IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Bail Appln. No.S-491 of 2024.
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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. Ghulam Yaseen A. Junejo, advocate for the applicant.
Mr. Aitbar Ali Bullo, D. P. G.
O R D E R .
KHADIM HUSSAIN SOOMRO, J-Applicant/accused Yaseen son of Mehar Jatoi, is confined in jail in Crime No.48/2024, registered at Police Station Dokri, 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 Sessions Judge/Special Judge for C.N.S. cases Larkana, vide order dated 05.08.2024; therefore, he has approached this Court for the same relief.
2. The details and particulars of the F.I.R. are already available in the bail application and crime report;the same could be gathered from the copy of the F.I.R. attached with the bail application; hence, it need not be reproduced hereunder.
3. Learned counsel for the applicant submits that the complainant illegally detained the applicant; thereupon, Mst. Saima, a sister-in-law of the applicant, had filed an application under section 491, Cr.P.C before the Sessions Judge, Larkana, in which the present applicant and his brother Perviaz were shown as detainees. Counsel also submits that the present applicant has been booked in an instant case whereas another detainee, Perviaz (brother of the applicant) had also been booked in another case by showing recovery of 01 Kg charas. Hence, both the brothers were victims at the hands of the police. Learned counsel also adds that as per the prosecution case, the applicant was arrested at the curve of Hassan Wahan Road, where traffic flow was there, yet no independent person was cited as a witness of the alleged recovery; that the case has been challaned and the applicant is not required for any further investigation. In the circumstances, learned counsel prays for a grant of bail.
4. Learned D. P. G., appearing for the State, submits that there is a criminal record of the applicant/accused, and he is nominated in as many as 12 F.I.R.s including C.N.S. cases and the recovery of 2050 grams of Charas was made from his exclusive possession. Learned D.P.G relies upon the case reported as 2021 SCMR 1212.
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 an admitted fact that the place of the incident is a curve of Hassan Wahan Village Road, 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.The reliance may be made on case of Zahid Sarfraz Gill v. The State (2024 SCMR 954).
7. As far as the criminal record of the applicant is concerned, in the case of Zafar Nawaz v. The State and another (2023 SCMR 1977), the Hon’ble Supreme Court of Pakistan has observed that the mere registration of other criminal cases against the accused does not disentitle him for the grant of bail if, on merits, he has a prima facie case. Reliance is also placed on the cases of Moundar and others v. The State (PLD 1990 SC 934), Muhammad Rafiq v. State (1997 SCMR 412), Syeda Sumera Andaleeb v.The State (2021 SCMR 1227) and Nazir Ahmed alias Bhaga v. The State (2022 SCMR 1467). Even otherwise, the prosecution launched against the accused prima facia smacked of police enmity. 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 furnishing solvent surety in the sum of Rs.100,000/- 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/**