2017 PLP 293 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned post arrest bail application, applicant Pervez alias Pehalwan has impugned order dated 18.01.2016, passed by learned Judge Special Court-1 (CNS), Karachi, whereby his earlier bail application was declined.

2. Relevant facts mentioned in FIR are that complainant Inspector Sheraz Siddique received spy information on 25.11.2015 regarding transportation of huge quantity of Charas, consequently, he along with staff proceeded to pointed place adjacent to Caltex Petrol Pump, near Al-Asif Square, Sohrab Goth, where at 1430 hours, he intercepted applicant and secured a black plastic shopper from his hand which was containing pieces of Chars weighing 1040 grams, hence instant FIR.

3. Learned counsel for applicant contended that applicant is innocent and has been falsely involved in present crime by the complainant and the alleged recovery has been foisted upon him for ulterior motives. He further contended that the applicant is behind the bars for more than six months but prosecution has failed to examine any witness against applicant; that complainant received spy information about the transportation of narcotics but no private person was associated to act as mashir; that considering the quantity of alleged recovery of narcotics, there is no possibility of awarding maximum punishment to the applicant as provided under section 9 (C), CNS Act.

4. While controverting the above arguments, learned Special Prosecutor ANF vehemently contended that applicant was apprehended at the spot and from his possession Chars was also recovered, hence he is not entitled to grant of bail.

5. Heard arguments advanced by learned counsel for the parties and perused the available record which emanates that on 25.11.2015 complainant received spy information regarding transportation of huge quantity of Chars and he had plenty of time to hire any private person to maintain transparency of alleged recovery but he neither made any serious efforts to associate any public person to act as a mashirna or any plausible explanation has been furnished in this regard. Admittedly, applicant was arrested near Caltex Petrol Pumb, Al-Asif Square, Sohrab Goth which is a thickly populated area and a bus stop, hence the availability of staff members of Petrol Pump and public persons at the spot could not be ruled out. It is well settled that in cases of recovery, it is incumbent upon the police to make serious efforts to hire any private person if available on the spot to maintain transparency of alleged recovery, which in the present case, has not been done by the complainant. Furthermore, applicant is behind the bars for more than five months but prosecution has failed to examine a single witness to substantiate the charge against the applicant though all the three PWs are ANF Officials and procuring of their attendance was not a difficult task for the prosecution, which is violation of the dicta laid down by the Hon'ble Supreme Court in case of State v. Bashir and others PLD 1997 SC

408. At the present, challan has been submitted and applicant is no required for investigation, hence is further detention will not serve any useful purpose. Per averments of FIR, complainant has failed to mention total number of pieces of Chars recovered from the possession of applicant, which also requires serious consideration.

6. In case of Jamal-ud-Din alias Zubair Khan v. State 2012 SCMR 573, the Hon'ble Supreme Court has observed as follows: "

4. 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 Statue 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."

7. Considering the facts and circumstances referred supra, the applicant has succeeded to make out a case for grant of bail on the ground of further enquiry as envisaged under subsection (2) of section 497, Cr.P.C. Resultantly, applicant is admitted to post-arrest bail subject to his furnishing solvent surety in sum of Rs.100,000/- (Rupees one lac only) with PR bond in the like amount to the satisfaction of the learned trial Court. The observations made above are tentative in nature and learned trial Court shall decide the subject case purely on its merits. WA/P-31/Sindh Bail granted.