IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-71 of 2022

Applicant: Yar Muhammad, through

Mr. Irshad Ali Ghangro, Advocate

Respondent: State through Mr. Shafi Muhammad Mahar, Deputy Prosecutor General

Date of hearing: 28.02.2022

Dated of order: 28.02.2022

O R D E R

Zulfiqar Ali Sangi, J: Applicant/accused Yar Muhammad son of Yaqoob Ghangro seeks his post-arrest bail in FIR No.06/2022, registered at Police Station Setharja, under section 9(c) of the Control of Narcotic Substance, Act, 1997. His earlier bail application was declined by the learned 1^st Additional Sessions Judge (MCTC)/Special Judge for (CNS), Khairpur, vide order dated 08.02.2022.

2. The allegation against the present applicant is that he was apprehended by the police party of police Station Setharja headed by SIP Abdul Ghafoor and 1130 grams Charas was recovered from his possession for which present case was registered.

3. Learned counsel for the applicant has contended that the recovery proceedings are in violation of section 103 Cr.P.C and the applicant has falsely been implicated by the police as prior to present FIR the brother of applicant namely Abdul Hafeez had filed Cr. Misc. Application No.360/2016 for registration of FIR against the SHO Police Station Setharja which was allowed. He next contended that it is a case of border line between section 9(b) and 9(c) of CNS Act, 1997 which comes within the scope of section 9(b) of CNS Act, 1997 and does not fall within prohibitory clause of section 497 Cr.P.C. He further contended that the applicant is in custody and no more required for further investigation, as such the applicant is entitled for concession of bail.

4. On the other hand learned DPG has opposed the grant of bail contending that a considerable quantity of 1130 grams charas has been recovered from the possession of applicant and since the offence is against the society, therefore, it comes within exceptions for refusal u/s 497 Cr.P.C, hence the applicant is not entitled for grant of bail.

5. I have heard learned counsel for the applicant, learned DPG for the state and have gone through the material available on record with their able assistance.

6. The applicant was apprehended by the police and allegedly 1130 grams Charas was recovered from his possession which marginally exceeded upper limit of section 9(b) of CNS Act and it is case of border line between clauses (b) and (c) of section 9 of Control of Narcotic Substances Act 1997. In this regard I am fortified by the case law reported as, Sheeren Muhammad v. The State (2006 P.Cr.L.J 726), Mehboob Ali v. the State (2007 YLR 2968), and Ayaz v. The State (2011 P.Cr.LJ 177). Besides the applicant has claimed his false implication due to previous grudge as earlier his brother had filed an application against the SHO PS Setharja for registration of FIR which was allowed. Further the private witnesses were not associated in the recovery proceedings as such non-association of private mashirs / witnesses coupled with other above grounds brings the case one of further enquiry. Moreover, the applicant is in custody and is no more required for further investigation.

7. It is settled principle of law that while deciding the bail plea of accused deeper appreciation of evidence is not permissible and the material is to be assessed tentatively. From the tentative assessment of material available on record as discussed above, the applicant has been able to make out a case of further inquiry into his guilt. Resultantly, this application is allowed and the applicant is granted post-arrest bail subject to furnishing his solvent surety in the sum of Rs.50,000/- (rupees fifty thousand), and PR bond in the like amount to the satisfaction of the trial court.

8. Observations made herein above are tentative in nature and will not cause any prejudice to either party at the trial.

JUDGE

Suleman Khan/PA