THE HIGH COURT OF SINDH AT KARACHI

Cr. Bail Application No.1562 of 2019

For hearing of Bail Application.

Applicant                    :           Irshad Ali @ Alu son of Rehmatullah

                                                Through Mr. Zahoor Ahmed, Advocate

Respondent                 :           The State Through Abrar Ali Khichi,

Additional Prosecutor General Sindh

Date of hearing           :           08.11.2019

Date of Order             :           08.11.2019

ORDER

Abdul Maalik Gaddi, J. – Through instant bail application, applicant/ accused Irshad Ali @ Alu seeks post arrest bail in Crime No.298/2019 registered under Sections 6 & 9(c) of CNS Act, 1997 at P.S. Baghdadi, Karachi. Prior to filing this bail application, applicant approached to the trial Court for post arrest bail, but the same was dismissed vide order dated 17.10.2019. Hence this bail application.

2.         Brief facts of the prosecution case in nut shell are that on 10.10.2019, complainant ASI Safdar Abbasi, posted at PS Baghdadi, Karachi was busy in patrolling along with his subordinate staff. During patrolling when reached at Main Ahmed Shah Bukhari Road near U.C Office, Baghdadi, Lyari, Karachi at 0100 hours, found a person going towards Tenary Road in suspicious condition. The said person was apprehended who on inquiry, disclosed his name as Irshad @ Ullu son of Rehmatullah. On his personal search, a plastic shopper of blue color was recovered from his right hand, containing one packet of charas, weighed 1780 grams. The recovered property was sealed, mashirnama was written on spot. Accused was taken into custody by the police party & shifted to PS where the instant case was registered against accused.

3.         Learned counsel for applicant/ accused has contended that the applicant is innocent and has falsely been implicated in this case with ulterior motives and has committed no offence; that applicant was arrested from his street on 09.10.2019 in evening time and in this regard aunt of applicant namely Mst. Taj Bibi moved application to IG Sindh, DIG South, SSP South and SHO of PS Baghdadi through TCS against illegal confinement and for release of applicant, but all efforts went in vein; that as per contents of FIR, applicant is arrested from thickly populated area but no any independent witness is associated as mashir in this case which is violation of section 103 of CrPC; that applicant is not previous convict and trial still has not been commenced, therefore, applicant may be granted bail.

4.         Learned APG opposed the bail application on the ground that this is crime against society, however, he concedes that there is no criminal history of applicant.

5.         Parties advocates have been heard and record perused.

6.         After careful consideration of contentions of learned counsel for the parties and meticulous examination of available record, alleged contraband narcotics is 1780 grams charas. No private witnesses have been joined in recovery proceedings in spite of the facts that the incident took place in a populated area. No explanation has been furnished by the complainant in this regard; there is delay in sending the representative part of 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 is based upon the evidence of the police officials, therefore, their evidence are 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. Nothing on record that applicant is previously convicted or he has remained indulged in such type of activities in past. Since the trial has not yet been commenced. All the prosecution witnesses are police officials, hence there is no question does arise for tampering with the evidence by the applicant, therefore, further detention of the applicant in this case would not serve any purpose. Under these circumstances, I am of the view that scale of tilt in favour of the applicant for grant of bail in favour of the applicant.

7.         Keeping in view the above given circumstances, prima facie, applicant has succeeded to bring his case within the purview of sub-section 2 of section 497 CrPC, as such, applicant is admitted to post arrest bail subject to furnishing solvent surety in the sum of Rs.50,000/- and PR bond in the like amount to the satisfaction of the trial Court.

8.         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 applicants/ accused misuse the bail, then trial Court would be competent to cancel the bail of the applicants without making any reference to this Court.

            Instant bail application stands allowed in the above terms.

       JUDGE

asim/pa