ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No.248 of 2019
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DATE ORDER WITH SIGNATURE(S) OF JUDGE(S)
FOR HEARING OF BAIL APPLICATION
Date of hearing: 27.3.2019
Date of Order: 27.3.2019
Mr. Waseem Gul, advocate for applicant
Mr. Khadim Hussain Kooharo, APG
ORDER
Abdul Maalik Gaddi, J. Having remained unsuccessful in obtaining their release on bail from the trial Court in Crime No.02/2019 registered under Section 6/9(B) of C.N.S. Act, 1997 at PS DIO, Excise & Narcotics, Karachi. Now the applicants Sabir Sultan son of Bostan and Zahirullah son of Abdul Qayum are seeking their release on bail through instant bail application.
2. The brief facts of the prosecution case in nut shell are that, on 14.01.2019 at 1800 hours, the complainant Inspector Muhammad Zubair Lakho of PS DIO Excise & Narcotics, along with his subordinate staff had arrested the above named accused persons, pursuant to spy information, at Mai Kolachi Road, near Railway Phaatak, Boat Basin Karachi, while they were riding in a Motorcycle and recovered Ice Drug (METHAMPHETAMINE) weighing about 111 grams, from their possession. Accused were arrested at spot and recovered drug was sealed for chemical analysis and the instant FIR was lodged against them.
3. Learned counsel for applicants/ accused has mainly argued that the applicants/ accused are innocent and they have been falsely implicated in the case in hand with malafide intentions of excise police, otherwise, they have no concern with the alleged recovery. He further submits that the accused are labours and were coming to home, after their jobs and excise police had stopped them and demanded illegal gratification from them, which they had refused, so they have foisted the alleged recovery upon the accused. He further submits that all the witnesses are police officials and there is violation of section 103 CrPC. He further submits that the quantity of recovered substance is a borderline case of section 6/9-A & 6/9-B of CNS Act, therefore, the accused above named are entitled for concession of bail.
4. Learned APG has strongly opposed the instant bail application and submitted that the accused above named were apprehended on spot and ice drug were recovered from their possessions, which is dangerous for human life.
5. Heard and perused the record.
6. It is an admitted position that the case has been challaned, applicants/ accused are no more required for investigation and admittedly the case of prosecution based upon the evidence of police officials, therefore, no question does arise for tampering their evidence at the hands of applicants/ accused. Since the whole case of prosecution is based upon the evidence of police officials, therefore, their evidence is required to be minutely scrutinized at the time of trial whether offence as alleged in the FIR, allegedly committed by the applicants/ accused in a fashion as narrated by the complainant or otherwise. There is nothing on record to show that applicants/ accused are previous convict or has been arrested in a case of similar nature in past.
7. Learned counsel for applicants/ accused during the course of arguments has submitted a statement along with photocopy of FIR, challan-sheet as well as report of chemical examiner issued by Government of Pakistan, Ministry of Science and Technology Pakistan Council of Scientific & Industrial Research Laboratories Complex, Karachi dated 29.01.2019 in the present case, taken on record and copy was supplied to the learned APG. Learned counsel further submits that after perusing the chemical report, it reveals that the alleged incident took place on 14.01.2019, whereas the test of alleged recovery was performed on 28.01.2018, much prior to the occurrence of the incident, therefore, according to him either the case is false or incident has not taken place in a fashion as alleged in FIR, however, according to him, till then case requires further probe. When confronted this report to learned APG for explanation, he has no answer with him. However, he submits that the case against the applicants is serious and heinous in nature. In my view, this is no ground for refusing the bail, if applicants are otherwise entitled for bail.
8. It is also stated by learned counsel for applicants that in this matter, complainant of the case has also acted as Investigating Officer. Although, the evidence of the complainant who himself conducted investigation is admissible in evidence yet for the safe administration of justice, he should have entrusted the evidence to some other police officer so that nobody raise any finger on the investigation, therefore, on this ground, it is yet to be determined by the trial Court whether investigation carried out by the complainant who himself acted as Investigating Officer of the case can safely be relied upon or otherwise.
9. In view of above, I allow this bail application and admit the applicants/ accused on bail after furnishing their surety in the sum of Rs.30,000/- (Rupees Thirty Thousand only) each and PR bond in the like amount to the satisfaction of learned trial Court.
10. Needless to mention here that any observation if made in this order is tentative in nature and shall not effect the merits of the case. It is made clear that in case if applicants/ accused misuse the bail, then trial Court would be competent to cancel the bail of the applicants/ accused without making any reference to this Court, but as per law.
Judge
asim/pa