ALI NAWAZ (Applicant) VS THE STATE (Respondent)

ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Cr.B.A.No.S- 1141 of 2018

DATE ORDER WITH SIGNATURE OF JUDGE

Mr. Muhammad Sharif Siyal, Advocate for applicant. Ms. Sobia Bhatti, A.P.G. for the State.

ZULFIQAR AHMED KHAN, J:- Through instant bail application, applicant Shah Jahan seeks post arrest bail in Crime No.186/2018 registered at Police Station B-Section Nawabshah for offence u/s 9(c) of CNS Act, 1997.

2.Precisely relevant facts are that on 19.10.2018, complainant SIP Jan Muhammad Mashoori of PS B-Section, Nawabshah left Police Station for the purpose of patrolling and during patrolling when they reached near Jam Sahib Road, the complainant received spy information that present applicant was selling charas at the dirty water ponds linepar Nawabshah. The complainant also requested for help from SIP Ghulam Awais SHO PS Airport and SIP Zakir Hussain of PS A-Section, Nawabshah. Thereafter, they all reached at the pointed place and saw the present applicant standing there having a plastic shopper in his hand. The present applicant was apprehended and during search recovery of 06 big and small pieces of charas total 2000 grams charas and cash of Rs.230/- was affected from his possession. The accused and case property were brought at Police Station. FIR was registered against the applicant. After usual investigation he was sent up for trial.

3.Learned counsel for the applicants inter alia contends that applicant is innocent and has falsely been implicated in the case in

hand on account of a matrimonial dispute; that the recovery affected from the applicant is 2000 grams charas; chemical report is delayed by 14 days; no independent person has been cited as witness though it is the case of spy information; applicant has no previous criminal record; investigation is completed; all the prosecution witnesses are police officials hence there is no question of tampering with the prosecution evidence. He lastly contended that applicant is behind the bar since last about 04 months. In support of his contentions, learned counsel has placed reliance on the cases reported as 2012 SCMR 573, SBLR 2014 Sindh 1514, 2002 P.Cr.L.J 1086 and 2018 MLD 129.

4.Learned A.P.G. opposed this application on the ground that this is a crime against society and a huge quantity of charas has been recovered from the possession of applicant/accused.

5.After careful consideration of contentions of learned counsel for the parties and meticulous examination of available record, alleged contraband narcotics is 2000 grams charas; there is no mention in the FIR that from where the police party brought the digital scale and what type of digital scale for making weight of the recovered charas. No private witnesses have been associated to witness the recovery proceedings though the complainant party had prior information about the availability of the present applicant/accused at the place of incident and even the complainant party least could have made an attempt to associate private mashirs from the place of incident; 06 big and small pieces of charas were alleged to have been recovered from the possession of applicant/accused but it not mentioned in the FIR that what was the weight of each piece; there is a delay of 14 days in sending the recovered charas for chemical examination which (delay) would also be required an explanation by prosecution that whether the said charas was kept in safe custody during this intervening period of 14 days hence making a room for further probe. Applicant has been in continuous custody since last about 04 months without any progress in

the trial and is no more required for any purpose of investigation nor the prosecution has claimed any exceptional circumstance which could justify keeping the applicant behind the bars for an indefinite period. Moreover, prosecution has not claimed that the applicant is previously involved in same nature of the cases. All the prosecution witnesses are police officials hence there is no question of tampering with the evidence. Looking to the quantity of recovered charas from the accused at bail stage it cannot be said that maximum punishment provided in the statute for the alleged offence shall be awarded to the applicant/accused. Therefore, the case against the applicant/accused requires further inquiry.

6.It is an admitted position that case has been challaned, applicant is no more required for investigation and admittedly the case of prosecution based upon the evidence of police officials, therefore, no question thus arise for tempering with their evidence at the hands of applicant. Since whole of the case of prosecution rests upon the evidence of police officials, therefore, their evidence is required to be minutely scrutinized at the time of trial whether offence as contained in the F.I.R, allegedly committed by the applicant in a manner as narrated by the complainant or otherwise. It also appears from the record that complainant SIP Jan Muhammad Mashori has also acted in this case as Investigating Officer. Although the evidence of the complainant / police official who himself conducted investigation is also admissible in evidence yet for the safe administration of justice, he should have entrusted the investigation to some other police officer, so that nobody raise any finger on such evidence, therefore, on this ground and also it is yet to be determined by the trial Court whether investigation carried out by the complainant himself can safely be relied upon or otherwise. In this context I am fortified by the case of Raheel Abbas Vs. The State (2018 P.Cr.L.J 1307). Therefore, keeping in view the peculiar facts and circumstances of the instant case;

continuous detention of about 04 months as well minimum punishment, which normally may be considered while dealing with bail plea, I am of the view that scale tilts in favour of the applicant for grant of bail as no useful purpose is likely to be served with further detention of the applicant pending determination of his guilt.

07.Keeping in view the above given circumstances, prima facie, applicant has succeeded to bring his case within the purview of subsection (2) of section 497 Cr.P.C, for this reason, he is admitted to post arrest bail subject to his furnishing solvent surety in the sum of Rs.50,000/-(Rupees fifty thousand) and P.R Bond in the like amount to the satisfaction of trial the Court.

08.It is pertinent to mention here that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced upon by any of them while deciding the case of the applicant on merits.

JUDGE

Tufail/PA