ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANO

1^st Cr. Bail Application No. S-630 of 2023

Applicants:                                      1) Mst. Fareedan wife of Abdul Sattar Shaikh, 2) Mst. Sarwar Khatoon wif of Javed Ahmed Shaikh, 3) Mst. Hakim Khatoon wife of Jahangir Shaikh, and

                                                            4) Mst. Dadi wife of Mubarak Shaikh,

through Mr. Athar Abbas Solangi, Advocate. 

The State:                                          Through Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.

Date of hearing :  23.11.2023

Date of order     :  01.12.2023

O R D E R.

Muhammad Saleem Jessar, J.- The applicants seek their release on bail in F.I.R bearing Crime No.188/2023, registered at Police Station New Foujdari, shikarpur, for an offense under section 6/9-E Sr. 03, 9/D Sr. 1 Amended 2022 of the CNS Act, after the rejection of their bail plea by the learned 1^st Additional Sessions Jude/ MCTC, Shikarpur, vide order dated 23.10.2023.

2.                     Facts of the prosecution case, in brief, are that on 21.09.2023 a police posse of PS New Foujdari, Shikarpur, headed by SIP Mashooque Ali Shar, SHO of said police station, and accompanied by LHC/2180 Naseem Begum and LHC/2810 Saima, conducted raid at the Chiniggi Graveyard, Shikarpur under the directions of high-ups and apprehended the present applicants 1) Fareeda Khatoon, 2) Sarwar Khatoon, 3) Hakim Khatoon and 4) Dadi, along with three other persons, namely, Rizwan Ali, Gul Bahar alias Engineer, both by caste Shaikh, and Ali Jan Brohi, whereas four others made their escape good. During the personal search of present applicants conducted through above-named lady head constables, police recovered one shopper containing two patties of charas weighing one kilogram from the folds of applicant Fareeda, a shopper containing two patties of charas weighing one kilogram was recovered from the folds of applicant Sarwar Khatoon, a shopper containing two patties of charas weighing one kilogram from the folds of applicant Hakim Khatoon and one shopper containing two patties of charas weighing one kilogram from the folds of applicant Dadi. The charas recovered from the applicants was sealed at spot; then on the poitation of co-accused Rizwan Shaikh, 15 bachkas and sacks filled with charas and hemp were dug out from the graveyard concealed under the graves, wherein 38 packets of charas in each bachka, each packet weighing one kilogram, total 190 packets of charas, total charas weighing 4 mounds and 30 kilograms was secured; whereas 10 small and big sacks of hemp, weighing 20 kilograms of hemp, total weight of contraband became 5 mounds, were secured by the police, which were sealed separately. After preparation of the memo of arrest and recovery under the signatures of official mashirs, the accused along with recovered Chars were brought to the Police Station where F.I.R was registered on behalf of the State.

3.                     Learned counsel for the applicants contends that the applicants are innocent and have been falsely implicated by the police by foisting charas upon them; that all the witnesses are police personnel and sub-ordinates of the complainant, hence false implication of the applicants cannot be ruled out; that the police due to the political rivalry demolished the houses of applicants and their other community people, the applicants along with other relatives resisted to such unlawful act of police; hence, the police arrested the applicants and their relatives from their houses and implicated them in this false case; that all the accused roped in the aforesaid F.I.Rs are relatives inter se. Learned counsel for the applicants further contended that though as per F.I.R, the applicants were arrested from busy and populated area, but even then the police did not pick or associate any private person from the locality as mashir/witness of alleged recovery. Under these circumstances, learned counsel prayed the applicants may be enlarged on bail.

4.                     Learned Addl. P. G, vehemently opposes the grant of bail on the ground that huge quantity of contraband has been recovered from the possession of the applicants as well as on the pointation of co-accused and the applicants have not shown any mala fide on the part of the police, hence they do not deserve the concession of post-arrest bail.

5.                     I have heard the learned counsel for the parties and gone through the material placed on record.

6.                     Tentative analysis of the record, prima-facie, shows that a good rather huge quantity of charas in mounds has been recovered from the possession of the applicants and on the pointation of co-accused, which was concealed under the graves, thereby desecrating the sanctity of graves. Red-handed arrest of the applicants with a considerable quantity of contraband Charas, confirmed by positive Chemical Examiner’s report brings the case of the applicants within the sphere of Prohibition, contemplated by Section 51 of the Control of Narcotic Substances Act, 1997. The contention raised by learned Counsel that the applicants cannot be held responsible only for the reason that meager quantity of narcotics shown to have been recovered from each of them, carries no weight in view of the fact that huge quantity of narcotic substance was also recovered on the pointation of their male co-accused from same place/spot i.e. graveyard, where the applicants were present and were apprehended, coupled with the fact the applicants and those co-accused belong to same community, hence it can be presumed that entire narcotics was in joint possession of the applicants and their co-accused. Grant of concession of bail to female accused in such like cases would be unfair and presumably if such accused are released on bail, they would continue dealing with same business surreptitiously. Besides, it is settled that for deciding bail application the Court has to observe the tentative assessment, and a deeper appreciation of evidence is not required, as the story narrated by the learned counsel could only be ascertained when the prosecution witnesses are examined by the learned trial Court within a reasonable time. The applicants’ claim of false implication and other related grounds as raised above cannot be attended to at this stage, without going beyond the scope of tentative assessment, which is prohibited by law. The Hon’ble Supreme Court in the case reported as Noor Khan v. The State (2021 SCMR 1212) has held that claim of false implication of an accused cannot be attended without going beyond the barriers of tentative assessment, which exercise is prohibited by law. As per available record, prima facie, the view taken by the learned trial Court is not open to a disturbance at this point, till the evidence is recorded. It is also well-settled that police officials are good witnesses and their statement could not be discarded unless any enmity or ill-will is brought on record. Moreover, in view of Section 25 of the CNS Act, 1997, the application of Section 103, Cr.P.C in narcotics cases has been excluded. Discretion u/s 497, Cr.P.C cannot be exercised in such a case in favour of the accused as a routine.

7.                     In view of above, instant bail application being devoid of merit stands dismissed. However, the learned trial Court is directed to examine at least the complainant/Investigating officer as well as recovery mashir within two months’ time and report compliance through the Additional Registrar of this Court.

8.                     Before parting, it needs not to clarify that the observations recorded above, being necessary for the disposal of the instant bail application, are based on tentative assessment of the material brought on record, therefore, the trial Court shall not be influenced in any manner whatsoever; however, the directions contained in the order must be attended to positively.

                                                                                                  Judge