1999 PLP 921 (MLD)

The facts leading to present application for bail are that applicant/accused Iqbal Yousuf is facing trial under Article 3/4 prohibition (Enforcement of Hadd) Order, 1979 in Sessions Case No.1365 of 1997 before learned Sessions Judge Karachi South, arising out of F.I.R. No. 237 of 1997 dated 25-11-1997 of Police Station Preedy Karachi South. The brief facts of the prosecution case as disclosed in the F.I.R. lodged by sub-Inspector Arshad Hussain Janjua of Crime Branch are reproduced herein below:-- "At this time a statement prepared under section 134, Cr. P.C. and sent by S.I. Arshad Hussain Janjua of Crime Branch was received. The contents of it are as under:-- "Today, 1, S.I. Arshad Hussain Junjua posted at Crime Branch alongwith staff namely P.C. Azram 1287 was busy in patrolling, search of criminals and prevention of crime within the jurisdiction of Police Station Preedy. During search, at 4.15 p.m. on information and pointation of a special spy one accused whose name was known to be lqbal Yousuf son of Haji Muhammad Yousuf was arrested at Magazine Line near Hashimi Centre, Electronic Market near cafe Mirza, in presence of witnesses Javed Ahmed son of Sardar Ali and P.C. Azram B-1287, on search of his black coloured hand bag, one white plastic bag containing four small balls wrapped in black tape were found. Also one white plastic bag wrapped in black tape was found. On opening and checking of four balls and plastic bag, contraband drug heroine weighing 506 grams was recovered. The heroine thus recovered was sealed on the spot and taken into police custody for action and accused Iqbal Yousuf son of Haji Muhammad Yousuf was arrested on the spot for committing offence under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. As the area of incident is within your jurisdiction hence above statement is sent to you through P.C. Waseem Latif 5299 for registering F.I.R. A case against the above accused be registered and copy of F.I.R. and original statement may be sent to me. Presently the accused is in my custody. I am busy in investigation. " Applicant/accused applied for bail before the trial Court but the same was refused by impugned order dated 26-2-1998. Mr. Nuruddin Sarki learned counsel for the applicant/accused has contended that the F.I.R. is completely silent about weighing of the recovered material which makes the police claim of recovery 506 grams heroine powder suspicious; that as per the F.I.R. recovered powder was sealed on the spot which shows that no sample was taken for laboratory test; that the alleged incident occurred in very busy area like electronic market at the busiest time, even then only two witnesses are mentioned, one of them being police constable while the other is a known stock witness appearing in many cases as a prosecution witness; that the. applicant/accused is not a previous convict and he is not likely to abscond. Moreover, he has been falsely implicated in a concocted case. It is therefore, urged that the applicant/accused is entitled to bail. In support of bail-application, affidavits of one Musmat Haleema Bibi and Joseph D' Souza a neighbourer have been filed wherein they have stated that on 24-11-1997 at about 2.00 p.m. two mobiles of crime branch came at the house of applicant/accused wherefrom 10/12 police men got down and they entered in the house of applicant/accused and took him away to an unknown place. Mr. Ashique Hussain Mehar learned counsel for the State has conceded to the grant of bail and he has further stated that so far property is not sent to chemical analyser for laboratory test. I have considered the arguments of Mr. Nuruddin Sarki learned counsel for the applicant/accused and Mr. Ashique Hussain Mehar learned counsel for the State and with their assistance also perused the police record. It is an admitted position that the property i.e. alleged heroin powder was not weighed nor any sample was taken for the purpose of laboratory test. The F.I.R., challan Memo. of recovery and entire police record is silent that the heroin so recovered was ever sent to Chemical Analyser for test and report. Allegedly applicant/accused was arrested during day time from a thickly populated area but not a single independent private person of the locality has been made witness of arrest and recovery though according to prosecution case complainant had advance Spy information. Learned State counsel has also conceded to the grant of bail to the applicant/accused. The up shot of the above discussion is that the case of applicant/accused necessitates further enquiry as contemplated under section 497 (2), Cr.P.C. and he is entitled to bail. By short order dated 30-3-1998 I had granted. bail to the applicant/accused and these are the reasons for the said short order. Before parting with this matter, I would like to make it clear that observations made hereinabove, are of tentative nature and they will not in any manner influence the trial Court while finally adjudicating the case. The trial Court will be at liberty to reach its own-independent finding after evidence is recorded, without in any manner being influenced by whatever is observed hereinabove. H.B.T./I-43/K Bail granted.