Allah Dad (Applicant) VS The State (Respondent)

ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Cr.B.A.No.S- 772 of 2018

DATE ORDER WITH SIGNATURE OF JUDGE

Date of hearing: 07.02.2019.

Date of order: 07.02.2019.

Mr. Omparkash, Advocate for applicant.

Ms. Sobia Bhatti, A.P.G. for the State.

ZULFIQAR AHMED KHAN, J:- Through instant bail application, applicant Allah Dad seeks post arrest bail in Crime No.34/2018 registered at Police Station Daur for offence u/s 9(c) of CNS Act, 1997.

2.Precisely relevant facts are that on 18.05.2018 at about 1845 hours complainant Inspector Muhammad Iqbal Wassan alongwith his subordinate left Police Station for the purpose of patrolling and during patrolling when they reached near link road leading to Village Karim Bux Waggan from Daur at Simnala mori, they saw the present applicant standing there in a suspicious manner. The present applicant was apprehended and during search recovery of 2850 grams charas and cash of Rs.500/- 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 2850 grams charas; chemical report is delayed; no independent person has been cited as witness; 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 more than 08 months. In support of his contentions, learned counsel has placed reliance on the cases reported as 2012 YLR 533 and 2018 P.Cr.L.J 1307.

4.Learned A.P.G. opposed this application on the ground that this is a crime against society. She further contends that the applicant is involved in two other crimes bearing Nos.100/2016 and 102/2016, however she concedes that he has been acquitted in these crimes.

5.After careful consideration of contentions of learned counsel for the parties and meticulous examination of available record, alleged contraband narcotics is 2850 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. No private witnesses have been associated to witness the recovery proceedings though the place of incident is alleged a thickly populated area and the complainant party least could have made an attempt to associate private mashirs from the place of incident; 07 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 three 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 three days and furthermore, it was sent through a private vehicle hence making a room for further probe. Applicant has been in continuous custody since last more than 08 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, though the prosecution has claimed that the applicant is involved in

aforementioned two cases but it is the matter of record that he has been acquitted in those cases.

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 Inspector Muhammad Iqbal Wassan 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 officers, 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 more than 08 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.

06.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 was 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 Court by my short order dated 07.02.2019 and these are the reasons whereof.

07.It is pertinent to mentioned 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