2017 PLP 94 (YLRN)

RASHEED AHMED SOOMRO, J.

Through instant post-arrest bail application, applicant, namely, Usman son of Hamzo seeks bail in Crime FIR No. 31 of 2016, under section 9(c) Control of Narcotic Substances Act, 1997, registered at Police Station, Sujawal.

2. Prior to filing of this bail application, applicant approached the trial Court and filed bail application, which was dismissed by the learned Special Judge, (CNS), Thatta, vide order dated 04.07.2016.

3. Brief facts of the prosecution case as per FIR are that on 27.03.2016, the present applicant/ accused was apprehended by the police party of CIA Center Sujawal headed by SIP Bahadur Khan Jamali from Bhutti Road adjoining to Boys High School at about 1600 hours and seized one black colour shopper containing 20 big and small pieces of contraband narcotic substance viz. charas, weighing 1300 grams from his side fold of shalwar and from his front pocket of wearing shirt, police party also secured four notes, each of Rs.50/- denomination and ten notes, each of Rs.10/- denomination. Thereafter, complainant/ SIP Bahadur Khan Jamali checked the list of absconders which was available in police mobile, which indicates that present applicant/ accused previously involved in so many cases mentioned in the bottom of FIR. Such memo of arrest and recovery was prepared in presence of mashirs namely ASI Muhammad Aarab and PC Ameer Bux and then present applicant/ accused was arrested and taken to Police Station, Sujawal where above FIR was registered against him.

4. Learned counsel for applicant has contended that the applicant/ accused is quite innocent and has falsely been implicated in the above crime by the complainant with ulterior motives and mala fide intention. Learned counsel has contended that despite prior spy information no private mashir has been associated with the instant case to memo of arrest and alleged recovery and the incident took place near to High School and nothing has been recovered from the possession of applicant/ accused and the alleged recovery have been foisted upon the applicant /accused. Learned counsel has contended that all the witnesses are subordinate to the complainant hence there are no chances for tempering with the prosecution evidence. Learned counsel contended that the prosecution case on the face of it, is false, concocted and mendacious and is not believable in law. Learned counsel contended that no fruitful purpose would be served of further detention of applicant /accused, as such, the case against him is false one and further detention of applicant/ accused will only create hardship for his family. Learned counsel contended that the alleged weight of charas is shown to be 1300 grams which marginally excelled the limits of 1000 grams and the case is on borderline. Learned counsel further contended that the applicant was arrested with prior spy information but the seizing officer/complainant has neither mentioned that he has taken the said informer with them to the place of pointation so made arrest of present accused as a real culprit, even no step has taken by the complainant as contemplated in section 103, Cr.P.C. for acquiring two independent and respectable persons as mashirs of arrest and recovery. Learned counsel has contended that no purchaser or seller has been arrested from the spot by the complainant. Learned counsel has contended that as per the contents of the FIR, the complainant has not mentioned about the sealing of Charas in separate parcels, how much substances for chemical examination and rest for depositing, which creates serious doubts. Learned counsel contended that the alleged Charas is falling within the border line case, but the prosecution has not been examined as yet despite of his suffers in jail since his arrest for about eight and nine months period without solid substantial evidence against him, moreover, the alleged narcotics substances allegedly recovered from the accused exceeding border line falls within section 9(c) CNS Act, 1997. Learned counsel further contended that the learned trial Court while passing the impugned order did not consider the assumptions into the matter and passed the same in hasty manner, so it is well settled law that every case should be decided on merits, separately with fair means. Lastly, learned counsel has prayed for grant of bail to the applicant. In support of his contentions, learned counsel relied upon the following case-law:--

1. Gul Hassan Dero v. The State (2000 PCr.LJ 657)

2. Taj Ali Khan v. The State (2004 YLR 439)

3. Pervaiz Ahmed v. The State (PLD 2008 Karachi 14)

4. Gulab Hussain v. The State (2009 YLR 189)

5. Muhammad Akram v. The State (2016 PCr.LJ 1075)

5. Conversely, learned D.P.G. has vehemently opposed the grant of bail and has submitted that the present applicant/ accused is also involved in as many as 31 criminal cases and he is habitual offender, if bail is granted to him, he will misuse the same and will commit similar type of offence. Learned D.P.G. has further submitted that section 25 of C.N.S. Act, 1997 ousts the application of section 103, Cr.P.C. to contend that private witnesses were not required to be associated at the time of arrest or recovery. Lastly, learned D.P.G. has urged that this bail application may be dismissed. However, learned DPG has failed to point out from the record that whether the applicant /accused has been convicted in any other criminal case or not.

6. I have heard the learned counsel for the parties and have perused the record as well as case-law cited at bar.

7. It is an admitted position that alleged recovery of 1300 grams of charas is marginally exceeding boundary of 1000 grams, which does not fall within the prohibitory clause. It is yet to be decided at the trial as to whether case of the present applicant attracts the provisions of section 6/9-(b) or (c) of the C.N.S. Act, 1997. In this regard, reliance can safely be placed upon the case of Mehboob Ali v. The State (2007 YLR 2968), Gulab Hussain v. The State (2009 YLR 189), Taj Ali Khan v. The State (2004 YLR 439) and Rayasat Ali v. The State (2005 YLR 1862).

8. As per record, after completion of investigation, challan has been submitted and applicant is no more required further for investigation. PWs are officials, hence there is no apprehension of tampering with the prosecution evidence, if applicant is enlarged on bail, thus his further detention will not serve any useful purpose as the basic principle of criminal justice is bail not jail. The applicant/ accused is in jail since his arrest and there is no incriminating evidence against him.

9. So far as the contention of learned D.P.G. that applicant/ accused in involved in 31 criminal cases, on that point also, the Hon'ble Supreme Court of Pakistan in case of Mst. Fahmida v. The State (1997 SCMR 947), has held as under:-- ". . .In our view, an accused should not be denied the concession of bail on the ground that some cases are pending against him. It may be added that in this case out of the 6 cases alleged to have been registered against her, the petitioner has been acquitted in 3 cases and in the other 3 cases she is on bail."

10. Applying the above rule to the present case, it can safely be concluded that a person cannot be denied the concession of bail only for the reason that he is facing trial in some cases. As per record, it is also an admitted position that present applicant has not been convicted in any other case.

11. In view of the above discussion, applicant/ accused has made out a case of further inquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, I admit the present applicant Usman son of Hamzo on bail subject to furnishing solvent surety in the sum of Rs.1,00,000/- and PR Bond in the like amount to the satisfaction of learned trial Court.

12. Needless to mention here that the findings made herein above, are tentative in nature and would not affect or prejudice the case of either side. The learned trial Court may also not be influenced while deciding the case on merits. WA/U-5/Sindh Bail granted.