THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail No.S-440 of 2024
Applicant: Zeeshan,son of Raza MuhammadSohoo
throughMrNadeem Ahmed Qureshi, Advocate
The State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.
Date of Hearing: 04.09.2024
Date of Order: 04.09.2024
O R D E R
KHADIM HUSSAIN SOOMRO, J.-Through instant Criminal Bail Application, Applicant Zeeshanseeks post-arrest bail in the case emanating from F.I.R No.163/2024, registered at Police StationKamber-City under Section 9-C Control of Narcotic Substances Act, 1997 Amendment Act, 2022 after his bail plea was turned down by the learned1stAdditional Sessions Judge,Model Criminal Trial Court, Kambervide Order dated25.06.2024.Hence, this bail application.
2. The facts in a nutshell as per F.I.R. are that on 13.06.2024, Applicant/accused was arrested by the police party of P.S. Kamber-City, headed by A.S.I.Nazar Hussain Chandio, from Bagodero by-pass near the houses of the Bagiri community, situated in DehBagodero, Taluka Kamber, recovered 1500 grams of chars, carrying in a black colour shopper from the possession of the present Applicant/accused in front of Mashirs. Hence, the F.I.R.
3. Learned counsel for the Applicant/accusedhas contended that the Applicant/accused is innocent and has been falsely implicated by the police with malafide intention and ulterior motives; that thealleged chars shown to have been recovered from the Applicant is nothing but foisted one; that the recovery of charas is 1500 grams which falls within the borderline of Sections 9(b) and 9(c), CNSA, 1997. Therefore, he prayed that the Applicant/accused may be enlarged on bail.
4. Learned Additional Prosecutor General, Sindh, appearing for the State, has vehementlyopposed the grant of bail to the Applicant/accusedon the ground thatthe Applicant/accused is nominated in the F.I.R. with the specific role of carrying 1500 grams charas, which offence is against the society; there is no ill will on the part of the complainant/police to implicate the present Applicant/accused; therefore, he is not entitled to the concession of bail;hence, this bail application may be dismissed.
5. I heard counsel for the Applicant and learned Additional Prosecutor General Sindh and perused the material available on record.
6. Admittedly, the alleged place of incident is a by-pass near the houses of the Bagiri community, situated in DehBagodero, Taluka Kamber, which is a thoroughfare from where the alleged recovery of 1500 grams of charshad taken place, but the police official does not record or photograph the search, seizure, or arrest procedures. Article 164 of the Qanun-e-Shahadat, 1984, explicitly allows the use of evidence obtained through modern devices or techniques. Article 165 of the same law supersedes all other laws in this regard. The police officers are generally equipped with cell phones containing built-in cameras. Instant case modern devices and cameras have not been used.
7. Rule 4 of Control of Narcotics Substance (Government Analysts) Rules, 2001, states that a sealed parcel is to be dispatched for analysis under the cover of a Test Memorandum specified in Form-A at the earliest but not later than 72 hours of the seizure. In the instant case, the charas was allegedly recovered on 13.06.2024, but the same was sent to the chemical analyzer on 26.06.2024 with a delay of 13 days, and the Investigating Officer does not explain such delay, which makes the case of prosecution one of further enquiry.
8 In the case of ZahidSarfraz Gill V/S The State (2024 S C M R 934), the apex court has observed that Section 25 of the C.N.S. Act 1997, exempts the application of Section 103 of the Code of Criminal Procedure, 1898, which mandates the presence of two or more respectable local inhabitants during a search. Nevertheless, it is unclear why the police and Anti-Narcotics Force (A.N.F.) members do not record or photograph the search, seizure, or arrest procedures. Article 164 of the Qanun-e-Shahadat, 1984, explicitly allows the use of evidence obtained through modern devices or techniques, and Article 165 of the same law supersedes all other laws in this regard. In narcotics cases, prosecution witnesses are typically personnel from the Anti-Narcotics Force (A.N.F.) or police officers, who are generally equipped with cell phones containing built-in cameras. Given that the witnesses in such cases are predominantly government officials and there are usually few witnesses, trials often experience unnecessary delays. Consequently, the accused frequently seek bail initially from the trial court; if denied, they escalate their request to the High Court, and if still unsuccessful, they approach the Supreme Court. The use of mobile phone cameras by the police and A.N.F. to document the search, seizure, and arrest could serve as substantial evidence. Such recordings or photographs would help substantiate the presence of the accused at the crime scene, demonstrate possession of the narcotic substances, and validate the procedures of search and seizure. Moreover, this practice could mitigate false allegations against A.N.F. or police officials of fabricating evidence for ulterior motives
9. In view of the above,instant Bail Application is allowed. Applicant ZeeshanSohoois admitted to bail subject to his furnishing a solvent surety in the sum of Rs.100,000/- (Rupees One Hundred Thousand only) and P.R bond in the like amount to the satisfaction of the learned trial Court.
10. Needless to mention, the observations made hereinabove are tentative in nature and would not influence the learned Trial Court while deciding the case of either party at trial.
Judge
Manzoor