ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD.

Criminal Bail Application No.S-873 of 2016

Date of hearing:                               04.01.2017.

Date of decision:                              04.01.2017.

Applicant:                                            Muhammad Qasim through Mr. Muhammad Shafique Khan, Advocate.

Respondent:                                      The State through Mr. Shahid Ahmed Shaikh, A.P.G. Sindh.

O R D E R

KHADIM HUSSAIN TUNIO, J: - Through captioned application, the applicant seeks post arrest bail in crime No.86 / 2016 of PS Hali Road, Hyderabad under section 9 (b) CNS Act, 1997. Applicant / accused approached with the same plea to the Court of learned 3^rd Additional Sessions Judge, Hyderabad, which has been declined vide order dated 22.09.2016.

2.         In nutshell accusation is that applicant Muhammad Qasim was apprehended by the police party raided by SIP Malik Sher Ali of PS Hali Road along with subordinate staff and secured 500 grams of charas, for which present FIR was registered.

3.         Learned counsel for the applicant urges that the offence which the applicant is charged is punishable upto seven years and does not fall within the prohibitory clause of section 497 (1) Cr.P.C.; that all the P.Ws are police officials; none from public has been joined as mashir; there is three days delay in sending the substance to the Chemical Examiner.

4.         On the other hand, learned A.P.G. has vehemently opposed the bail plea of applicant / accused.

5.         Admittedly all the PWs are police officials. The substance has been referred to the Expert with delay of three days. The offence with which the accused is charged is punishable with seven years and does not fall within the ambit or prohibitory clause of section 497 Cr.P.C. Case has already been challaned. The applicant / accused is behind the bar since 12.09.2016 and no purpose would be served to keep the applicant / accused behind the bar for an indefinite period. The Honourable apex Court has been pleased to observe in the case of ‘Tariq Bashir v. State’ (PLD 1995 S.C. 34) as under:-

It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for fuss than .ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is 'a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example-_-

(a)   where there is likelihood of abscondance of the accused;

(b)   where there is apprehension of the accused tampering   with the prosecution evidence;

(c)   where there is danger of the offence being repeated if the accused is released on bail; and

(d)   where the accused is a previous convict.

6.         Keeping in view the above position and circumstances, the applicant / accused is admitted to post arrest bail subject to his furnishing solvent surety in the sum of Rs.50,000/- (Fifty thousand only) and PR bond in the like amount, to the satisfaction of trial Court.

JUDGE

*Abdullah Channa/P.S*