Mirzo (Applicant) VS The State (Respondent)

ORDER SHEET

ORDER

SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr. Bail Appl. No. S- 342 of 2009

DATE ORDER

WITH SIGNATURE OF JUDGE

Mr. Ali Muhammad Dahri advocate for applicant

Syed Meeral Shah DPG

The applicant has applied bail through this application in Crime No. 54 of 2009 registered at police station Qazi Ahmed under section 9-b and 9-c of CNS Act 1997.

According to the allegations, police party was on patrolling in search of absconders when behind the wall of a graveyard they saw two persons coming from southern side. The police party had gone there on a spy information. They suspected these two persons and stopped their vehicle and captured one of them after encricling them. It is alleged that one person out of two, namely Ahmed Khaskheli ranaway from spot whereas present applicant was arrested, it is alleged that 1100 grams of charas was recovered from him out of which 100 grams was sent to chemical examiner and remaining 1000 grams was also sealed separately. The allegations in the FIR also suggest that other person threw away a thelli containing 300 grams of charas. In view of above, the case was registered. It is also mentioned in the FIR that one police official namely ASI Mumtaz Chandio pointed out that present applicant is required in Crime No. 52 of 2009 registered at police station Qazi Ahmed under section 324, 402, 399,

353 PPC.

Learned counsel for the applicant argued that when police party left from police station they did not have any knowledge that they would arrest the present applicant for selling and possessing the charas and therefore, they were not expected to carry scale for weighing the quantity recovered. Learned counsel submits that, however when the police party was on the way allegedly they received spy information yet they did not arrange any private witnesses for recovery. Learned counsel has submitted certified copy of judgment passed in FIR no.52 of 2009 police station Qazi Ahmed in which the present applicant was acquitted under section 265-K Cr.P.C. Learned counsel submitted that there was malafide on the part of police and in order to register another false case against the applicant, the recovery was foisted upon him. Learned counsel submits that in both the cases the complainant is same.

On the other hand Syed Meeral Shah, learned DPG opposed the bail on the ground that applicant was arrested on the spot and recovery was effected from him and this being a crime against society applicant is not entitled to bail. He also submitted that a bar exits against grant of bail in section 51 of CNS Act 1997. Learned State Counsel also argued that the requirement of section 103 is not mandatory in CNS cases. He stated that there is no malafide on the part of police, therefore, present applicant is not entitled for grant of concession of bail.

I have heard both the learned counsel and perused the record with their able assistance. It is now well settled law that grant of bail is an inherent power of High Court and cannot be curtailed by any subordinate legislation as these powers are enjoyed by High Court under the constitution. In view of this, I am inclined to hold that in all cases where grant of bail is considered appropriate by the High Court, High Court can grant bail irrespective of any bar contained in legislation. So far as the arguments of learned counsel for the applicant that since present applicant was acquitted in FIR No. 52 of 2009 he is entitled to the concession of bail, I may observe that this is not a rule that if there are more than one cases registered against any person and he is acquitted in one of them, he would be entitled to grant of bail in other cases. Learned counsel for the applicant relied upon the case reported in 1997 SCMR 947 in which it was observed that if some cases are still pending against any applicant this would not be a ground for rejection of bail. In my humble view these are two different situations. However, I have noted that from the very contents of FIR it appears that police party knew the applicant prior to the incident and it is also mentioned in the FIR that Ahmed Khaskheli whose name was disclosed by the present applicant was also identified by complainant ASI Mumtaz Ali, these very facts and other contents of FIR show that material exists to believe that there is possibility of false implication of present applicant in this case due to malafide and previous enmity. In such circumstances, where false implication appears to be a probable possibility, ground of alleged offence being the offence against society would not be available to the prosecution to oppose the bail. Besides that quantity of allegedly recovery from the applicant is marginally high to make the offence punishable under section 9-C instead of Section 9-B of CNS Act 1997. Further observations on facts of the matter would be a deeper appreciation of evidence which is not desirable in bail cases as it might prejudice the case of either party. In view of above facts and circumstances I am of the humble view that applicant has made out a case for grant of concession of bail which is accordingly granted to him subject to furnishing surety in the sum of Rs.2,00,000/- with PR bond in the like amount to the satisfaction of learned Trial Court.

JUDGE