1994 P Cr (PLP)

Date of hearing: 2nd February, 1994. By this Miscellaneous Application release of the applicant on bail has been requested. He was refused bail by the learned Sessions Judge, Karachi South, on 15-1-1994.

2. It is case of the prosecution that on 6-9-199 applicant Muhammad Yousuf Bangali was apprehended. He was carrying a "Thela" in his hand. From the "Thela" three packets were recovered. Two of them contained 1,000 grams of white heroin powder each and third one contained 500 grams of the same powder. Ten grams of the powder was taken from each packet and sealed separately. The recovery memo. was prepared by Excise Inspector Azizullah Baloch and attested by Ali Bakhsh and Saleem Khan. The samples were sent for examination to the Chemical Examiner whose report is in positive. However, F.I.R. for the offence was registered at the Excise Police Station, District Karachi South on the same day. After usual investigation the applicant was challaned for offence under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) before the Court. On 15-1-1994 charge for the offence under Articles 3 and 4 of the order was framed against the applicant. However, on the same day bail application moved on behalf of the applicant was rejected by the learned Sessions Judge, Karachi South. The record reveals that on the same day evidence of Ali Bakhsh was recorded by the trial Court. The applicant has moved this application through his counsel for grant of bail.

3. I have heard Sardar Muhammad Ishaque, Advocate, for the applicant and Mr. Habib-ur-Rasheed, Advocate, for the State.

4. The learned counsel for the applicant contended:-- (i) That on 16-8-IW3 Inspector Azizullah Baloch had registered F.I.R. No.12/93 against the applicant and his son Muhammad Saeed at the same police station. The F.I.R. discloses that Muhammad Saeed was apprehended whereas the applicant had absconded. Hence there existed enmity between the applicant and Azizullah Baloch. (ii) On 7-9-1993 Mst. Saeeda wife of the applicant had moved an application regarding the raid conducted by Azizullah Baloch in her house, where she and her husband were maltreated. As no action was taken on her such application she filed a direct complaint on 4-10-1993 before the learned Sessions Judge, Karachi South, which is pending there. (iii) Ten grams of heroin was taken from each packet for examination and sent to the Chemical Examiner, but the Chemical Examiner's report shows that weight of the samples was different than the weight mentioned in the F.I.R., hence the case is full of doubt and benefit thereof is to be extended in favour of the applicant. The learned counsel for the applicant placed reliance on the cases reported in 1979 S C M R 353,. 1989 M L D 3976, 1987 P Cr. L J 2507, 1 990 P Cr. L J 84, 1985 P Cr. L J 2803, 1988 P Cr: L J 2069, 1990 P Cr. L J 26, P L D 1978 SC 256, P L D 1963 Lah. 279, P L D 1972 SC 277 and P L D 1972 SC 81.

5. The learned counsel for the State vehemently controverted the contentions raised by the learned counsel for the applicant and requested for rejection of the bail application.

6. At the very outset the learned counsel for the petitioner took me through the F.I.R. registered at the Excise Police Station. He pointed out that the address of witness Ali Bakhsh in the recovery memo. is different than his address given in the National Identity Card. He further submitted that witness Ali Bakhsh was a stock-witness of the police and had appeared as prosecution witness in more than nine cases. He also pointed out certain infirmities in his deposition recorded before the trial Court. Besides, the learned counsel for the applicant took me through the Chemical Examiner's report showing the quantity being different than ten grams of samples. He also took me through the application moved by the wife of the applicant on 7-9-1993 and the complaint riled by her on 4-10-1993. He then took me through the relevant portions of the quotations mentioned herein above. I have gone through the impugned order, dated 15-1-1994 passed by the learned. Sessions Judge, Karachi South, who had rejected the bail application of the applicant. In last para. of his order the learned trial Judge has observed that the charge has been framed and the case is fixed for hearing on that day. The order does not disclose that evidence of Ali Bakhsh was considered by the trial Court or not. It seems that the bail application has been rejected by the trial Court earlier than recording of the evidence. In such situation it would have been proper that after recording of the evidence of the witness another bail application should have been moved before the trial Court. However, no such objection was taken before me. Hence I am not inclined to discuss the same at this stage. Copy of challan is not available with me, hence it cannot be said that how many witnesses were cited by the prosecution. Besides the facts disclose that at least Muhammad Saleem and Azizullah Baloch are the witnesses to be examined yet. No pre-assessment of their evidence can be made without their deposition. On record before me there is no document available to show that there existed enmity between the applicant and witness Azizullah Baloch. The application and the complaint against Azizullah Baloch had been filed on the next day and after registration of the present case. Mere registration of the case would not be enough to emanate enmity between the applicant and the witness. Thus, quotations 1979 S C M R 353, 1989 M L D 3979 and 1987 P Cr. L J 2507 do not come to the rescue of the applicant.

7. Regarding the quotations relied upon two theories it may be pointed out that the applicant has tried to make out a case of two theories, but mere filing of complaint would not be sufficient to show that a second theory is available on the record. To me such fact may be a defence of the applicant but not a theory. Authority 1989 M L D 3288 thus is of no use to the applicant. Mere pointing out certain infirmities in evidence of P.W. Ali Bakhsh and chemical report would not reflect that the case is full of doubts. Two material witnesses are yet to be examined. As already pointed out their evidence cannot be evaluated before they are examined before the Court. The ground taken in that behalf by the learned counsel for the applicant thus has no force. No doubt, a Court can tentatively assess the evidence of prosecution witnesses. Here evidence of Ali Bakhsh has been recorded only. He supported the recovery of the contraband material from the applicant. I cannot give any direct finding on his evidence as it would prejudice the case of the either party. In such situation I feel that it is not a case where discretion can be exercised by this Court to release the applicant on bail, who is facing trial for offence under Articles 3 and 4 of the order, which carries sentence of transportation for life. The bail application stands rejected. N.H.Q./867/FSC Bail refused.