ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Bail Application No. 708 of 2019

DATE                          ORDER WITH SIGNATURE OF JUDGE

Applicant /                :           Muhammad Younus S/o. Allah Khan

Accused                                 through Mr. Ajab Khan Khattak, Advocate

Respondent               :           The State through Ms. Rahat Ahsan, Addl. P.G.

Date of hearing         :           03.09.2019   

Date of order            :           03.09.2019

Abdul Maalik Gaddi, J. Having remained unsuccessful in obtaining his release on bail from trial Court in Crime No. 292 of 2018, registered under-section 6/9-C of CNS Act, 1997, at police station Peerabad, Karachi. Now applicant/accused Muhammad Younus is seeking his release on bail in the said crime through instant bail application.

2.       Brief facts of the case are that on 01.08.2018 at about 0530 hours Complainant SI Alam Zaib of P.S. Peerabad, Karachi, alongwith his subordinate staff apprehended above-named accused along with co-accused Muhammad Younus while riding on motorcycle and from his possession recovered 02 kilograms charas. Whereas from the possession of co-accused Saja Khan recovered 01 kilogram charas. After observing required formalities at the spot, accused alongwith recovered charas was brought at P.S. where FIR was lodged.

3.       Learned Counsel for applicant has mainly contended that this Court in Cr. B.A. No. 1566 of 2018 filed by applicant has given direction to trial Court to conclude the matter within two months and such order was passed by this Court on 25.02.2019, but not a single witness has been examined. He vehemently contended that applicant/accused was picked up from his house along with his brother and mother of applicant filed CP No. 5713 of 2018 before this Court for his recovery. He further contended that there is a violation of section 103 Cr.P.C. as no independent witness was associated to act as witness of the recovery proceedings, therefore, according to him false implication of the applicant in this case cannot be ruled out.

4.       Learned APG Ms. Rahat Ahsan for the State has opposed the bail application on the ground that 2 kilograms charas recovered from possession of present applicant/accused and there is an embargo under section 51 of the CNS Act, 1997, and the bail application of the accused has already been dismissed by this Court and so also disposed of the bail application of the applicant/accused. No doubt that this Court has issued direction but matter could not be proceeded because of the quantum of work in the Court, as such there is no delay on the part of prosecution. In support of her arguments, she has relied upon the case-law reported in PLD 2016 Supreme Court 11 (RE: Nisar Ahmed v. The State and others).

5.       I have heard learned Counsel for the parties at a considerable length and perused the record so made available before me.

6.       After careful consideration of contentions of the learned Counsels of the parties and meticulous examination of available record, alleged contrabank narcotics is 02 kilograms charas. No private witness has been associated despite the place of incident was a busy place, hence the complainant party least could have made an attempt to associate private mashirs from the place of incident which makes a room for further probe. Besides, applicant was arrested on 01.08.2018 and since then he is in custody for last one year but as per progress report submitted by the presiding officer of trial Court dated 27.08.2019, showing that in this matter only trial Court has framed the charge against the applicant.                       

7.       In my tentative opinion, if the trial Court proceeded trial with such speed that would not be concluded in near future. It also appears from record that prior to filing this criminal bail application, applicant has filed criminal bail application bearing No. 1566/2018, but the same was disposed of vide order dated 25.02.2019, directing the trial Court to conclude the trial within two months. As observed above, in this matter only charge has been framed, not a single witness has been examined. Learned APG was unable to give any plausible explanation for non-compliance of the said order of this Court.

8.       I have gone through the case of Muhammad Aslam v. The State (1999 SCMR 1092), the Hon’ble apex Court has held that:

“S. 497---Penal Code (XLV of 1860), Ss. 302/324/148/149---Bail---Despite direction of High Court trial against accused had not been completed by the trial Court within the specified period---Prosecution was unable to give any explanation for noncompliance of the said order of High Court---Petition for leave to appeal was converted into appeal which was allowed and the accused was admitted to bail in circumstances”.

          Likewise, in the case of Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others (2015 SCMR 1092), the Hon’ble apex Court has held that:-

“Speedy trial was alienable right of every person, therefore, even if the provision of S. 497, Cr.P.C. in ordinary course was not applicable to an accused person facing charges under National Accountability Ordinance, 1999, the broader principle of the same could be pressed into service in hardship cases to provide relief to a deserving accused person incarcerated in jail for a shocking long period”.

9.       The applicant is behind the bars since 01.08.2018 and direction was issued to the learned trial Court to conclude trial but the learned trial Court, after lapse of more than a year, has only framed charge, if the learned trial Court shall proceed the trial with such a speed, the same would not conclude in near future. It appears from the record that co-accused Saja Khan has been granted bail by the trial Court, although 01 kilogram charas was recovered from his possession on the basis of same mashirnama, therefore, this Court is left with no option but to release the applicant/accused on bail. The case-law cited by learned APG (Ms. Rahat Ahsan) has been perused and considered by me, but the facts of cited case law do not find applicable to the present case. 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 the Hon’ble Supreme Court of Pakistan in the case of The State v. Haji Kabeer Khan reported as PLD 2005 Supreme Court 364 and Muhammad Faiz @ Bhoora v. The State and another reported as 2015 SCMR.

10.     Accordingly, this bail application is accepted and applicant/accused is admitted to bail after furnishing solven surety in the sum of Rs.100,000/- (Rupees one hundred thousand only) and PR bond in the like amount to the satisfaction of the Nazir of the trial Court.

11.     Needless to mention here that observations, if any made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicant/accused on merits. It is made clear that in case applicant/accused during proceeding before the trial Court misuses the concession of bail, then the trial Court would be competent to cancel the bail of applicant without making any reference to this Court.

JUDGE

rashid /Steno