IN THE HIGH COURT OF SINDH AT KARACHI

 

Cr. B.A. No.270 of 2019

 

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DATE                 ORDER WITH SIGNATURE(S) OF JUDGE(S) 

 

 

FOR HEARING OF BAIL APPLICATION

 

Date of hearing:        03.4.2019

 

Date of Order:           03.4.2019     

 

Mr. Syed Lal Hussain Shah, advocate for applicant

Mr. Khadim Hussain Kooharo, A.P.G

 

 

ORDER

 

 

 

 

Abdul Maalik Gaddi, J.  Through this Bail Application, the applicant/ accused namely Abbas son of Manzoor Magsi seeks post arrest bail in Crime No.471/2018 under Section 6/9(c) of CNS Act 1997 registered at P.S. Peerabad, Karachi.

2.                  Precisely relevant facts are that on 03.12.2018 at about 0600 hours, a police party headed by ASI Saeed Khan Bangash of P.P Muhammadpur of P.S Peerabad, during patrolling in the area arrived at Muhammadi Chowk near Muhammadi Masjid, New Mianwali Colony, Qasba Colony, Karachi, noticed one suspected, apprehended him, who disclosed his name as Abbass. His personal search was conducted in presence of two police officials namely HC Abdul Nabi & PC Raza Khan and secured white colour shopper from his right hand, contained charas, quantified 2 kilo 30 grams on digital scale, as such accused was arrested and memo of arrest and recovery was prepared at the spot and thereafter accused as well as case property were brought at Police station where instant FIR u/s 6/9(c) of Control of Narcotic Substances Act, 1997 (in short CNS Act) was registered against him.

3.                  It is contended by learned counsel for applicant that recovery affected from the applicant is 2 kilo 30 grams charas; chemical report is still awaited; 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 the applicant is behind the bars since last 04 months.

4.                  Learned A.P.G. opposed this bail application on the ground that this is crime against society, however, he concedes that there is no criminal history of applicant.

5.                  After careful consideration of contentions of learned counsel for the parties and meticulous examination of available record, alleged contraband narcotics is 2 kilo 30 grams charas. No private witnesses have been associated in spite of that the alleged incident took place in a thickly populated area situated at Muhammadi Chowk near Muhammadi Masjid, New Mianwali Colony, Qasba Colony, hence the complainant party least could have made an attempt to associate private mashirs from the place of incident. Report of chemical examiner as per APG is still awaited. Accused is behind the bars since his arrest. Trial still has not been commenced. It is yet to be determined at the time of trial why the chemical report has been delayed. This aspect of the case requires further inquiry. Applicant has been in continuous custody since last 04 months and is no more required for any purpose of investigation nor the prosecution has claimed any exceptional circumstances, which could justify keeping applicant behind the bars for an indefinite period. Moreover, prosecution has also not claimed that the applicant is previously involved in same nature of the case. All the prosecution witnesses are police officials, hence there is no question of tampering the evidence, therefore, keeping in view of the peculiar facts of instant case; continuous detention of more than 04 months as well as maximum punishment, which normally may be considered while dealing with bail application, 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 applicant pending determination of his guilt.

6.                  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, CrPC for this reason, he is admitted to post arrest bail subject to furnishing solvent surety in the sum of Rs.50,000/- (Rupees fifty thousand) and PR bond in the like amount to the satisfaction of trial Court.

7.                  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 during proceedings the applicant/ accused misuses the bail, then trial Court would be competent to cancel the bail of the applicant after due notice to him.

Judge

asim/pa