THE HIGH COURT OF SINDH AT KARACHI

Cr. Bail Application No.1305 of 2019

For hearing of Bail Application.

Applicant                    :           Nasir Mahmood son of Muhammad Yaqoob

                                                Through Syed Lal Hussain Shah, Advocate

Respondent                 :           The State Through Mr. Ali Haider Saleem, D.P.G. a/w SI/ IO Ghulam Mustafa Rajpar PS Sharifabad, Karachi

Date of hearing           :           21.10.2019

Date of Judgment       :           21.10.2019

ORDER

Abdul Maalik Gaddi, J. Through this Bail Application, the applicant/ accused namely Nasir Mahmood son of Muhammad Yaqoob seeks post arrest bail in Crime No.183/2019 under Section 6/9/C of CNS Act 1997 registered at P.S. Sharifabad, Karachi.

2. Facts necessary for the disposal of the instant bail application are that on 24.8.2019 at 10:00 p.m. a police party of PS Sharifabad, Karachi , headed by SIP Ali Muhammad Khosa was busy in patrolling and during patrolling he received spy information that a man is selling the chars. Acting on spy information reached behind Al-Karam Square, inside street of Al-Falah Masjid, F.S. Area, Karachi, where the said man on seeing police party tried to escape. The complainant apprehended him, who on interrogation disclosed his name as Nasir Mehmood son of Muhammad Yaqoob. Due to non-availability of independent witnesses, the accused was searched in presence of police officials, accused was holding a white colour plastic bag in his right hand, which the complainant took in custody and found chars there, which on weighment was found 2040 grams. ASI arrested the accused, sealed the chars, prepared memo in presence of mashirs and brought him at PS, where he lodged the FIR.

3. Learned counsel for applicant inter-alia contends that the alleged recovery effected from the applicant is 2040 grams of chars; Chemical report is delayed; 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 02 months.

4. Learned D.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 2040 grams charas. No private witnesses have been associated in spite of prior spy information received during patrolling, hence the complainant party least could have made an attempt to associate private mashirs from way or pointed place; there is a delay in sending the representative part for chemical examination which (delay) would also be required an explanation by prosecution hence making a room for further probe. It appears from the record that the whole case of the prosecution based upon the evidence of police officials, therefore, their evidence is also required to be minutely scrutinized at the time of trial whether the incident has taken place in a fashion as stated in FIR or otherwise. Applicant has been in continuous custody since his arrest and is no more required for any purpose of investigation nor the prosecution has claimed any exceptional circumstance which could justify keeping the applicant behind the bars for an indefinite period. Moreover, prosecution has not claimed that the applicant is previously involved in same nature of the cases. All the prosecution witnesses are police officials hence there is no question of tampering with the evidence. Therefore, keeping peculiar facts of instant case; continuous detention of more than 02 months as well minimum punishment, which normally may be considered while dealing with bail plea, 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. As far as the recovery of Rs.13,600/- from the applicant is concerned, counsel for applicant submits that this is his personal amount, whereas learned DPG claimed that this was the chars selling amount. On this aspect, there are words against words, therefore, this fact also requires evidence at the time of trial.

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.1,00,000/- (Rupees one lac) 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