2019 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Applicant Sajjad son of Hafeez, seeks post-arrest bail in case under Crime No. 267/2018, registered under section 6/9-C, C.N.S.A., 1997 of Police Station Jackson, Karachi.

2. Brief facts of the case are that on 14.08.2018 at about 0600 hours, the Complainant ASI Fazalur Rehman of Police Station Jackson, Karachi along with other police officials arrested the above named accused and recovered Charas weighing 1020 grams from his possession, hence this FIR.

3. Learned counsel for the applicant/accused has contended that the accused is innocent and has falsely been implicated in this case with mala fide intention and ulterior motives to show their extra efficiency to their high authorities. He further contended that no any Charas is recovered from the accused and recovered Charas has been foisted upon him. He next contended that the incident allegedly took place in the morning in a populated area but no private witness has been cited in this case to witness the event. Therefore, according to him, section 103, Cr.P.C. would be attracted in this case. In support of his arguments, he has relied upon case of Zarwali and another v. The State (2016 PCr.LJ Note 100).

4. Conversely, learned Additional Prosecutor General has vehemently opposed the grant of bail and has supported the order passed by the learned trial Court. Learned A.P.G has argued that association of private witnesses was not called for. He further submitted that the recovered Charas has been sent for chemical examiner which report is positive and present applicant is involved in other criminal cases, therefore, according to him this applicant is not entitled for bail.

5. I have heard the learned counsel for the parties and also perused the available record.

6. It appears from the record that the case has already been challaned against applicant and the applicant is no more required for investigation. It further appears from the record that the applicant is behind the bars since his arrest i.e 14.08.2018. Almost seven months have been passed but no witness has been examined in this case, as confirmed by the learned counsel for the applicant. Therefore, it appears that when the trial has not yet commenced, then when it will be concluded.

7. It also reflects from the record that the case of the prosecution is based upon the evidence of police officials, therefore, their evidence is required to be thoroughly scrutinized at the time of trial. Since the whole case of the prosecution is based upon evidence of police officials, therefore, there is no apprehension of tampering with prosecution evidence at the hands of applicant.

8. It is reflected from the record that 1020 grams Charas has allegedly been recovered from possession of the accused but as per case law reported in PLD 2009 Lahore 362 (Ghulam Murtaza and another v. The State). Subsequently, the said case law was affirmed by the Honourable Supreme Court of Pakistan in Amar Zaib's case reported in PLD 2012 SC

380. As per this case law, the imprisonment is provided R.I for 4 years 6 months with fine of Rs. 20,000/- or in default S.I for 5 months, thus it appears that the case of the applicant does not fall within the prohibitory clause of section 497, Cr.P.C. Nothing on record that the applicant is previous convict in such like case and it is yet to be determined at the time of trial that whether the applicant has committed the offence as alleged by the prosecution or otherwise, till then, the case of the applicant requires further probe.

9. Now coming to the contention of the learned A.P.G that the applicant is involved in other number of criminal cases, in this regard, I am of the humble opinion that prior to conviction, it is presumed that every accused is innocent. In so far as the case in hand is concerned, despite repeated queries by this Court, learned A.P.G has failed to establish that the applicant was ever convicted in any case registered against him, therefore, he cannot be refused bail merely on the ground that certain other criminal cases have been registered against him. In this regard, I am supported with the case of Shahnawaz alias Chullu v. The State reported in 2013 PCr.LJ 1782.

10. As observed above, the challan against accused has already been submitted in trial Court, where the accused is facing trial, the punishment of the offence under which the applicant/accused has been booked is not more than 4 years and six months, thus it appears that the case against the applicant/accused does not fall within the prohibitory clause of section 497, Cr.P.C.

11. Under these circumstances, the applicant has made out a case for further enquiry as contemplated under subsection (2) of section 497, Cr.P.C., as such applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs. 25,000/- and P.R Bond in the like amount to the satisfaction of the trial Court.

12. Needless to mention here that the observation made herein above are tentative in nature and would not influence to trial Court while deciding the case of the applicant on merits. It is made clear that in case applicant/accused during proceedings before the trial Court misuses the concession of bail, then the trial Court would be competent to cancel the bail of applicant without making any reference to this Court. Since it is a narcotics case, therefore, trial Court is directed to decide the case as early as possible, and no unnecessary adjournment shall be granted to either side. MQ/S-77/Sindh Bail granted.