ORDER SHEET
IN THE HIGH COURT OF SINDH, AT KARACHI.
Criminal Bail Application No. 1771 of 2016
Date Order with Signature of Judge .
For hearing of bail application.
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17.01.2017.
Mr. Shabeer Hassan Shah, Advocate for applicant.
Mr. Muntazir Mehdi, APG.
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After rejection of his earlier application, vide order dated 11.11.2016 passed by the learned Special Judge, Control of Narcotic Substances, Thatta, in Special Case No. 36 of 2016, the applicant/accused Mohabat Ali s/o. Uris Chandio through instant Criminal Bail Application seeks post -arrest bail in Crime No. 43 of 2016, registered at P.S Mirpur Bathoro, District Sujawal under Section 9(c) of CNS Act, 1997.
2. It is alleged that on 14.04.2016 at 1630 hours the present applicant was going on a motorcycle alongwith his son / co-accused Mujahid Ali, when police party signaled them to stop the motorcycle, they immediately got down from the motorcycle and started to run away down the road; however, police party succeeded to apprehend the co-accused from whose possession 1500 grams charas was recovered, while the present applicant made his escape good by taking advantage of jungle, who was subsequently arrested by the police on 28.10.2016.
3. The learned counsel for the applicant/accused has mainly contended that the applicant/accused is innocent and has falsely been implicated in this case; that nothing was recovered from his possession and there is delay of seven (07) days in sending the case property to the Chemical Examiner, which creates doubts in the prosecution case; that the co-accused Mujahid Ali has already been admitted to bail by the trial Court vide order dated 13.05.2016; hence the present applicant/accused is also entitled for the concession of bail on the rule of consistency. He added that the right of bail cannot be refused to accused merely on account of his alleged abscondence, which is a factor relevant only to propriety. In support of his contentions, learned counsel for the applicant/accused has placed reliance upon the case of Qamar alias Mitho vs. The State and others (2012 PLD Supreme Court 222).
4. On the other hand, learned APG has maintained that the applicant/accused is not entitled for the concession of bail being noticeable absconsion, as his son was facing trial for the same offence.
5. Heard the learned counsel for the applicant/accused as well as learned APG for the State and perused the material available on record.
6. It is an admitted position that the applicant/accused was neither arrested from the spot nor it is the case of the prosecution that he had thrown away from his possession any incriminating material while making his escape good from the scene to connect him with commission of offence. The guilt of the applicant/accused is yet to be determined as the alleged charas has been shown by the prosecution to have been recovered from co-accused Mujahid Ali, who has already been admitted to bail by the learned trial Court. The only objection raised by the learned APG is the noticeable absconsion of the applicant/accused. It goes without saying that mere abscondence of the accused cannot come in the way of releasing him on bail unless such abscondence is supported by other material evidence connecting him with the commission of the offence. Where no recovery was effected from the possession of applicant/accused and he was also not apprehended from the spot, question of involvement of applicant/accused in the matter needs serious consideration in terms of further enquiry as envisaged under Sub-Section 2 of Section 497 Cr.P.C. I, therefore, admit the present applicant/accused to bail subject to his furnishing solvent surety in the sum of Rs.100,000/- (Rupees One Hundred Thousand only) and P.R. Bond in the like amount to the satisfaction of the trial Court.
7. Needless to mention here that if the applicant in any manner tries to misuse the concession of bail it would be open for the trial Court to cancel his bail after issuing him the requisite notice.
JUDGE
Athar Zai