applicants were conscious of the
narcotic concealed in the bus. Till such time, the extra-judicial
statements of the Applicants cannot be used against them.
7. Given the aforesaid, the case against the Applicants requires
evidence into their guilt. In the meanwhile, their custody is no
longer required for investigation.
8. In view of the foregoing, the Applicants have a fit case for bail
under sub-section (2) of section 51 of the CNS Act. Therefore, bail is
granted to Abdul Wahid, Mohammad Hanif and Kamran Akbar in
FIR No. ASO-439/2023-HQ subject to furnishing solvent surety in
the sum of Rs.200,000/- [Rupees Two Hundred Thousand only] each
alongwith P.R. Bond in the like amount to the satisfaction of the trial
Court.
Needless to state that observations herein are tentative, and
nothing herein shall be construed to prejudice the case of either side
at trial.
JUDGE
Karachi
Dated: 21-08-2024
*PA/SADAM
