2017 PLP 332 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned post arrest bail application, applicant Mohammad Zubair has impugned order dated 21.09.2015, passed by the Court of Special Judge (Narcotics) Sukkur, whereby his earlier bail application was dismissed.

2. Relevant facts spelt out from instant FIR are that on 29.08.2015, at 1300 hours, on spy information at Dua-Chowk Sukkur, complainant apprehended the applicant and recovered 09 pieces of Charas weighing 3 kg, and out of which 1000 grams Charas was separated for chemical examination, hence instant FIR.

3. Learned counsel for applicant contended that applicant is innocent and has been falsely implicated in case by the complainant with ulterior motives; that the place of incident is situated in the mid of the City but no public person was associated as mashir; that previously applicant used to run a Gambling-club, against which FIR No.87 of 2012 was lodged by said SHO and subsequently applicant closed said club, on which, Police annoyed and started compelling the applicant to re-start the said Gambling-club and pay monthly amount to which, applicant refused, as he is working as property dealer in the market.

4. Learned APG while going through the contents of FIR as well as mashirnama of arrest and recovery, candidly extended no objection.

5. Perusal of material available on record and consideration of the arguments advanced by learned counsel for the parties, emanate that applicant was arrested on 29.08.2015, at 1300 hours, at Dua-Chowk, Sukkur, which is situated in the heart of City and is a thickly populated and commercial area. Despite receipt of prior information regarding availability of accused with huge quantity of Charas and having ample time, neither complainant has associated any private person to act as mashir nor made any efforts to hire public persons from the place of incident, where usually public remains available round the clock, to maintain the transparency of alleged recovery, which requires serious consideration. It is well settled that the requirements of section 103, Cr.P.C. are mandatory in nature to provide safeguard to the innocent persons from foisting the false recovery by the police to settle their account of ill-will, and its ignorance without any justification would be the violation of such mandatory provisions. In the case of The State v. Bashir and others PLD 1997 SC 408, the honourable Supreme Court while dealing with the issue of applicability of the provisions of section 103, Cr.P.C. observed as under:-- "As regards the above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirement of section 103, Cr.P.C. namely, 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. In this regard, it will suffice to refer to a recent Judgment of this Court in the case of Mushtaq Ahmed v. The State PLD 1996 SC

574. In the case in hand SIP Muhammad Rafique has not been able to give any cogent explanation as to why he was unable to secure two Mashirs from the public. It was further held as under:-- "Where circumstances permit, the evidence may be accepted to prove arrest or recovery but in order to make it credible and authentic the prosecution must explain the circumstances for non-compliance with the provisions of section 103, Cr.P.C. Section 103 read with section 164, Cr.P.C. lays down the mode for recovery and search but, as in certain circumstances a deviation may be made, it would be proper to explain the reasons for such deviation."

6. In the case of Tayyab Hussain Shah v. The State (2000 SCMR 683), the honourable Supreme Court observed as under:- "The requirements of section 103, Cr.P.C. namely 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."

7. Per learned counsel, applicant was previously running a Gambling-club and paying monthly amount to the area police and conversely, FIR No.87 of 2010, under section 5-A, Gambling Act, was lodged against him, therefore, he closed his club and started a new business under the name and style as "Al-Imran Estate Agency" and is dealing with the property. However, SHO Police Station 'B' Section, Sukkur is continuously compelling the applicant to re-start said Gambling-club and on his refusal, instant case has been registered against him by the complainant. Perusal of contents of FIR reflects that neither recovered 09 pieces of Charas were weighed at the spot nor samples separated from all the 09 pieces were weighed at the place of recovery; hence alleged total weight of recovered 09 pieces and weight of samples requires serious consideration. It is well settled that any iota of doubt even at bail stage shall be counted to favour the accused. Applicant is behind the bars for the period more than 02 months but prosecution has failed to examine a single witness to substantiate its case against applicant.

8. Considering the above circumstances, coupled with no objection extended by learned APG, applicant has succeeded to make out a case for grant of bail on the ground of further inquiry as envisaged in section 497(2) Cr.P.C. Consequently, applicant is admitted to bail subject to the furnishing solvent surety in the sum of Rs.100,000/- (Rupees one lac) and P.R. bond in the like amount to the satisfaction of the learned trial Court.

9. The observations made supra are tentative in nature and learned trial Court shall decide the case strictly on merits. SL/M-27/Sindh Bail allowed.