2016 PLP 140 (YLRN)

Ss. 497 & 103

Control of Narcotic Substances Act (XXV of 1997), S. 9(c)

Possession of narcotic drugs etc.

Bail before arrest, grant of

Further inquiry

Mashir/ recovery and arrest witnesses, requirement of

Effect

Place of arrest of the accused as mentioned in the FIR was different from the one described in Mashirnama of arrest and recovery, which, being a matter of further inquiry, required serious considerations

Accused was allegedly apprehended in bright day; whereas, neither any private person was associated nor any person from adjacent place was taken to act as Mashir to maintain the transparency of the alleged recovery

Accused was behind bars for eight months, but the prosecution had failed to conclude the trial

Accused had no previous criminal record

Section 9 (c) of Control of Narcotic Substances Act, 1997 provided punishment up to fourteen years if quantity of recovered substance was less than ten kilograms

Considering the quantity of the recovered narcotics from the accused and the different places of recovery, there was no possibility of awarding the maximum punishment provided for the offence

Bail application was accepted accordingly. [Paras. 6, 7, 8, 9 and 10 of the judgment] Raja Khan v. The State 2014 SLJ 1018 and Ali Hassan alias Hassan v. The State 2014 YLR 188 ref. State v. Bashir and others PLD 1997 SC 408 and Jamaluddin alias Zubair Khan v. The State 2012 SCMR 573 rel.

S. 103

Search to be made in presence of witnesses

Such requirement of S. 103, Cr.P.C. was mandatory. [Para. 7 of the judgment] State v. Bashir and others PLD 1997 SC 408 rel.

S. 497

Bail

Quantum of sentence

Relevance

Court, while dealing with question of bail, should consider the aspect of minimum sentence for the alleged offence as provided in the Schedule. [Para. 9 of the judgment] Jamaluddin alias Zubair Khan v. The State 2012 SCMR 573 rel. Haji Shamsuddin Rajper for Applicant. Sardar Ali Shah, A.P.G. for the State. ORDER SHAHNAWAZ TARIQ, J.

Through captioned post-arrest bail application, applicant Din Mohammad has impugned order dated 07.08.2015, passed by the Court of learned Special Judge (Narcotics), Khairpur, whereby his earlier bail application was declined.

2. Relevant facts spelt out from instant application are that complainant apprehended the applicant at Link Road near Village lmdad Khiloo Ji Mirwah and recovered 3500 grams Charas, hence instant FIR.

3. Learned counsel for applicant, inter alia, contended that applicant is innocent and has been falsely implicated by the complainant; that applicant has been plying Taxi from Karoondi to Pacca Chang and on several times his Taxi was called by complainant and co-mashir namely Illahi Bux, however, on his refusal to give Taxi to police without fare, he has been falsely involved in the instant case; that applicant is behind the bars for more than 08 months but prosecution has failed to conclude the trial; that applicant never remained involved in any other case in past. Learned counsel relied on the case of Raja Khan v. The State (2014 S.L.J 1018) and Ali Hassan alias Hassan v. The State (2014 YLR 188).

4. Learned APG contended that per chemical examination report recovered substance was Charas, hence applicant is not entitled for bail.

5. Heard the arguments advanced by learned counsel for the parties supported with case law and examined material available on record.

6. Perusal of material emanates that per the averments of FIR, complainant during patrolling apprehended the applicant near village Imdad Khiloo Ji Mirwah, while in mashirnama of arrest and recovery, the place of arrest has been mentioned near Otaq and village of Ghousal Shar. Consequently, such controverting stances of prosecution regarding alleged recovery of Charas from two different places have made a clear case of further inquiry which requires serious consideration.

7. Indeed, applicant was apprehended in bright day near Otaq and village of Ghousal Shar or near from village Imdad Khiloo Ji Mirwah, hence availability of private persons could not be ruled out. Neither complainant made any serious efforts to associate any private person nor hired any public person from adjacent Otaq and village to act as mashir to maintain the transparency of the alleged recovery from applicant. There is no cogent explanation with prosecution regarding non-association of private persons despite of their availability adjacent to the spot of arrest and recovery which also requires serious consideration. In the case of State v. Bashir and others, PLD 1997 SC 408, the honourable Supreme Court has observed that the requirement of section 103, Cr.P.C. 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.

8. After investigation Challan has been submitted, hence accused is no more required for investigation and his further detention in the jail will not serve any useful purpose. It is also important that the applicant is behind bars since 08 months but prosecution has failed to conclude the trial and it was not difficult task for the prosecution to procure attendance of two witnesses who are police officials and available at Police Station. There is no apprehension of tampering with prosecution evidence as PWs are police officials and further detention of applicant in jail will not serve any useful purpose. Applicant has no criminal record nor was previously convicted. "Accused contended that Charas 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 has not 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."

10. Considering the above facts and circumstances, applicant has succeeded to make out his case for grant of post-arrest bail on the ground of further inquiry as contemplated under section 497(2), Cr.P.C. Consequently, applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs.100,000/- (Rupees One lac) and PR bond in the like amount to the satisfaction of trial Court.

11. The observations made above are tentative in nature and learned trial Court shall decide the case strictly on merits. Bail application stands disposed of in the above terms. SL/D-6/Sindh Bail accepted.