ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Bail Appln. No. S-519  of 2024.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

1. For orders on office objection ‘A’.

2. For hearing of bail application.

01.10.2024.

Mr. Habibullah G. Ghouri, advocate for the applicant.

Mr. Aitbar Ali Bullo, D. P. G.

O R D E R .

KHADIM HUSSAIN SOOMRO, J-Applicant/accused Waqar Hussain, son of Rehmatullah Detho, is confined in jail in Crime No.44/2024, registered at Police Station Mahota, for an offence under section 9 (3) (c) of the Control of Narcotic Substances Act. He applied for a grant of post-arrest bail, which was declined by the learned I-Additional Sessions/Special Judge for C.N.S. (MCTC) Larkana, vide order dated 27.08.2024; therefore, he has approached this Court for the same relief.

2.               According to the F.I.R., on 05.08.2024 at 0600 hours, complainant A.S.I. Nazir Ahmed Khokhar, during patrolling, arrested an applicant who was a black shopper, which was found to contain 2000 grams of Charas.

3.               Learned counsel for the applicant submits that the alleged Charas was foisted upon the applicant by the police; that the police have failed to associate independent mashir or witness though the alleged arrest and recovery is shown at Dodai bypass road leading to Ratodero, near Railway Mari Phatak, which is populated area; that the police officials have failed to record the video or photograph of alleged recovery at a particular place. He prayed that the applicant may be enlarged on the post-arrest bail.

4.               Learned D. P. G., appearing for the State, submits that a huge quantity of Charas weighing 2000 grams was recovered from the exclusive possession of the applicant. Learned D.P.G relies upon the case reported as 2021 SCMR 1212. Therefore, he prays that the applicant, in any manner, is not entitled to the concession of bail.

5.               I have heard learned counsel for the applicant, learned D.P.G for the State, and perused the material available on record.

6.               It is admitted that the alleged incident occurred at Dodai bypass road leading to Ratodero, near Railway Mari Phatak, where traffic was running smoothly. No doubt, 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 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 this regard, reliance may be made on the case of Zahid Sarfraz Gill v. The State (2024 SCMR 954).

7.               It is a well-settled principle of law that every accused would be presumed to be a blue-eyed boy of law until and unless he may be found guilty of the alleged charge. Law cannot be stretched in favour of the prosecution, particularly at the bail stage. Accordingly, I am of the considered view that the applicant has made out a good prima facie case of further enquiry within the meaning of subsection (2) of Section 497 Cr.P.C. Consequently, the bail application is hereby allowed, and the applicant is ordered to be released on bail subject to his furnishing solvent surety in the sum of Rs.50,000/- and P.R bond in the like amount to the satisfaction of learned trial Court.

7.               It is clarified here that if the applicant misuses the concession of bail or repeats the offence, the prosecution may file an application for cancellation of bail in accordance with law.

Judge

M.Yousuf P/**