ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr.B.A.No.S-  530  of 2009

DATE                                     ORDER WITH SIGNATURE OF JUDGE

For hearing.

20.09.2010

Mr. Aziz Ahmed Leghari, Advocate for applicants.

Syed Meeral Shah, D.P.G for the State.

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Applicants seek post arrest bail in Crime No.83 of 2010 of Police Station Dighri for offence U/s 9 © of C.N.S Act, 1997.

The applicants approached the trial Court but their bail plea was turned down vide order dated 1.7.2010.

The facts giving rise to this application are that on 1.6.2010 applicants were arrested by a police party headed by SIP Ghulam Nabi Shar SHO PS Dighri from Dighri Tando Jan Muhamad main road and recovered 1000 grams charas from each of the applicants. Out of which samples of 10 grams each were separated for chemical examination while remaining charas was sealed separately. On inquiry, the applicants/accused disclosed that they have purchased the charas from one Anwar alias Anoo Raangar.

It is inter alia contended that applicants are innocent and they have nothing to do with the charas. Per learned counsel, the charas has been foisted upon the applicants. The co-accused Anwar alias Anoo Raangar has been let off by police and his name has been placed in Column No.2 of the challan though per prosecution, he is the whole seller and the present applicants have purchased the charas from him but instead of catching the big fish, the present applicants have been made escape goat by the police. It is further contended that applicants have been arrested from the main road but not a single person of the locality has been cited as witness. It is lastly contended that offence does not fall within the prohibitory clause of Section 497(1) Cr.P.C.   

Learned D.P.G for the State has opposed the grant of bail to the applicants/accused on the ground that huge quantity of charas has been recovered from them.

Heard learned counsel for the parties and perused the record minutely.

Admittedly, both the applicants were found in possession of 1000 grams charas each and admittedly the case falls U/s 9 (b) of C.N.S Act, 1997 which is punishable upto 07 years hence does not fall within the prohibitory clause of Section 497(1) Cr.P.C. Neither any private person was associated to attest the recovery proceedings nor any effort was made by police party. Moreover, co-accused Anwar alias Anoo Raanger who per prosecution is selling charas has been let off by police as his name has been placed in Column No.2 of the challan. Such conduct on the part of Investigating Officer reflects that a big fish has been spared and the applicants have been challaned. It is very strange that a person who is allegedly providing charas to the retailers has been spared. The applicants are not said to be previous convictees or previously indulged in similar activities.

For the foregoing reasons and the dictum laid down in the case of Mehboob Ali Vs. The State (2007 YLR 2968) where the charas weiging 1010 grams was recovered from the accused, he was granted bail on the ground that quantity having marginally exceeded the limits of 1000 grams and it is a case of border line comes within clauses (b) and (c) of Section 9 of C.N.S Act, 1997. Under the similar circumstances, in the case of Sherin Muhammad Vs. The State (2006 P.Cr.L.J 726), the accused was granted bail though he was found in possession of charas weighing 1123 grams. Following the dictum laid down in the above cases, I am of the considered view that the applicants deserve the concession of bail. Consequently, I allow this bail application and admit the applicants on bail subject to furnishing solvent surety in the sum of Rs.100,000/- (One lac) each and P.R Bonds in the like amount to the satisfaction of the trial Court.

Vide short order dated 20.9.2010, the applicants were admitted to bail for the aforesaid reasons.  

JUDGE

Tufail