2016 PLP 1054 (MLD)

SHAHNAWAZ TARIQ, J.

Through captioned post arrest bail application, applicant Bilawal Kamboh has impugned order dated 29.05.2015, passed by the Court of learned Sessions Judge/Special Judge for CNS, Khairpur, whereby his earlier bail application was dismissed.

2. Necessary facts spelt out from FIR are that fateful day at about 12-noon, complainant SIP Ghulam Ali Shar apprehended applicant at Mari Naka Link Road, Mehrabpur and recovered 2500 Grams Charas from his possession, hence instant FIR.

3. Learned counsel for applicant contended that applicant is innocent and has been falsely implicated by complainant; that there is 16 days delay in sending the recovered narcotic substance to the Chemical Examiner, which is fatal to the prosecution case; that recovered narcotic was sent by SSP Khairpur and SHO Pir Wassan with separate letters directly to the Chemical Examiner, Rohri, which created serious doubt and personal interest of the police; that applicant is behind the bars for more than 07 months without trial. He relied upon the case reported as 2012 SCMR 573, Jamal-ud-din alias Zubair Khan v. The State, 2010 SCMR 1160, Khuda Bux v. The State and 2012 PCr.LJ 1901, Noshad v. The State.

4. While controverting the above submissions, learned APG contended that applicant was apprehended at the spot and 2500 grams Charas was recovered from his possession, which was sent for chemical examination and Chemical Examiner has opined that recovered substance was Charas, hence applicant is not entitled for grant of bail.

5. I have heard learned counsel for the parties and perused the available record minutely, which reflects that applicant was apprehended on 30.03.2015 at 12-noon at Mari Naka Link Road, Mehrabpur, which is a busy road but complainant neither associated any private person to act as mashir nor he made serious efforts in this regard while availability of private persons at the busy place or recovery could not be ruled out. It is well settled that private persons should be given preference if they are available at the spot rather than official personnel to maintain the transparency of the recovery. In the case of State v. Bashir and others PLD 1997 SC 408, the Hon'ble Supreme Court while dealing with the issue of applicability of the provisions of section 103, Cr.P.C., has observed as follows:-- "As regards the above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirement of section 103, Cr.P.C. namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. In this regard, it will suffice to refer to a recent Judgment of this Court in the case of Mushtaq Ahmed v. The State, PLD 1996 SC

574. In the case in hand SIP Muhammad Rafique has not been able to give any cogent explanation as to why he was unable to secure two Mashirs from the public."

6. There is no explanation for sending the recovered substance with the delay of 16 days while Chemical Laboratory, Rohri is about 50 Kilometers away from police station. Learned APG has no explanation when SSP, Khairpur had sent the recovered substance directly to Chemical Examiner, Rohri vide letter No.PB/J/-090, Khairpur, dated 03.04.2015, then how SHO Police Station, Pir Wassan again sent same narcotics for report to Chemical Examiner vide letter No.39116, dated 14.4.2015, which was received on same by the Chemical Examiner's Office, while case property was not available at police station. Learned APG candidly submitted that as per practice in vogue, SSP never sends, recovered substance to the Chemical Examiner, as it is assignment of Investigating Officer to transmit the recovered substance to the Chemical Examiner and collect such report. This aspect of the case requires serious consideration. In the case of Noshad (supra), bail was granted to accused on the ground that recovered substance was sent to Chemical Examiner with delay of 07 days, while in the present case recovered narcotic was sent with unexplained delay of 16 days and there is no plausible explanation where said case property was kept which also requires consideration.

7. In the case of Jamaluddin (supra), while dealing with the case of recovery of 04 Kilograms Charas, the honourable Supreme Court observed as follows:-- "Without entering into the merits of the case, as the quantum of sentence has to be commensurate with the quantum of substance recovered, we doubt the petitioner can be awarded maximum sentence provided by the Statute. Needless to say that the Court while hearing, a petition for bail is not to keep in view the maximum sentence provided by the Statute but the one which is likely to be entailed in the facts and circumstances of the case. The fact that petitioner has been in jail for three months yet commencement of his trial let alone its conclusion is not in sight, would also tilt the scales of justice in favour of bail rather than jail".

8. After completion of investigation, Challan has been submitted and accused is no more required to the police and since the date of arrest, applicant is behind the bars and prosecution has failed to examine a single witness within a period of about 07 months though all the P.Ws. are police officials and it was not a difficult task for the prosecution to examine two witnesses against applicant before the trial Court. Consequently, further detention of applicant will not serve any useful purpose and even no one can be detained for an indefinite period. There is no apprehension of tampering with the prosecution evidence as all PWs are police officials. As such applicant has succeeded to make out a case for further enquiry as envisaged under Section 497(2), Cr.P.C, therefore he is admitted to post-arrest bail subject to his furnishing a solvent surety in the sum of Rs.100,000/- and P.R Bond in the like amount to the satisfaction of learned trial Court.

9. The above observations are tentative in nature and shall not influence upon the merits of the case. SL/B-21/Sindh Post-arrest bail granted.