ORDER SHEET
THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.349 of 2019
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Date Order with Signature(s) of Judge(s)
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For hearing of Bail Application.
Mr. Farrukh Zia Sheikh, Advocate for Applicant.
Mr. Abdullah Rajput, Deputy Prosecutor General alongwith SIP Zahid Jadoon PS Mehmoodabad, Karachi
Date of hearing : 16.5.2019
Date of Order : 20.5.2019
ORDER
Abdul Maalik Gaddi, J. – Having remained unsuccessful in obtaining his release on bail from trial Court in Crime No.287/2018 registered under Section 6/9-C of CNS Act, 1997 at PS Mehmoodabad, Karachi. Now applicant Syed Riaz Hussain Shah son of Syed Farman Shah is seeking his release on bail through instant bail application.
2. Briefly the facts of the case are that on 06.11.2018 SHO/ Inspector Sarwar Khan received spy information that a person with the intention to delivery of charas was standing at inside Haji Ghaseeta Khan Gali No.1 near Farooq Hotel, Karachi, on such information SHO along with the police party reached at about 1110 hours on the above said spot and found the person and at the spot with private witness Malik Adil Awan was associated, arrested the accused, who disclosed his name as Syed Riaz Hussain Shah son of Syed Farman Shah and from his right hand a light and dark blue color travelling bag secured and upon checking from the travelling bag under the light blue color Dopata slabs type charas was recovered and on weighing the weight was 10.200 Kgs. recovered and from personal search from front side pocket cash amount of Rs.2250/- and from right side pocket a Q-Mobile with 2 sims broken screen secured. Hence the FIR was lodged.
3. It is inter-alia contended by learned counsel for applicant/ accused that applicant/ accused is absolutely innocent and has been falsely implicated in this case with malafide intention and he has committed no offence nor any incident took place and entire prosecution case is based on false story, which needs further inquiry. Per learned counsel that there is no investigation to whom the charas to be sold and where it was taken by the accused and further it is to be seen at the time of trial about the knowledge and intention of the accused. He vehemently contended that actually the accused has grocery shop in his area and a person namely Shahid Hussain wanted to purchase his shop against a meager amount and on refusal of the accused he has been falsely implicated in this case. Per learned counsel nothing was recovered from the possession of accused and complainant miserably failed to identify as to how he arranged the measurement instruments which makes the case of the prosecution seriously doubtful and according to him if the case is doubtful then its benefit must go in favour of the applicant, even at bail stage. Per learned counsel as per police paper whole quantity recovered was allegedly sent for chemical examiner, whereas this fact is practically impossible as only small quantity can be sent for such examination and its only at the time of trial to determine as to whether what quantity was sent to chemical examiner. Per learned counsel that there is a delay in chemical report regarding substance and according to him this fact has been highlighted by the learned trial Court in its order and according to him this fact on the face of it confirms that even the learned trial Judge was unsure about the quantity, quality regarding the contraband material which in fact put the entire case of the applicant within the ambit of further inquiry, as such, he is entitled for bail. During the course of argument learned counsel for applicant has also reiterated the same facts and grounds which he has urged in the memo of bail application. However, in support of his arguments he has relied upon the case law reported in (1) 2016 SCMR 1424 (Ateeb ur Rehman @ Atti Mochi vs. The State and others), (2) 2015 SCMR 1002 (Ikramullah & others vs. The State), (3) 2002 PCrLJ 1086 (Imdad Junejo vs. The State), (4) 2016 YLR 744 (Muhammad Imran vs. The State), (5) 2017 PCrLJ 668 (Arshad Mahmood Khan vs. The State), (6) 2018 YLR 1067 (Imtiaz Ali vs. The State) and (7) 2018 PCrLJ Note 67 (Muhammad Qasim vs. The State).
4. On the other hand, learned Deputy Prosecutor General has strongly opposed this bail application on the ground that the huge quantity of contraband charas was recovered from the possession of the applicant and the applicant previously involved in different cases including the case of narcotics at Brigade PS as well as PS Mehmoodabad and no any application for harassment moved against Shahid Hameed. He vehemently contended that admittedly there are bulk narcotics properties with the chemical examiner and the chemical examiner was reportedly not posted at the chemical lab by the government, therefore, the chemical report are delayed not in this case only but in other cases as well. However, he submits that there is absolutely no delay in sending the property for chemical examination and according to him the property was sent promptly and was received on 07.11.2018 by the Incharge Chemical Examiners Office, Government of Sindh, Karachi. He further submits that the punishment of offence under which the applicant/ accused has been booked also falls within the prohibitory clause of Section 497 CrPC and in case if applicant is allowed to bail, he will repeat the offence. In support of his arguments learned DPG has relied upon the unreported order dated 17.7.2018 passed by Hon’ble Supreme Court in Criminal Petition No.41-K of 2018.
5. I have heard the learned counsel for parties at a considerable length and have gone through the case papers so made available before me.
6. As per police papers, it appears that the name of the applicant/ accused transpires in FIR with specific allegation that on the day and time of incident, the applicant was arrested by the complainant SHO Sarwar Khan along with his subordinate staff at spot and on his personal search 10.200 Kgs. charas was recovered from his possession in presence of private mashir (1) Malik Adil Awan and (2) ASI Hassaan Yasin, who apparently having no inimical terms with applicant. Mashirnama of arrest and recovery was prepared on spot and the statement of the prosecution witnesses under Section 161 CrPC has also been recorded, who in their statement have supported the prosecution case. Since huge quantity of charas recovered from the possession of the applicant which cannot be foisted by the police looking to the costs of charas. It also appears from the record that alleged recovery was made against applicant on 06.11.2018 and the whole property was sent to chemical examiner immediately for testing purpose through SIP Zahid Jadoon which was received by the Incharge, Chemical Examiner Office, Government of Sindh on 07.11.2018. Prima facie shows the involvement of the applicant/ accused in a case of serious and heinous in nature and also falls within the prohibitory clause of Section 497 CrPC.
7. As far as the arguments of learned counsel for applicant regarding delay in sending the property to the chemical examiner is concerned, in this respect it is suffice to say that as per police paper property was sent to chemical examiner without any inordinate delay, however, the report is still awaited, but in my tentative view and at this early stage of the case, delay in submission of report is no ground for bail and in case non positive report of the chemical examiner, the accused may move fresh bail application before the trial Court on fresh ground, if he so advised. No any enmity established with the private witness namely Malik Adil Awan. As far as the other ground of learned counsel for applicant that the whole property was sent to chemical examiner for testing purpose does not appeal to mind, in this respect it is also suffice to say that while deciding bail application Court is always avoided to go into deeper appreciation of evidence which is not possible at bail stage. Under these circumstances, applicant has failed to make out his case for grant of bail, hence his bail application stands dismissed.
8. As far as the case-laws cited by learned counsel for applicant in support of his bail application is concerned, the same have been perused and considered by me but did not find applicable to the facts of the present case as cited case-law either pertains to criminal appeal or for quashment of proceedings except case of 2016 SCMR 1424 which though pertains to bail application but the facts of the said case are also distinguishable to the facts of present case, the parameters in deciding bail application as well as an appeal are quite different to each other. Even otherwise, in criminal administration of justice each case has to be decided on its own facts and circumstances, and courts are required to exercise jurisdiction independently as held by Hon’ble Supreme Court of Pakistan in case of State vs. Haji Kabir Khan reported as PLD 2005 SC 364 and Muhammad Faiz @ Bhoora vs. The State and another reported in 2015 SCMR 655.
9. Needless to mention here that the observations made hereinabove are tentative in nature would not influence to trial Court while deciding the case of applicant/accused on merits.
JUDGE
asim/pa