2005 P Cr (PLP)

Date of hearing: 24th February, 2005. These two bail applications arise out of two different F.I.Rs. viz. No.2 of 2005 and 3 of 2005 registered at Police Station Zaman Town, Karachi East, however, since the recovery in both the cases has been effected at ,the same time and place by a single Mashirnama, we are therefore, disposing of both the applications vide this order. According to the prosecution case, both the applicants namely, Haji Abdul Manan and Abdul Jabbar were apprehended at the place of incidence upon prior spy information viz. Rahimabad Chowk, Korangi at Karachi. From the search of the applicants one slab of Charas each was recovered from them which was hidden beneath their shirts in the Waistbands of their Shalwars. According to the prosecution, the weight of the Charas was approximately 1 Kg. each. On the basis of the foregoing facts, learned counsel for the applicants submits, firstly; that the arrest was made by an A.S.‑I. whereas under section 21 of the C.N.S. Act only a Sub‑Inspector is authorized to arrest the accused. He has placed reliance on the case's reported in Mumtaz Ali v. The State 2001 YLR 1847 (Karachi), Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and unreported order dated 4‑12‑2000 passed by this Court in Criminal Bail Application No. 1238 of 2000 entitled Arif Khan alias Wajid Khan v. The State. Secondly, learned counsel has contended that according to the re -investigation ordered in this case, it has been established that the accused were actually arrested from Teen Hatti area in Liaquatabad and not from Korangi area so also no departure of the police party has been shown in the Roznamcha of the relevant police station in connection with the raid. Consequently according to the learned counsel, both, these aspects of the matter cause sufficient doubt regarding arrest and recovery. Again in the re‑investigation report, some of the Mashirs are stated to have given conflicting statements. Finally, learned counsel has submitted that the memo. of recovery shows the weight of the Charas to be approximately 1 Kg. which could be more or less and hence at this stage, it cannot be said as to whether the prohibitory clause would be attracted. In this event, this doubt should be resolved in favour of the accused persons. Finally, per learned counsel some of the witnesses examined by the police have stated that the arrest of the accused was due to enmity. Learned A.A.‑G., on the other hand, has relied upon the decision of the Honourable Supreme Court in the case of Muhammad Hanif v. The State 2003 SCMR 1237 wherein it was held' that where an A.S.‑I. was incharge of the police station, then the raid conducted and the investigation made by the said Police Officer in violation of the provisions of sections 21 and 22 of the Act, 1997 would not vitiate the trial and at the most such an irregularity could be cured under section 537, Cr.P.C. as it had caused no prejudice to the accused. Regarding the second investigation report; the learned A.A.‑G. has submitted that this is not admissible in 'evidence and hence the contents thereof cannot be considered at this stage also. Finally, the learned A.A.‑G. submitted that the mere fact that the recovery in question may not attract the prohibitory clause, is by itself not a ground for grant of bail. We have heard the learned counsel for the applicants as well as the learned A.A.‑G. In our opinion, in the circumstances of the case‑ where the A.S.‑I. was incharge of the concerned police station, the raid conducted by him and thereafter investigation in the matter, particularly when prima facie no prejudice has been caused to the accused, cannot be made al ground for bail in the light of Muhammad Hanif v. The State (supra). Although learned counsel has submitted that the arrest and the recovery was made at the instance of one Ghulam Hussain who is the rival of the accused, however, no proof in support of this assertion has been placed before us at all. Having said much, we are also conscious of the fact that during the re‑investigation of the matter some doubt has been caused about the place of arrest and also regarding actual departure of the police party from the concerned police station. So also it would be seen that the weight of the Charas is stated to be approximately 1 Kg but the entire quantity was not sent for chemical analysis and weighment etc., to confirm whether or not the weight of the allegedly recovered Charas was above 1 Kg. or less. For the foregoing reasons, this is a case for further enquiry entitling the accused/applicants to the concession of bail. The applicants shall be released on bail provided they submit surety in the sum of Rs.2,50,000 each to the satisfaction of the learned trial Court along with P. R. bond in the like amount. Both the bail applications stand disposed of. H.B.T./A‑188/K Bail granted.