2017 PLP 281 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned post arrest bail application, applicants Rehmatullah Khan and Gul Faraz Khan have agitated the order dated 25.06.2015, passed by learned Special Judge Narcotics, Khairpur, whereby their earlier bail application was dismissed.

2. Relevant facts spelt out from the FIR are that applicants were allegedly arrested by complainant while plying a Truck and during search recovered one theli containing 29 roles cabine which contained Charas weighing 5000 Grams; hence instant FIR.

3. Learned counsel for the applicants contended that applicants are innocent and have been falsely implicated in instant case by complainant with ulterior motive; that Investigating Officer submitted final report under 'A' Class, which was not accepted by learned Special Judge, Narcotics, Khairpur and directed the Investigating Officer to submit Challan; that subsequently an application was moved to DIG, Sukkur for reinvestigation of the case and during re-investigation, applicants were again found innocent; that applicants are behind the bars since 24.01.2015 but prosecution has not concluded the trial. In support of such contentions, learned counsel relied on 2004 PCr.LJ 129 and 2007 PCr.LJ 139.

4. Learned APG opposed the submissions made by learned counsel for applicants and contended that applicants cannot take benefit of re-investigation at this stage and they may place all the relevant material before the learned trial Court. In support of such contention, he relied upon the case law reported as Samiullah Khan and another v. The State (1999 PCr.LJ 1113).

5. Perusal of material available on record and consideration of arguments advanced by the parties supported by case law emanate that allegedly applicants were apprehended on 24.01.2015 by complainant and 5000 grams Charas was recovered from their truck; however, Investigating Officer after completing investigation found applicants innocent and submitted report for disposal of the case under 'A' Class, which was placed before the learned Special Judge, Narcotics, Khairpur but the learned Court vide order dated 07.02.2015 did not accept said summary and directed the Investigating Officer to submit Challan within 3 days. Subsequently, one Syed Nizamuddin Aga moved an application on 27.01.2015 to DIG, Sukkur for re-investigation of the case, claiming the applicants to be innocent and DIG Sukkur directed Inspector Ghulam Ali Jumani to conduct re-investigation of the crime and submit report, who after re-investigating the matter thoroughly, submitted a comprehensive report on 20.05.2015 and came to the conclusion that police had demanded illegal gratification from both the applicants and due to non-payment of money, they were wrongfully booked in instant case. Investigating Officer further recommended to initiate departmental proceedings against complainant and other delinquent police officials.

6. In the case of Syed Ghulam Mustafa (supra), it was observed as under:-- "The applicant was apprehended in the Town of Moro in broad daylight, but no person from public had been cited as witness. Provisions of section 25 of the Control of Narcotic Substances Act, 1997, did not relieve investigators of their duty of conducting investigation in a fair and transparent manner and producing the best of available evidence. Court of law had to apply its independent mind to the facts and circumstances of each case and was not bound to follow the ipse dixit of police. Version of Assistant Sub-Inspector of Police, which was not supported by any person from public, stood falsified by the subsequent report of his own superior officer i.e. the Deputy Superintendent of Police who, on enquiry, found that the applicant had been falsely implicated. Assistant Advocate General, in, such circumstances, had rightly conceded that the case was fit for the grant of bail. In absence of reasonable grounds for believing accused guilty of offence, accused was admitted to bail".

7. In the case of Rana Muhammad Anwar (supra), it has been held as under:-- "During pendency of trial against accused, father of accused filed application to Deputy Inspector General of Police wherein he stated that case against his son was false and requested for re-investigation of the case of his son through an independent, impartial and straightforward Police Official. Application was accepted and re-investigation of the case was ordered and Police Officer who re-investigated the case after fullest evaluation of facts and circumstances of the case concluded that accused was innocent and in supplementary challan placed the accused in Column No.2. Deputy Inspector General agreeing with re-investigation, ordered to proceed against Assistant Sub-Inspector of Police who had earlier investigated the case and also ordered to submit the challan against him and to place him in Column No.3 of Supplementary Challan. Trial Court proceeded against the said Police Officer. Validity. No legal bar existed on re-investigation of the case even after submission of final report under section 173, Cr.P.C. and police was competent under law to carry out fresh investigation and submit its report to the Court. Order passed by Deputy Inspector General for re-investigation of case, was perfectly legal and did not call for interference. Crime of fabricating false evidence and false case against innocent persons had become dangerously frequent in the country, which of course had to be taken notice of by the Courts and senior most officials".

8. The case law cited by the learned APG is quite distinguishable as in a cited case Investigating Officer after completion of investigation submitted Challan before learned trial Court which was accepted and subsequently an application was moved to Inspector General Police for re-investigation as such Court has not considered such report.

9. Undeniably, allegations leveled by the complainant in F.I.R were corroborated by eye-witnesses and mashirs, have been controverted by Investigating Officer, who initially investigated the crime and declared accused to be innocent, subsequently, matter was re-investigated through an impartial and independent police officer who re-investigated in fair and transparent manners and maintained findings of first Investigating Officer and declared accused as innocent as they have been implicated falsely by complainant and recommended departmental action against delinquent officials. Indeed, when two Investigating Officers opined that accused persons are innocent and such summery report for disposal of case under cancel class was submitted before the Concerned but same was not accepted and believed by the Court, but same has created a reasonable doubt regarding the genuineness of the averments of FIR. It is well settled that any benefit of doubt even at bail stage shall be counted in the account of accused irrespective of sensitivity and heinousness of the crime. Applicants are behind bar since 24.01.2015, but prosecution has failed to examine a single witness to substantiate the charge against the applicants and no one can be put behind the bar for an indefinite period.

10. Considering the above circumstances, applicants have succeeded to make out a case for grant of bail on the ground of further inquiry as envisaged under section 497(2) Cr.P.C. Consequently, the applicants are granted bail subject to their furnishing solvent surety in the sum of Rs.100,000/- each and P.R. Bond in the like amount to the satisfaction of the learned trial Court.

11. The above observations are tentative in nature and shall not influence at the time of trial. SL/R-1/Sindh Bail allowed.