ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

1st Crl. Bail Application No. S-562    of  2024

DATE

OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

 

1.   For orders on office objection.

2.   For hearing of bail application.

 

10.10.2024.

Mr. Aftab Ahmed Channa, advocate for the applicant.

Mr. Aitbar Ali Bullo, DPG.

 

O R D E R

KHADIM HUSSAIN SOOMRO, J.- Applicant Lal Bux alias Nainoo son of Wazir Ali Machhi, is confined in jail in Crime No.50/2024, registered at Police Station Ghouspur, for offence under section 9(b) of the Control of Narcotic Substances Act, 1997. He applied for grant of post arrest bail, but his request for turned down by the learned 1st Additional Sessions Judge/Special Judge for CNS cases, Kandhkot, vide order dated 23.09.2024.

 

2.         Facts of the prosecution case, in brief, are that on 31.08.2024, at 1600 hours, a police posse of PS Ghouspur headed by ASI Shoukat Ali Banglani during patrolling apprehended, on a tip-off, the applicant/accused Lal Bux alias Nainoo Machhi from near ‘Lakra’ Hotel situated on the main Indus Highway and recovered charas weighing 540 grams along with cash Rs.800/-, in shape of one currency note of Rs.500/- and three of Rs.100/-, in presence of mashirs PC Ghulam Mustafa and PC Rajo Khan. To such effect FIR on behalf of State was registered.

 

3.         Learned counsel for the applicant submits that as per prosecution case, the applicant was arrested near ‘Lakra Hotel’ situated on the main Indus Highway at Ghouspur town, but no independent person was picked or associated to witness the alleged recovery; that the offence carrying maximum punishment of 05 years does not attract the prohibition contained in Section 51 of the CNS Act, 1997; neither photographs nor video recording of the seizure and arrest were made; the case has been challaned and the applicant is not required to police for further investigation. Learned counsel, therefore, prays for grant of bail to the applicant. In support of his contentions, learned Counsel placed reliance upon the recent verdict of the Hon’ble Supreme Court in the case reported as Zahid Sarfaraz Gill v. The State (PLJ 2024 SC [Cr.C.] 8 ).

 

4.         Learned DPG, appearing for the State, does not oppose the bail application, contending that the offence with which the accused is charged does not fall within the prohibitory clause of Section 497, Cr.P.C.

 

5.         Admittedly, the recovery shown is of only 540 grams of contraband Charas from the applicant/accused and such recovery being less than one kilogram attracts the provision of Section 9(b) of Control of Narcotic Substances, Act 1997 providing a maximum sentence of 5 years, which does not exceed the prohibitory clause of Section 497, Cr.P.C. Undeniably, the provisions of Section 103, Cr.P.C are not applicable in the cases involving recovery of narcotic substances on certain places, as described under Section 25 of the CNS Act, 1997; nevertheless, the police could have recorded video and/or taken photographs of the recovery proceedings inasmuch as, Article 164 of the Qanun-e-Shahadat Order, 1984 specifically permits use to modern devices or techniques. Reliance in this regard is respectfully placed on the case of Zahid Sarfaraz Gill (supra).  In my humble opinion, this is fit case of further enquiry within the meaning of subsection (2) of Section 497 Cr.P.C.

 

6.         For the foregoing reasons, instant bail application is allowed. The applicant is directed to be released on bail subject to his furnishing solvent surety in the sum of Rs.50,000/- (Rupees fifty thousand) and P.R. Bond in the like amount to the satisfaction of learned trial Court.

           

 

                                                                                                                        Judge

 

 

 

 

 

 

 

Qazi Tahir PA/*