2010 P Cr (PLP)

AHMED ALI SHAIKH, J.-- Applicant seeks post-arrest bail in Crime No.81 of 2009 of Police Station Khanwahan for offence under section 9(c) of C.N.S. Act, 1997. Brief, but relevant facts of the prosecution case are that on 7-7-2009 at 1815 hours, complainant S.-I.P. Imran Awan, S.H.O. of Police Station Khanwahan along with his subordinate staff, namely, P.Cs. Shahid Hussain, Pervez Ahmed, Azizullah Kalhoro and Amir Ali while checking the vehicles, apprehended present applicant from Kutub Khush Mori. It is a case of prosecution that the applicant was coming on motorcycle and after seeing the police party he tried to turn back, but his motorcycle slipped. He tried to flee but police arrested him being suspect. In presence of Mashirs P.Cs. Shahid Hussain and Pervez Ahmed, the complainant made his physical search and secured two pieces of Charas wrapped in plastic from his side pocket and from his front, pocket, a purse of red colour containing NIC and five currency notes of Rs.100. Complainant further secured plastic bag from tool box of motorcycle in which five pieces of Charas were lying. On weight, total Charas became 1100 grams, out of the said Charas 100 grams were sealed separately for chemical analysis and 1000 grams sealed separately. Motorcycle was also taken into possession under S. 550, Cr.P.C. On enquiry, applicant disclosed that he was coming to sell the Charas. P.C. Shahid Hussain disclosed that Qurban and Mashooq Siyal are sons of the applicant, who are proclaimed offenders. Such Mashirnama was prepared at the spot and applicant along with contraband Charas was brought at Police Station, where case was registered. Bail application moved before the trial Court was turned down by learned Special Judge (C.N.S.) Naushehro Feroze vide order dated 12-8-2009. It is inter-alia contended by the learned counsel, for the applicant that the applicant is innocent and has nothing to do with the alleged offence. He further stated that the contraband Charas has been foisted upon the applicant by the complainant as on the day of recovery exchange of hot words had taken place between the applicant and complainant. He went on to State that PC-Shahid Hussain, who is one of the Mashirs of arrest and recovery as well as PC Amir Ali and PC Azizullah, eyewitnesses of the recovery did not support the contents of the F.I.R. Per learned counsel the said police personnels, who happened to be the subordinates of the complainant, were examined by Investigating Officer, in their respective 161, Cr.P.C. statements they categorically stated that the applicant has been implicated in this case on the day of recovery, exchange of harsh words had taken place between the applicant and complainant. They further stated that at the time of his arrest the applicant was not found in possession of Charas. On the other hand, learned State Counsel half heartedly opposed the bail application on the sole ground that this is a fresh case and it is yet to be determined at the trial whether applicant has been falsely implicated or Charas has been foisted upon him. Heard learned counsel for the applicant and APG for the State and also perused the case record. It is an admitted fact that P.C. Shahid Hussain, Mashir of arrest and recovery as well as PCs Amir Ali and Azizullah, who have been cited as P.Ws. in the charge-sheet did not corroborate the prosecution case. On the contrary they stated in clear terms that the applicant is innocent and has been falsely implicated by the complainant. Record further reveals that due to registration of this false case, complainant has been reverted from S.-I.P. to A.S.-I.P. and suspended by RPO, Sukkur Region on 19-8-2009. Not only this but the SP (Investigation) also recommended for disposal of the case as cancelled class, but learned Magistrate did not concur with the police opinion and on his direction challan was submitted. For the purpose of bail, law is not to be stretched in favour of prosecution and benefit of doubt, if any, arisen must go to the accused even at bail stage. In this report, I am fortified by PLD 1972 SC

277. From the above position, I am of the opinion that there are no reasonable grounds to believe that the applicant is guilty of alleged offence, but on the contrary it appears that his case falls within the ambit of `further enquiry'. The applicant has succeeded to make out a case for bail. I, therefore, allow this bail application and admit the applicant on bail subject to his furnishing solvent surety in the sum of Rs.30,000 (thirty thousand rupees) with P.R. bond in the like amount to the satisfaction of the trial Court. These are reasons of my short order dated 28-9-2009, whereby applicant was admitted to bail. N.H.Q./M-222/K Bail allowed.