2017 PLP 285 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned post-arrest bail application, applicant Syed Subhan Ali @ Badshah has impugned order dated 03.03.2016, passed by the Court of 1st Additional Sessions Judge/Special Judge CNS, Khairpur, whereby earlier bail application preferred by the applicant was declined.

2. Relevant facts spelt out from instant bail application are that SIP Sibghatullah Jatoi intercepted the applicant on 03.01.2016 at 1430 hours, at Mirwah bridge and secured one black shopper from him which was containing 7 Pattis/slabs of Chars weighing 4 kgs. Consequently, recovered Charas was sealed and applicant was arrested, hence instant FIR.

3. Learned Counsel for applicant contended that applicant is innocent and has been falsely implicated in instant crime by complainant with ulterior motives; that HC Illahi Bux Shar had lodged FIR No.224 of 2015, against the applicant and four other persons and allegedly complainant identified him in the light of vehicle, while in the present case, he while acting as mashir, did not identify him; that applicant has been facing his trial in murder case before the Court of learned Additional Sessions Judge, Kandiaro, and regularly appearing there but he was apprehended on 29.12.2015, while said murder case was fixed on 01.01.2016, before learned trial Court, hence one Zaffar Ali Shah moved intimation application before the learned Court regarding his arrest; that subsequently, on 03.01.2016, complainant has lodged instant false FIR while he was already in custody of the police; that at the first instance, applicant was apprehended by Khairpur police but later on his custody was handed over to Faiz Gunj Police where false case was lodged; that due to the old enmity with the area police, applicant was involved by Mehrabpur Police by foisting Chars, but during investigation, said case was concluded to be false; that applicant is not previously convicted in any crime. Learned counsel relied on case of SBLR 2015 Sindh 441 and 2014 Sindh Law Journal 304.

4. While controverting the above submissions, learned APG contended that applicant was apprehended at the spot and 4 Kgs Chars was recovered from his possession and entire recovered substance was sent to the Chemical Analyzer vide letter dated 06.01.2016, and per report recovered contraband was Chars; that applicant had filed a false application regarding his arrest by the police.

5. Heard learned counsel for the parties and perused the material available on record which emanates that that due to the old enmity with the area police, SIP Khalid Dahraj of Police Station Mehrabpur vide Crime No.12 of 2007, involved applicant by foisting Chars weighing 1200 grams, but during investigation, an application was moved to high-ups and investigation was changed and applicant was found innocent and ultimately said case was disposed being false. Indeed, applicant has been facing his trial vide Crime No.22 of 2010, under sections 302, 147, 34, P.P.C. lodged at Police Station Halani which is sub judice before the Court of learned Additional Sessions Judge, Kandiaro. Allegedly, applicant was apprehended by the police on 29.12.2015 and his custody was handed over to Faiz Gunj police where instant FIR was lodged on 03.01.2016. Per diary-sheet of said murder case dated 01.01.2016, applicant could not appear before the Court of learned Additional Sessions Judge and his cousin Zaffar Ali Shah moved an intimation application that applicant has been arrested by police and such Certified True Copy of application is available at page-49 of the file. 6, Perusal of FIR No.224 of 2015 lodged by HC Illahi Bux, under sections 399, 402, 324, 353, P.P.C., reflects that during patrolling at 0200 hours, complainant intercepted applicant and his 4 companions duly armed with lethal weapons and allegedly encounter was held between the culprits and police party and complainant identified applicant in the lights of police mobile, but he was not apprehended by the police at the spot. Conversely, in instant FIR said HC Illahi Bux has acted as mashir of arrest and recovery but in the broad day light, when applicant was apprehended by the police party, said HC Illahi Bux could not identify him and made inquiry about his name and other particulars which requires serious consideration.

7. Applicant was apprehended near Mirwah bridge which is a busy main road but complainant did not make any serious efforts to associate any private person to act as mashir of alleged recovery to ensure the transparency of the recovery of huge narcotics substance. It was incumbent upon the complainant to give preference to private persons available on the spot to act as mashirs of recovery rather than to associate police personnel. In absence of serious efforts and without any plausible explanation by the prosecution, such cases require further consideration. 8 It is well settled that if accused succeeded to prove any kind of animosity or ulterior motive on the part of police for his involvement in the alleged offence, case requires further inquiry irrespective the sensitivity of the offence. In present case, narcotics substance was recovered on 01.01.2016, and same was sent to Chemical Analyzer on 06.01.2016, but there is no explanation that during the said intervening period, recovered substance was kept in safe custody nor there is any plausible explanation for said unexplained delay. It is well settled that delay in transmitting the recovered substance to Chemical Analyzer would not be fatal to the prosecution case but this aspect should also be examined in the purview of the entire circumstances of the case when there are serious allegations of previous animosity and ill-will on the part of the police. At present the investigation has been concluded and applicant is no more required for further investigation to the police, thus further detention of applicant in jail will not serve any useful purpose. Moreover, applicant is behind the bars for more than 4 months but prosecution has failed to examine even a single witness to substantiate the charge and it was not difficult task for the prosecution to procure attendance of witnesses who are police officials and still available at Police Station. There is no apprehension of tampering with the prosecution evidence as PWs are police officials. It is well settled that any slightest benefit of doubt even at bail stage will be counted in favour of accused, as main demand of criminal justice is bail and not jail. In case of Jamaluddin alias Zubair Khan v. The State (2012 SCMR 573), the honourable Supreme Court has observed as under:-- "Accused contended that Chars weighting 4 Kg was recovered from path and not from his personal possession, therefore, there was no possibility of maximum sentence provided for the offence. Court while hearing petition for bail was not to keep in view the maximum sentence provided by statute but the one which was likely to be entailed in the facts and circumstances of the case. Accused had been in jail for 3 months, yet commencement of his trial let alone its conclusion was not in sight, had also tilted scales of justice in favour of bail rather than jail. Petition for leave to appeal was converted into appeal and accused was released on bail."

9. Considering the above circumstances, applicant Subhan Ali alias Badshah has succeeded to make out a case for grant of bail on the ground of further inquiry as contemplated under section 497(2), Cr.P.C., hence applicant is admitted on post-arrest bail subject to furnishing solvent surety in the sum of Rs.300,000/- (Rupees three lacs) and PR bond in the like amount to the satisfaction of trial Court.

10. The observations made above are tentative in nature and learned trial Court shall decide the case strictly on merits. Bail application stands disposed of. SL/S-75/Sindh Bail allowed.