IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.260 of 2019
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DATE ORDER WITH SIGNATURE(S) OF JUDGE(S)
1. FOR HEARING OF MA NO.1654/19
2. FOR HEARING OF BAIL APPLICATION
Date of hearing: 23.4.2019
Date of Order: 23.4.2019
Mr. Allah Bukhsh Narejo, advocate for applicant
Mr. Zahoor Shah, D.P.G a/w ASI Saleem Akhtar, CRO Branch
ORDER
Abdul Maalik Gaddi, J. Through this Bail Application, the applicant/ accused namely Abdul Ghaffar @ Iqbal son of Allah Dino seeks post arrest bail in Crime No.03/2019 under Section 6/9(c) of CNS Act 1997 registered at P.S. Sir Syed, Karachi.
2. Precisely relevant facts are that on 03.01.2019 at about 0120 hours, the complainant ASI Akhlaq Ahmed of PS Sir Syed, Karachi lodged FIR stating therein that he along with his subordinate staff was busy in patrolling for suppression of crimes. During patrolling at about 0300 hours when he reached inside Street, near Chota Qabrustan, Bilal Colony, Sector 7/A, North Karachi, Karachi, he saw a person standing in suspicious condition, to whom he with the help of subordinate staff apprehended. On enquiry the said person disclosed his name as Abdul Ghaffar alias Iqbal s/o Allah Dino. Due to non-availability of private witnesses, he was searched in presence of police officials, from accused 1010 grams chars and cash of Rs.220/- being sale proceed were recovered. He sealed the recovered chars and arrested the accused. He brought the accused at police station where a case u/s 9(c) of Control of Narcotics & Substances Act was registered against accused persons. Hence, this FIR.
3. Learned counsel for the applicant argued that applicant/ accused is innocent and nothing was recovered from his possession; that alleged recovery has been foisted upon the applicant; that recovery of 1010 grams falls within border line case under Section 6/9(c) of Control of Narcotics & Substances Act and a small quantity was sent for chemical examiner which report still has not been received. The whole case of the prosecution based upon the evidence of prosecution witnesses, who are interested to each other, although, the incident took place in a populated area but no private witness has been cited in this case. The applicant/ accused is behind the bars since his arrest, even trial has not been commenced and nobody knows when trial would be commenced and ended. Till then according to him the applicant/ accused is entitled for bail.
4. Learned Deputy Prosecutor General has opposed this bail application on the ground that applicant/ accused has been arrested on the spot with chars weighing up to 1010 grams in presence of mashirs, who have no inimical terms with applicant/ accused. He further submits that this applicant/ accused is involved in 4-5 criminal cases, which are pending before trial Court and if at this stage he is granted bail, certainly, he will repeat the same offence.
5. I have heard the learned counsel for parties and perused the record.
6. It is an admitted position that the case has been challaned and this applicant/ accused is no more required for investigation. The only allegation against applicant/ accused is that at the time of arrest of the applicant, 1010 grams chars was allegedly recovered from his possession. It appears from record that alleged incident took place in a populated area but despite of this fact, the prosecution has not bother to cite any independent person from the locality to witness the event. No doubt, the evidence of the police officials is as good as private witnesses, but when the whole case of the prosecution is based upon the evidence of police officials, which in my tentative view requires to be minutely scrutinized at the time of trial whether the offence has been committed by the applicant/ accused in a fashion as alleged by the prosecution or otherwise.
7. Chemical report is not available in the file to ascertain whether the alleged chars allegedly recovered from the applicant is/ was in fact a chars or otherwise. This aspect of the case requires further probe. In this matter, all prosecution witnesses are police officials, therefore, no question does arise for tampering the evidence at the hands of applicant. The applicant/ accused is behind the bars since his arrest. Trial has not been commenced, therefore, nobody knows when it would be concluded. All these grounds lead to me towards the conclusion that the applicant/ accused has made out a case for grant of bail in his favour. During the course of arguments, I have specifically asked the question from learned D.P.G. that since challan has been submitted then why the chemical report is not on file, he has no satisfactory reply with him.
8. Now coming to the contention of the learned Deputy Prosecutor General, Sindh that the petitioner is also involved in other number of criminal cases, I am of he humble opinion that prior to conviction, it is presumed that every accused is innocent. Insofar as the case in hand is concerned, despite repeated queries by this Court learned Deputy Prosecutor General, Sindh has failed to establish that the applicant was ever convicted in any case registered against him, therefore, he cannot be refused bail merely on the ground that certain other criminal cases have been registered against him. In this regard, I am supported with the case law reported as Jafar @ Jafari v. The State (2012 SCMR 606), in which it has been held as under:-
“8. We have heard the learned counsel for the parties and have also gone through the contents of the compromise. As at present no sufficient evidence is available on record to conclude that the accused/appellant is habitual offender, coupled with the fact that although another F.I.R., referred to by the learned Additional P.G., has been registered against him but it, itself is not sufficient to prove the appellant to be so, unless it is proved/established that he has been convicted in the said F.I.R., and the said conviction has been finally maintained by the superior Courts. Therefore, we have decided to dispose of this case in terms of compromise.”
9. For what has been discussed above, I have no doubt in my mind to hold that the applicant has made out a case for further inquiry into his guilt within the meaning of section 497(2), Cr.P.C. Consequently, this bail application is accepted and the applicant is allowed post-arrest bail subject to his furnishing solvent surety in the sum of Rs.50,000/- (rupees fifty thousand only) and P.R. bond in the like amount to the satisfaction of the trial Court.
10. It is made clear that if the applicant/ accused misuses the bail, trial Court would be at liberty to cancel the bail of the applicant/ accused without making any reference to this Court.
11. Before parting with this order, it is observed that the observations made in this order are tentative in nature and the same would have no bearing on the outcome of the trial of the case.
Judge
asim/pa