IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 678 of 2023.
Applicant: Riaz Ali Jatoi, through Mr. Ghulam Yaseen A. Junejo, Advocate.
Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of Hearing: 19.01.2024.
Date of Order: 19.01.2024.
ORDER
Muhammad Saleem Jessar, J: Through the captioned bail application, applicant Riaz Ali son of Mehar Ali Jatoi is seeking pre-arrest bail in Crime No. 60 of 2023 registered at Police Station Dokri, District Larkana, for offences punishable under Section 9 (3) of Control of Narcotic Substances Act, 1997, read with Sections 353, 224, 225, 148 and 149 P.P.C.
2. Brief facts of the prosecution case have already been mentioned in the impugned order in para 2, which are reproduced hereunder:
“According to F.I.R on 14.10.2023 at 1430 hours complainant ASI Gul Bahar along with his staff consequent to spy information arrested applicant near Peer Manghan graveyard Butt Shakh and secured three kilograms charas and cash of Rs.150/- from his possession; in the meantime co-accused Babar, Pervez, Yasin and Saddam along with two unknown persons being armed with deadly weapons and lathis came there; deterred the police party and illegally got released arrested accused Riaz Ali and eluded.”
3. Learned counsel mainly contended that, the applicant is innocent and has falsely been implicated in this case by the police; that the alleged recovery is not from the exclusive constructive possession of the applicant but the same is foisted upon him later on. According learned counsel, the applicant was arrested before registration of the F.I.R and was wrongfully detained in the police station, as such her mother, namely, Mukhtiar Begum filed an application under Section 491 Cr.P.C. and later-on raid was conducted at police station but due to leakage of information the applicant was shifted from police station and could not be recovered, ultimately the police managed to register this F.I.R mentioning therein that applicant after his arrest by police was rescued and taken away by his co-accused. Per learned counsel it is very astonishing that, the co-accused who were having “lathis” and pistol rescued the applicant from custody of police personnel who were duly armed with sophisticated weapons. Per learned counsel in view of above position, the case of applicant requires further probe into his guilt, as such he prayed for confirmation of interim pre arrest bail.
4. Conversely, learned Deputy Prosecutor General opposed grant of bail to the applicant by contending that the applicant was apprehended alongwith huge quantity of charas on the spot under a mashirnama; however, he was got released by his co-accused from the custody of police and that this offense is not only heinous but badly affects the society as a whole.
5. I have heard learned counsel for the parties and perused the material available on the record.
6. It is case of the prosecution that applicant was arrested by the police alongwith charas, but he was got released by his co-accused from the custody of police. It is very astonishing and surprising that the co-accused (alleged associates of applicant) who were having “lathis” and pistol, rescued the applicant/ accused from custody of police personnel, who are very well-trained and at time of alleged incident they (police) were armed with sophisticated weapons. This episode requires deep scrutiny and probe, which can be undertaken only by the learned trial Court at trial. The mode of recovery, as, is disclosed in F.I.R., would also be seen by learned trial Court, whether the alleged recovery is from the exclusive and / or physical and constructive possession of the applicant or otherwise. Moreover, the prosecution has not claimed that the applicant is previously involved in the same nature of cases and there is nothing on record to show that the applicant is previously convicted in any case of such type. Per progress report furnished by the learned trial Court, most of the material witnesses have already been examined. Even otherwise, all the prosecution witnesses are police personnel, as such there is no likelihood of tampering with prosecution evidence by the applicant/ accused, if he is allowed to remain on bail. Moreover, the applicant has joined the trial and regularly attending the trial Court and no complaint with regard to misuse of concession of interim bail has been brought on record. Furthermore, no legal or technical purpose would be served by putting the applicant in jail/ behind the Bars, as it will prejudice his case at trial.
7. It is settled law, that every accused would be presumed to be blue eyed boy of the law until and unless he may be found guilty of the alleged charges and the law could not stretched upon in favor of the prosecution particularly at bail stage.
8. In view of foregoing, prima facie the applicant has succeeded to bring his case within the purview of subsection (2) of Section 497, Cr.P.C. Consequently, instant bail application is hereby allowed. Resultantly, interim pre arrest bail already granted to applicant, vide Order dated 16.11.2023, is hereby confirmed on same terms and conditions.
9. Needless to mention here that any observation, if any made in this order is tentative and shall not prejudice the case of either party in the trial. It is further made clear that in case the applicant misuses the concession of bail, then the trial Court would be competent to cancel the bail of the applicant without making any Reference to this Court.
Judge
Ansari