2009 PLP 819 (YLR)

ABDUL RASHEED KALWAR, J.--Applicant has been booked in Crime No.41 of 2008 at P.S. Samaro, which was registered on 17-7-2008 at 2325 hours by the S-I.P. Abdul Rasheed Chanio on account of incident having taken place on the same day at 2230 hours. The complainant has stated in the F.I.R. that he along with HC Akbar Ali and constable Mir Khan and Muhammad Hashim went to patrol in the area, in government vehicle, after keeping Roznamcha Entry No.18. At about 2230 hours when they were near Kharoro link road at Kot Ghulam Muhammad Samaro Road they saw applicant/accused on the head light of the vehicle, who was walking quickly. However, police succeeded in catching hold of him. The applicant was holding a plastic bag in his hand, which was taken into custody. The police found four big pieces of charat wrapped in white plastic and six rods of charas wrapped in pink plastic, the total weight of recovered charas was 1040 grams. The police separated in all 10 grams from all pieces of charas and sealed on the spot and remaining charas was separately sealed. Accused was formally arrested and on his personal search Rs.180 was recovered from him. The applicant disclosed before police that he bought charas from Mirpurkhas for onward sell to customers. Mashirnama was prepared on the head light of the vehicle and HC Akbar and PC Mir Khan acted as mashirs and put their signatures. Accused and case property were brought at police station where case under section 9(c) of C.N.S. Act was registered. Applicant moved bail application before the Court of Special Judge, Narcotics, Umerkot vide Bail Application No.338 of 2008 in Special Case No.58 of 2008, but same was rejected by that Court on 8-11-2008, hence this bail application. Before reverting to the arguments in the case, learned counsel for the applicant has drawn my attention towards the remand order dated 17-4-2008 passed by Civil Judge and Judicial Magistrate, Pithoro in Crime No.21 of 2007 under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, which is annexed with the application as annexure `D' and another order of release of the applicant/accused dated 24-4-2008 passed by the same Magistrate in the above mentioned crime number, whereby applicant was released under section 169, Cr.P.C. Learned counsel for the applicant has argued that in fact the applicant was arrested and deprived of his cash and valuable articles by the complainant S-I.P. Abdul Rasheed Chanio and in order to justify applicant's arrest he had falsely connected him in Crime No.21 of 2007, which was proved to be false against the applicant and he was released. Since during the remand, the applicant did not remain silent and he complained against complainant of the present case i.e. S-I.P. Abdul Rasheed Chanio about snatching of cash of Rs.13,700, Rado wrist watch, mobile phone and motorcycle therefore present complainant was in search of pretext to teach him lesson and, therefore, present applicant was falsely implicated in a case. He has further argued that the story of F.I.R. is improbable as the applicant was already known to the complainant. The charas has been foisted upon the applicant and mala fidely 40 grams of charas has been shown above one Kg in order to bring the case within the ambit of section 9(c) of C.N.S. Act. No separate sample from each rod has been taken. Therefore, it cannot be said that all pieces/rods were charas. Due to recorded enmity and complainant's failure to take separate sample from each piece of charas, makes the case of further inquiry in favour of the applicant. Learned State counsel Mr. Bahadur Ali Baloch has frankly stated that from the record it appears that the applicant is victim and he has stated that the case of further inquiry has been made out, therefore, he has no objection for the grant of bail. The remand order dated 17-4-2008 shows that applicant had complained against S-I. P. Abdul Rasheed Chanio before the Magistrate as under:-- "Accused submitted that he had been arrested by S-I.P. Rasheed Chanio, the S.H.O. P.S. Samaro on 15-4-2008 from Government Hospital, Samaro .then he took him to Police Station Boder Farm where he passed 2 nights, today police took him from P.S. Boder Farm. He further submitted that S-I.P. Rasheed Chanio has also snatched cash sum of Rs.13700, Rado wrist watch, Nokia cell phone Model 1600, motorcycle C.D. 70 Model 2005 Reg: No. M.P.A.-3526 and telephone diary. This F.I.R. was lodged on 17-12-2007." The accused/applicant was released from Crime No.21 of 2007 P.S. Pithoro, which also establishes the fact that applicant, was first robbed and deprived of his valuable articles and in order to justify his arrest he was connected with crime No.21 of 2007. The recovery made by the complainant police officer in presence of his subordinate police officials though it is legal, correct and no flaw can be pointed out in view of section 25 of the C.N.S. Act, which excludes the application of section 103, Cr.P.C. but in existence of recorded enmity, such recovery is not confidence inspiring. The charas recovered from accused is marginally above by 40 grams, from the upper limit of section 9(b) of C.N.S. Act and by way of excess of 40 grams the offence has been aggravated to section 9(c) of C N.S. Act. Mala fides against the complainant has been brought on record by the applicant. The mashirs are subordinate to the complainant, therefore, foistation of Charas cannot be ruled out in the circumstances. The recovery being doubtful shall entail into benefit of doubt in favour of the applicant even at bail stage. Learned State counsel has raised no objection. Under these circumstances, I feel that there are no reasonable grounds to believe that the applicant has committed an offence as alleged against him, but there are sufficient grounds for further inquiry into the guilt of the applicant, therefore, applicant is entitled for grant of bail, which is hereby granted to him on furnishing solvent surety in the sum of Rs. One hundred thousand and PR bond in the like amount, to the satisfaction of trial Court. N.H.Q./M-4/K Bail allowed.