ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Bail Appln. No. S-  125 of 2018.

Date of hearing

Order with signature of Judge

09.04.2018.

          Mr. Abdul Rehman A. Bhutto, Advocate for applicant.

          Mr. Sharafuddin Kanhar, A.P.G.

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Amjad Ali Sahito, J:    Through this application, applicant Yousif Ali son of Bhooro seeks his admission to post-arrest bail in Crime No.74/2017 registered with Police Station Guddu (District Kashmore @ Kandhkot), for offences punishable under Section  9 (c) Control of Narcotic Substances Act, 1997.  Earlier, bail plea of the applicant was declined by learned Special Judge (CNS) Kashmore @ Kandhkot, vide his Order dated 10.02.2018.

          The facts of the prosecution case are that, during arrest of the present applicant on 25.12.2017 in connection with Crime No.72/2017 and 73/2017 of P.S Guddu, contraband charas weighing 2000 grams was recovered from his possession in presence of police mashirs by complainant ASI Mukhtiar Ali Choliyani, who lodged report on behalf of the State against applicant to above effect.

          Learned counsel for the applicant mainly contended that the applicant is innocent and he has been implicated in this case with malafide intention and ulterior motives; that the story as set out in the F.I.R does not appeal to a prudent mind; that both the mashirs of alleged recovery of charas are police officials of same police station and no any  independent person has been cited as mashir and that there is violation of Section 21 of the Control of Narcotic Substances Act, 1997. Learned counsel further submitted that the applicant already stands acquitted from the main connected case (F.I.R No.72/2017 of P.S Guddu, under Section 395 P.P.C). Learned counsel has produced on record certified copy of the aforesaid judgment with his statement. Lastly, he prayed for grant of bail to applicant.

          On other hand, learned A.P.G. opposed grant of application on the grounds that the applicant is nominated in F.I.R and at the time of his arrest huge quantity of charas has been recovered from his possession and that the offence with which the applicant is charged falls within prohibitory clause of Section 497 Cr.P.C.

          I have heard the learned counsel for the parties and gone through the available record.

          The narration of F.I.R to the effect that the applicant/ accused while taking the cow and buffalo was having wrapped charas with his waist, do not appeal to a prudent mind, as such the case requires further probe into the guilt of the applicant/ accused. Moreover, as per case of prosecution, allegedly the police recovered 2000 grams of charas from possession of the applicant when he was on the shifting stolen buffalo and cow near Chinni Ferry, but no any independent person has been cited as witness or mashir in the case. No doubt, the evidence of the police officials is as good, as other witnesses, but when the whole case rests upon sole evidence of police officials, their evidence requires deep scrutiny at trial.

          Per F.I.R the allegation against applicant is that, at the time of his arrest and recovery of contraband charas, the property obtained by dacoity in Crime No.72/2017 P.S Guddu, i.e. a cow and a buffalo was also recovered from his possession. The applicant has been granted bail in connected case/ Crime No.73/2017 under section 412 P.P.C by this Court vide Order dated 09.04.2018. It is also matter of record that the applicant has been acquitted from the aforesaid case of dacoity vide judgment dated 27.02.2018 passed by learned Assistant Sessions Judge, Kashmore, as such it would be seen after the trial whether the contraband charas and aforesaid robbed/ stolen property were recovered from possession of the application or not. When, the applicant has been acquitted in the companion / main case after a full-fledged trial, as such the recovery of a cow and buffalo, so also charas, becomes doubtful.

          The investigation of the case has been completed, and all the prosecution witnesses in this case are police officials, therefore, there is no apprehension of tampering with the evidence on the part of applicant. So far contention of learned A.P.G. that the offence comes within the ambit of prohibitory clause of Section 497 Cr.P.C; in this regard it is suffice to say that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their involvement. The ultimate conviction and imprisonment of a guilty person can repair the wrong caused by a mistaken relief of bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified confinement in case of his acquittal in the long run.

          Therefore, keeping in view the facts and circumstances of the case, prima facie, case against the present applicant requires further inquiry as contemplated under subsection (2) of Section 497 Cr.P.C. Accordingly, the instant application stands allowed and   applicant is granted bail upon his furnishing solvent surety in the sum of Rs.50,000/- (Fifty thousand rupees) and P.R bond in the like amount to the satisfaction of trial Court.

          Needles to mention here that the assertions made hereinabove are tentative in nature and would not influence the trial Court while deciding the case on merits.

                                                                JUDGE

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