ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
1st Cr. Bail Appln. No.S- 590 of 2023.
Date of hearing Order with signature of Judge.
1.For orders on office objections as flag A.
2.For hearing of bail application.
Applicant : Through Mr.Saeed Ahmed Bijarani, Advocate.
(Amjad Ali Bijarani)
The State : Through Mr. Khalil Ahmed Metlo, Asstt: P.G.
Date of hearing : 23.11.2023.
O R D E R.
Through this application, applicant seeks his admission on post arrest bail in Crime No.118 of 2023 of P.S Kashmore for offences under Sections 9(c) CNS Act 1997. Applicant filed post arrest bail application before the Court of Sessions which subsequently was assigned to 1st Additional Sessions Judge, Kandhkot viz-a-viz Cr.Bail Appln.No.19 of 2023 where after hearing the parties his request was turned down vide order dated 12.10.2023, hence this application has been maintained.
2. Since the facts of the prosecution case are already mentioned in the FIR as well as bail application and the order passed by trial Court, therefore, there is no need to reproduce the same.
3. Learned counsel for the applicant submits that two employees from WAPDA were abducted by the outlaws therefore, employees had held procession under leadership of present applicant and he is also employee of SEPCO as L.S, therefore, police concerned annoyed and he was booked by them on 30.5.2023, therefore, his father in law Nooruddin had filed application U/S 491 Cr.P.C vide Cr. Misc. Appln.No.16 of 2023 before the Court of Sessions which subsequently was assigned to 2nd Additional Sessions Judge, Kandhkot where due to failure of raid it was disposed of on 07.6.2023. Before dismissal of said application, the police have shown him arrested on 06.6.2023, during pendency of said application as well as his confinement, the applicant has been arrested alongwith contraband as shown in the FIR. He further submits that after registration of the case, the FIR was disposed of under A class but by learned Civil Judge and Judicial Magistrate-2, Kashmore who vide Summary order by not concurring with the police report, took cognizance and forwarded the same to Court of Sessions for trial being the Court having ultimate jurisdiction. He further submits that as far as recovery is concerned, it is yet to be established by the prosecution by recording evidence of prosecution witnesses and then trial court being competent has to determine it. Hence at this juncture, case against the applicant requires further enquiry and pray for grant of bail. In support of his contentions, he has relied upon the unreported authority/order dated 19.4.2023 passed by this Court in 1st Cr. Bail Appln. No.S-201 of 2023 re: State v. Noor Zaman v. The State.
4. Mr.Khalil Ahmed Metlo, Assistant P.G opposed the bail application on the ground that applicant was not only nominated in the FIR but was also found in possession of 3000 grams charas which is heinous offence, hence he is not entitled to the concession of bail. He however, is not in a position to controvert the fact that per averments mentioned in the habeas corpus petition, he was arrested by the police on 30.5.2023 and later was shown arrested on 06.6.2023 with the delay of about six days and no plausible explanation has been furnished by the prosecution for such an inordinate delay. He also admits that during investigation, case against the applicant was disposed of under A class. Even then he is arrogant to oppose the bail application.
5. Admittedly the applicant has brought on record documentary evidence which shows that police have registered instant case against the applicant due to annoyance, therefore, plea taken by the applicant to the effect that the then SSP had implicated him in this case so that he may not hold procession against the police carries weight. The case was investigated by the police themselves, therefore, it was disposed of under A class. The applicant was found innocent however, the Magistrate did not concur with the opinion of police report which resulted in his in confinement in this case. The accusation against applicant is yet to be determined by the trial Court after recording pro and contra facts through evidence. More over applicant is a government servant therefore, question of his absconsion or tampering with the prosecution evidence does not arise as the complainant and P.Ws are from Police Department.
6. Since the prosecution itself had dented its own case by releasing the applicant during investigation placing his name under column II of the challan and disposed of the FIR under A Class and later it was challaned at the directions of learned Magistrate. Hence I.O who conducted the investigation may not depose against him at the time of trial if he may be tutored to support the version of the FIR. Even then, presumption would be drawn that case against applicant will be of two version. Hence which one is correct and which is incorrect is a question which is yet to be decided by the trial Court after recording evidence.
7. It is well settled principle of law that every accused would be presumed to be blue eyed boy of the law until and unless he may be found guilty of alleged charge and law can not be stretched upon in favour of the prosecution particularly at bail stage. In instant case, the documentary evidence as well as plea taken by the applicant regarding his missing at the hands of police can not be brushed aside only because of the fact that a huge quantity of contraband has been shown to have been recovered from him particularly when the applicant denied it and claimed it has been foisted upon him.
8. At this juncture, in my view applicant has successfully made out a good prima facie case for his release on bail. Consequently, instant bail application is hereby allowed. The applicant is granted post arrest bail subject to furnishing solvent surety in the sum of Rs.100,000/= (Rupees one hundred thousands) and P.R bond in the like amount to the satisfaction of trial Court.
9. It is needless to say that observations made herein above are tentative in nature which shall not influence the mind of the trial Court while deciding fate of the case finally.
The applicant stands disposed of. JUDGE
shabir