ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr.B.A.No.S-  596  of 2010

DATE                                     ORDER WITH SIGNATURE OF JUDGE

For hearing.

21.10.2010

Mr. Muhammad Sharif Sial, Advocate for applicant.

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

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By this order, I intend to dispose of Criminal Bail Application No.S-596/2010 filed by the applicant Porho alias Abdul Karim Lakho who is booked in Crime No.138/2010 of Police Station Kazi Ahmed for offence U/s 9 © of C.N.S Act, 1997.

The applicant approached the trial Court but his bail plea was turned down vide order dated 16.7.2010.

Briefly stated facts of the case are that on 26.5.2010 applicant was arrested by a police party headed by SIP Eidan Khan Sial, SHO PS Kazi Ahmed. From his body search police recovered 1200 grams charas and one 30 bore unlicensed pistol alongwith five rounds. Out of 1200 grams charas, 200 grams were sealed independently for chemical examination while 1000 grams were sealed separately. Such mashirnama was prepared at the spot in presence of HC Abdul Latif and HC Moula Bux.

It is inter alia contended that applicant is innocent and alleged charas has been foisted upon; the applicant has been involved in this case by police at the instance of his enemies; this is a border line case and it is yet to be determined whether the offence falls within the ambit of Section 9(b) or 9 (c) of C.N.S Act; the alleged recovery was affected on 26.5.2010 but chemical report has not been received as yet; PWs are subordinates of the complainant as well as they are interested; applicant is neither previous convict nor involved in any such type of cases.

Learned D.P.G for the State has opposed the bail plea of the applicant on the ground that 1200 grams charas has been recovered from him, therefore, his bail application be dismissed.

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

According to prosecution, the applicant was arrested from linke road near railway crossing of Kazi Ahmed. The contraband charas allegedly recovered from the applicant marginally exceeded from 1000 grams. Even the FIR and memo of recovery are silent whether the charas was weighed with rapper or without rapper. It appears that this is a border line case and it is yet to be determined whether the offence would fall U/s 9 (b) or 9 (c) of C.N.S Act. Neither any private person was associated to attest the recovery proceedings nor any effort was made by police party. Though the applicant was said to be arrested on 26.5.2010 but chemical examiner’s report is not received as yet. The applicant is said to be first offender and previously not convicted or booked in similar cases.

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 applicant deserves the concession of bail. Consequently, I allow this bail application and admit the applicant on bail subject to furnishing solvent surety in the sum of Rs.100,000/- (One lac) and P.R Bond in the like amount to the satisfaction of the trial Court.

Vide short order dated 21.10.2010, the applicant was admitted to bail for the aforesaid reasons.  

JUDGE

Tufail