IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.480 of 2019
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DATE ORDER WITH SIGNATURE(S) OF JUDGE(S)
FOR HEARING OF BAIL APPLICATION
Date of hearing: 23.5.2019
Date of Order: 23.5.2019
Mr. Inayatullah Lashari, advocate for applicant
Mr. Ali Haider Saleem, Deputy Prosecutor General
ORDER
Abdul Maalik Gaddi, J. Having remained unsuccessful in obtaining her release on bail from trial Court in Crime No.68/2019 registered under Section 9-C of Control of Narcotic Substances Act, 1997 at PS Sukhan, District Malir, Karachi. Now the applicant Mst. Shama @ Hajani w/o Haris is seeking her release on bail through instant bail application.
2. The facts of the prosecution case in nut shell are that on 25.02.2019, complainant/ SIP Malik Akhter Hussain lodged FIR bearing crime No.68/2019 for offence punishable under Section 9(c), CNS Act, 1997 at PS Sukhan; stating therein that on said date during patrolling he apprehended the present applicant/ accused and recovered a black color shopper from her hand found containing chars, weighing 3124 grams, which was carrying by her for sale and cash of Rs.940/- from her possession in presence of mashirs under memo, hence this FIR.
3. It is argued by the learned counsel for applicant that the case against the applicant is false and has been registered by the police due to malafide intention and applicant has committed no offence nor any incident took place and entire prosecution case is based on false story, which needs further enquiry; per learned counsel, there is no investigation to whom the chars 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 further submits that accused is a lady, aged about 50 years and is behind the bars since her arrest and facing multiple diseases including diabetes inside jail and she has not been provided proper treatment; he further submits that despite of prior information about the availability of the applicant at a particular place, no independent person of the locality or from the place of information has been cited as a witness of recovery proceedings; that case has been challaned and this applicant is no more required for investigation, therefore, under the circumstances, she may be granted bail.
4. On the other hand, learned Deputy Prosecutor General has strongly opposed this bail application on the ground that 3124 grams chars was recovered from the applicant/ accused in presence of mashirs, who have no inimical terms with the applicant; he further submits that after alleged recovery from the possession of the applicant, the property was sent to chemical examiner for testing purpose, who confirmed that the property sent to them was chars.
5. I have heard the learned counsel for parties at some length and perused the case papers so made available before me.
6. The allegation against the applicant/ accused is that she was carrying chars with her for selling purpose, but as per police paper there is no investigation to whom the chars 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.
7. No doubt, the offence is not bailable under section 51 of the C.N.S.A. and falls within the ambit of subsection (1) of section 497, CrPC. However, the applicant/ accused is a woman and thus her case falls within the first proviso of subsection (1) of section 497, CrPC, which makes her case arguable for the purposes of bail. Moreover, keeping in view the quantity allegedly recovered from the applicant, she is not likely to get maximum punishment because the quantum of sentence has to commensurate with the quantum of narcotics, if case against her is proved at trial. There is nothing on record to show that the applicant is a previous convict or involved in such like offences.
8. In view of the above discussion, the applicant is entitled to the concession of bail. I, therefore, admit the applicant/ accused on bail after her furnishing solvent surety in the sum of Rs.1,00,000/- (Rupees one lac only) and PR bond in the like amount to the satisfaction of trial Court.
9. 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 without making any reference to this Court but as per law.
Judge
asim/pa