IN THE HIGH COURT OF SINDH, CIRCUIT COURT,LARKANA
1st. Cr. Bail Application No. S-560 of 2024
Applicant: Nawab Nindwani
Through Mr. Amanullah Luhur,
Advocate,
State: Through Mr. Aitbar Ali Bullo, D.P.G.
Date of hearing: 08-10-2024
Date of order: 08-10-2024
O R D E R
Khadim Hussain Soomro, Through this Criminal Bail Application, the Applicant Nawab son of Dadan @ Dadhan Nindwani, seeks post-arrest bail in Crime No.201/2024, registered at Police Station A-Section Kandhkot, District Kashmore @ Kandhkot, under Sections 9 (c) C.N.S. Act, 1997. After the rejection of his bail plea by the learned Sessions Judge/Special Judge for C.N.S., Kashmore @ Kandhkot, vide order dated 10.09.2024, hence he approached this Court.
2. Brief facts of the prosecution case are that on 13.07.2024 at about 0840 hours, complainant A.S.I- Muhammad Anwar lodged his F.I.R. alleging therein that he, along with his subordinates fully equipped with arms and ammunition in Govt. Vehicle No.SPE-862, driven by D.P.C Ghulam Rasool, left the Police Station vide Roznamcha entry No.45 for patrolling purposes; while patrolling different places, they reached a vegetable market where they saw one person was standing on the road holding a black colour shop in his hand after noticing the police tried to escape, but the police party stopped their vehicle and followed the accused and apprehended him. Upon inquiry, he identified himself as an applicant residing in the village of Kamal Khan Magsi, Taluka Tangwani, and further stated that he possessed Charas for the purpose of sale.The contraband material was weighed with a scale that became 1200 grams. The case property was sealed at the spot; after that, the accused and case property were brought to the police station, where this case was registered on behalf of the State.
3. The counsel for the Applicant/accused submits that the Applicant/accused is innocent and has been falsely involved by the complainant; that all the PWs are police officials and subordinate to the complainant, that the alleged Charas was foisted upon him; that the witnesses and mashirs of the case are police officials and subordinate of the complainant; that there is no criminal record of the Applicant/accused. He lastly prayed that the applicant/accused may be admitted on bail.
4. Learned Deputy Prosecutor General for the State opposed the grant of bail on the ground that the applicant/accused is nominated in the F.I.R, that the alleged Charas was recovered from the exclusive possession of the accused, that there is no ill will on the part of police to implicate the present accused; that the applicant/accused involved in the offence which is against the society therefore, he is not entitled to the bail.
5. I heard counsel for the applicant, learned Deputy Prosecutor General for the State and perused the material available on record.
6. According to the contents of the First Information Report (F.I.R.), the place of incident is a vegetable market that experiences significant foot traffic at all hours. It is unequivocally established that Section 103 of the Code of Criminal Procedure (Cr.P.C.) is not applicable in cases concerning the recovery of narcotic substances at designated locations as specified under Section 25 of the Control of Narcotic Substances (C.N.S.) Act, 1997. Nonetheless, the police could have documented the recovery proceedings through video recording and photography, as Article 164 of the Qanun-e-Shahadat Order, 1984, explicitly permits the use of modern devices and techniques for such purposes but the same were not used.
7. In the case of Zahid Sarfraz Gill V/S The State (2024 S C M R 934), the honourable apex court of Pakistan has observed that 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 and Anti-Narcotics Force (A.N.F.) 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 narcotics cases, prosecution witnesses are typically personnel from the Anti-Narcotics Force (A.N.F.) or police officers, who are generally equipped with cell phones containing built-in cameras. Given that the witnesses in such cases are predominantly government officials and there are usually few witnesses, trials often experience unnecessary delays. Consequently, the accused frequently seek bail initially from the trial court; if denied, they escalate their request to the High Court, and if still unsuccessful, they approach the Supreme Court. The use of mobile phone cameras by the police and A.N.F. to document the search, seizure, and arrest could serve as substantial evidence. Such recordings or photographs would help substantiate the presence of the accused at the crime scene, demonstrate possession of the narcotic substances, and validate the procedures of search and seizure. Moreover, this practice could mitigate false allegations against A.N.F. or police officials of fabricating evidence for ulterior motives.
8. Accordingly, the bail application stands allowed and applicant is admitted to post-arrest bail subject to his furnishing solvent surety in the sum of Rs.50,000/- (Fifty thousand rupees) and P.R bond in the like amount to satisfaction of learned trial Court.
9. Needless to mention here, the observations made in this bail order are tentative and shall not affect the merits of the case of either party during the trial.
JUDGE
S.Ashfaq