2019 PLP 45 (YLRN)

ABDUL MAALIK GADDI, J.

Through this order, I intend to dispose of this bail application arising out of Crime No.231 of 2017 under Section 6/9(c) of the CNS Act, 1997 of Police Station Rizvia Society, Karachi. It may be mentioned here that in this crime this is second bail application filed on behalf of applicant before this Court. Prior to filing this bail application, applicant/accused was filed Criminal Bail Application bearing No.89 of 2018, which was dismissed being not pressed with directions to the trial Court to conclude the trial expeditiously preferably within a period of two months. It was further ordered that applicant may file fresh bail application if trial court fails to conclude the trial within stipulated time, if he so advised. Trial has not been concluded, therefore, applicant/accused has filed second bail application before trial Court, which was too dismissed vide Order dated 13.04.2018, hence, this bail application.

2. The allegations against the applicant/accused is that on 15.09.2017 at about 1300 hours, complainant ASI Burhanuddin of Police Station Rizvia Society along with his staff apprehended the above named accused and from his possession, he recovered 2200 grams of Charas in presence of mashirs. After observing required formalities on the spot, the accused along with recovered Charas was brought at police station, where FIR was lodged.

3. Learned counsel for the applicant inter alia argued that this is second bail application filed on behalf of applicant. Per learned counsel, prior to filing this bail application, applicant/accused was filed Criminal Bail Application bearing No.89 of 2018 before this Court, which was dismissed as not pressed with directions to the trial Court to conclude the trial expeditiously preferably within a period of two months. It was further ordered that if trial Court fails to conclude the trial within stipulated time, then applicant was allowed to file fresh bail application before trial Court, if he so advised. But despite of clear directions of this Court, trial has not been concluded, hence, second bail application was filed before trial Court which was meet the same fate. Per learned counsel, the applicant/accused is behind the bars for the last ten months without any substantial progress in trial; that the applicant/accused is innocent and has been falsely implicated in the present case; that there is no reasonable ground to believe that the applicant/accused has committed offence; that the place of recovery was though a thickly populated area where many people were present but despite of this fact complainant did not bother to make any independent witness of the alleged incident to witness the event. He further contended that if the prosecution is succeeded to establish the case against the applicant/accused, the punishment as provided as per the rule laid down in the famous case of 'Ghulam Murtaza and another v. The State' reported in PLD 2009 Lahore 362, is R.I. five years and six months, which does not come within the ambit of prohibitory clause of Section 497(1), Cr.P.C. therefore, he prays for grant of bail.

4. In contra, learned Deputy Prosecutor General appearing for State has opposed this bail application on the ground that the name of the applicant is appearing in FIR with specific allegations and that recovery of 2200 grams charas was effected from his possession in presence of mashirs, who have no inimical terms with him, prima facie shows the involvement of the applicant in this case, which appears to be serious and heinous in nature. In support of his contentions, learned DPG has placed his reliance in the case of Nisar Ahmed v. The State and others reported as PLD 2016 Supreme Court 11.

5. I have heard the learned counsel for the applicant/accused as well as learned D.P.G. for the State, perused the documents available on record.

6. It appears from the record that this case is based upon spy information but police did not bother to associate any private person with them to witness the arrest and recovery proceedings. The case has been challaned and the applicant/ accused is no more required for investigation. The whole case of the prosecution based upon the evidence of the police officials. No doubt the evidence of the police officials are as good as private persons, but when the whole case of the prosecution is rest upon the evidence of the police officials, therefore, their evidence is required to be minutely scrutinized at the time of trial whether the offence has been committed by the applicant/ accused in a fashion as alleged by the prosecution in the FIR or otherwise, till then, the case of applicant requires probe. It reveals from the record that despite of directions of this Court in Criminal Bail Application No.89 of 2018 trial Court has not concluded the trial within specified period, even no substantial progress has been made in this case. Accused is behind the bars for the last ten months, if the trial Court proceeded trial with such speed that would not be concluded in near future. The prosecution has unable to give any explanation for non-compliance of this Court order. I have gone through the case of Muhammad Aslam v. The State reported as 1999 SCMR 2147, where the Hon'ble Supreme Court of Pakistan has been held as under:- "Despite directions of High Court trial against the accused had not been completed by the Trial Court within the specified period

Prosecution was unable to give any explanation for non-compliance of the said order of High Court

Petition for leave to appeal was converted into appeal which was allowed and the accused was admitted to bail in circumstances." I have also gone through the case of Riaz ur Rehman v. The State reported as 2017 PCr.LJ 1661 [Peshawar], wherein it has been held as under:- "Accused was behind the bars for one and half year and directions were issued to Trial Court twice to conclude the trial but even the lapse of more than a year, Trial Court had examined only one witness

If the Trial Court proceeded trial with such speed that would not be concluded in a near future

High Court directed to release the accused on bail in circumstances." As observed above, the applicant is behind the bars for the last ten months without any substantial progress in trial and despite of directions of this Court, trial Court has not concluded the trial within stipulated period. Learned APG is unable to give any explanation for non-compliance of this Court order. When the above legal and factual position confronted to learned DPG, he has no plausible answer with him. Nothing on record to show that applicant is previously convicted in such like cases or he ever indulged in such type of activities. Here in this case allegedly 2200 grams of Charas was recovered from the applicant/accused and in view of the rule laid down by the Honourable Lahore High Court in the case of 'Ghulam Murtaza and another v. The State' reported in PLD 2009 Lahore 362, which was subsequently affirmed by the Honourable Supreme Court in the year 2012, the sentence that could be awarded in the present case if established by the prosecution is R.I. five years and six months, which admittedly does not fall within the prohibitory clause of section 497(1), Cr.P.C. Since the case of the applicant/accused does not fall within the prohibitory clause of section 497(1), Cr.P.C., therefore, I admit the present applicant/accused to bail, subject to furnishing solvent surety in the sum of Rs.50,000/- [Rupees Fifty Thousand only] and PR Bond in the like amount, to the satisfaction of trial Court.

7. Needless to mention here that observations, if any, made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicant/accused 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 after notice and hearing to the parties. Since it is an narcotics case, therefore, trial Court is directed to proceed the case expeditiously and decide the same, preferably, within the period of six months after receipt of this order and its compliance report be submitted to this Court through MIT-II. MQ/S-18/Sindh Bail allowed.