2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned post-arrest bail application, applicant Rajab Ali Kerio has impugned the order dated 28.12.2015 passed by the learned Special Judge-II (CNS) Karachi, whereby his earlier bail application was declined.

2. Relevant facts spelt out from instant application are that complainant intercepted applicant on main road while riding on motorcycle and recovered 2 kg Charas concealed in a blue shopper, hence instant FIR.

3. Learned counsel for applicant contended that applicant is an innocent and has been falsely implicated by the complainant for ulterior motive; that per FIR the incident took place at 0100 hour of 05.10.2015; that per Roznamcha Entry Nos.3, 2 dated 06.10.2015 at 1930 hour, incorporated at P.S. SIU/CIA, Investigating Officer left for inspection of place of wardat, while mashirnama of place of wardat was prepared at 1920 hour; that entire documents were prepared at PS; that applicant is behind the bars since the day of his arrest but prosecution has failed to conclude the trial with mala fide intention. 5(sic.) Learned APG has vehemently contended that applicant was apprehended at the spot and 2 kg Charas was recovered from his possession and entire recovered substance was transmitted for Chemical Examination and per Chemical Examiner's report, the recovered substance was Charas.

6. Heard arguments advanced by learned counsel for applicant as well as learned A.P.G. and perused the material available on record which emanates that on 05.10.2015 applicant was apprehended at main road near Gatar Bhagicha, which is a thickly populated area but complainant neither associated any private mashir nor made any serious efforts to hire any public person to act mashir to maintain transparency of the alleged recovery nor furnish such explaination. Perusal of averments of FIR further emanates that recovered substance was weighed at the spot and total weight was presumed to be 2 kg. Likewise no mashirnamna of recovery of narcotic substance was prepared at the spot, thus these aspects which also requires serious consideration. In case of Jamaluddin alias Zubair Khan v. The State (2002 SCMR 573), the honourable Supreme Court has enlarged the accused on bail in case of recovery of 4 kg Chars when prosecution has failed to conclude the trial within three months. It is well settled that any iota of doubt if arisen even at bail stage, shall be counted in favour of accused. Admittedly, applicant is behind the bars for more than eight months but prosecution has failed to examine even a single witness to substantiate the charge against applicant, though it was not a difficult task to procure the attendance of PWs who are police officials and posted at same police station, which reflects that prosecution is not interested for early disposal of this case.

7. Considering the facts and circumstances referred supra, applicant has succeeded to make out his case for gran of bail on the ground of further inquiry as contemplated under section 497(2), Cr.P.C. Consequently, applicant is admitted on post arrest bail subject to his furnishing a solvent surety in the sum of Rs.100,000/- with PR bonds in the like amount to the satisfaction of the trial Court. The observations made supra are tentative in nature, and learned trial Court shall decide the case strictly on merits. WA/R-27/Sindh Bail granted.