2021 PLP 70 (YLRN)

AFTAB AHMED GORAR, J.

Through instant bail application, applicant seeks post-arrest bail in Crime No.48/ 2020 Police Station, Ranipur for offences punishable under section 9(c) Control of Narcotic Substances Act, 1997.

2. Precisely, facts of the case are that on 29.05.2020 Police party headed by complainant SIP Manshad Ali Kalwar SHO Police Station, Ranipur during patrolling on link road from Ranipur to Sobhodero, arrested applicant near Ghanghra Goth Moar and recovered polythene shopper from his hand. On checking two slabs of Charas weighing 1700 grams were found therein. The charas allegedly recovered from the possession of accused was sealed on the spot. The complainant prepared such mashirnama of arrest and recovery in presence of PC Ghulam Rasool Wassan and PC Abdul Razzak Golo, brought accused and case property at Police Station where he got registered FIR on behalf of State.

3. Learned Counsel for the applicant contended that nothing was recovered from exclusive possession of the present applicant and Charas has been foisted upon the applicant; that actually no incident has taken place but in fact a dispute arose in between boys of brothery at Government Staff Quarters Khairpur and during scuffle he was severely beaten and maltreated, robbed his motorcycle and then they handed over the custody of applicant to SHO Police Station Shaheed Murtaza Mirani, such news were also published; that the Police demanded illegal gratification from the father of applicant for his release but father of applicant filed application under section 491, Cr.P.C. dated 28.05.2020 before learned Justice of Peace, same was entrusted to learned II-Additional Sessions Judge, Khairpur and during pendency of the said application the police managed this false story and involved the applicant in false narcotic case on 29.05.2020 i.e. next day. By contending so, he prayed for grant of bail.

4. Learned Deputy Prosecutor General has opposed to grant of bail to the applicant/accused on the ground that applicant has failed to point out any enmity with the complainant for foisting the Charas, the recovered substance was Charas, hence applicant is not entitled for grant of bail at this stage. By contending so, he prayed for rejection of application. He relied upon case of Mohammad Noman Munir v. The State and another (2020 SCMR 1257).

5. Heard learned Counsel for the applicant, learned Deputy Prosecutor General for the State and perused the material available on record. Perusal of record reflects that despite having a plenty of time, neither complainant made any serious efforts to associate any private person nor hired any public person or member of staff available at the spot to act as mashir to maintain the transparency pf the alleged recovery from applicant in the bright day. There is no plausible explanation with the police regarding non-association of private persons despite their availability near to the spot of recovery which requires serious consideration. 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., has 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."

6. Admittedly, all PWs are police officials and to procure their attendance is not a difficult task for the prosecution, such demeanor reflects that prosecution is not pursuing the trial actively and delaying the proceedings without any legal justification. There is no apprehension of tampering with prosecution evidence and further detention of applicant in jail will not serve any useful purpose. Indeed, applicant has no criminal record nor previously convicted. Furthermore, after investigation challan has been submitted, hence accused is no more required further. Learned Counsel for the applicant has also drawn my attention towards application under section 491, Cr.P.C. filed by the father of applicant on 28.05.2020 before learned Justice of Peace which clearly shows the mala fide on the part of the Police.

7. Considering the above facts and circumstances, applicant has succeeded to make out a case for grant of post-arrest bail on the ground of further inquiry as contemplated under section 497(2), Cr.P.C. Accordingly, applicant Zohaib Ahmed is admitted to bail subject to his furnishing solvent surety in the sum of Rs.100,000/- (Rupees One lac) and PR bond in the like amount to the satisfaction of trial Court. Bail application stands disposed of. SA/Z-1/Sindh Bail granted.