ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Cr. Bail Appl. No. S-555 of 2012
|
Date of hearing |
Order with signature of Judge |
08.02.2013
Mr. Asif Ali Abdul Razzak Soomro, Advocate for applicants.
Mr. Riaz Hussain Khoso, State counsel.
-.-.-.
Muhammad Shafi Siddiqui, J.- This is an application filed by the applicants for grant of bail in respect of an offence, registered as Crime No.69/2012, with P.S. Sultankot, under section 9(c) of the Control of Narcotics Substances Act, 1997.
2. The case of prosecution is that on 20.7.2012 complainant SIP Muhammad Sulleman Pathan lodged FIR at P.S. Sultan Kot (District Shikarpur), in the following wording:-
“It is complained on behalf of the State that, today I along with subordinate staff namely H.C Allahdino Jafferi, P.C Muhammad Bux Jafferi, P.C Karim Bux Jafferi took investigation beg and left police station for patrolling in private vehicle, vide roznamcha entry No.17. After patrolling from various places we reached near Dost-Wah along Shikarpur via Jacobabad where we stopped the vehicle and started checking. It was about 1900 hours, we saw two persons on one motorcycle coming from Jacobabad side. We signaled them to stop, but they left their motorcycle and started running away. We chased and arrested them. On query, they disclosed their identity to be Hazoor Bux son of Abdul Khaliq Brohi, and 2. Abdul Ghafoor son of Rahim Bux Brohi. Thereafter, motorcycle was checked and we found one black color plastic bag hanging on the handle of motorcycle. We opened the plastic bag and found two patties and one small piece of charas wrapped in white cloth, which were taken in police custody. H.C Allahdino Jafferi and P.C Karim Bux Jafferi were appointed to act as Mashirs and then body search of accused was conducted. One currency note of Rs.100/- was secured from front side pocket of Qamees of accused Hazoor Bux and one currency note of Rs.50/- from front side pocket of Qamees of accused Abdul Ghafoor. Accused owned charas and further disclosed that they used to sell the same. Accused also could not produce registration papers of motorcycle. Charas was weighed which became 1050 grams and entire contraband was sealed for chemical analysis. Thereafter, mashirnama was prepared on the spot with signatures of both mashirs. Then accused and the recovered property were brought at police station. Since the above named accused have kept charas into their possession as such FIR for committing an offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, is lodged against them on behalf of the State.”
3. It is contended by the learned counsel for the applicants that the alleged contraband was not stated to be recovered from the exclusive possession of the applicants and all that has been stated is that it was recovered from a motorcycle which was left by the applicants on the road before they started running away on their apprehension to be arrested at the hands of the officials. It is contended that it has not been disclosed as to how the said contraband was weighed as they were said to be containing only investigation bag which investigation bag in terms of Article 25.58 of Police Rules, 1934, does not include the measuring pan or apparatus. The list of articles as included in the investigation bag is as under:-
· One bottle of grey powder.
· One bottle of graphite powder
· One camel hair brush
· Folien paper
· Finger print forms
· Finger print ink
· Appliance for finger printing dead bodies
· One magnified glass
· One finger print impression pad and roller
· One electric torch
· One knife
· One pair of scissors
· One measuring tape 60’ long
· One foot rule 2 feet long
· Sealing bags and candles
· Formalin diluted to 10 per cent together with chloride of line to counter-act decomposition of corpses.
· Cotton wool and 1½ yards cloth for packing exhibits
· Case diary book with plate, pencil or pen, carbon paper and the usual forms required in investigation.
It is further contended that it was not the Anti-Narcotic Force who apprehended the applicants but only officials from PS Sultan Kot who apprehended the applicants. It is contended that without prejudice to the above, it is even otherwise a borderline case, as only 1050 grams of charas is alleged to have been recovered from two applicants and at most only 525 grams can be foisted on each though not admitted by the applicants. Learned counsel further submits that a prudent mind would not believe the prosecution story that on seeing police officials the applicants left the motorcycle and started running away although they could have drove away faster on motorcycle.
4. Learned counsel further submitted that, it is a case of further inquiry and relied upon following cases:
· Muhammad Ullah v. The State (2009 SCMR 954)
· Jamaluddin alias Zubair Khan v. the State (2012 SCMR 573)
· Mohsin Abbas v. The State & another (2011 P.Cr.L.J. 1817)
· Ibrar v. the State (2008 P.Cr.L.J. 1449)
5. It is further contended that in view of the above referred judgment at Sr. No.1, it was observed by the Hon’ble Supreme Court of Pakistan, as under:-
“We have considered the arguments of learned counsel for the parties and have gone through the material produced on record. Admittedly the contrabands were not recovered directly from the possession of the petitioner rather it was recovered from the cabin made on the roof. The question whether the cabin on the roof of the bus was in the exclusive use of driver or for the passengers cannot be decided here as it is a factual controversy which cannot be resolved in a bail petition. Therefore, we are of considered view that case of the petitioner is of further inquiry. Accordingly, this petition is converted into appeal and is allowed.”
6. In terms of the judgment referred above at serial No.2 above, it is observed by the Hon’ble Supreme Court of Pakistan while hearing bail application that the Court is not to keep in view the maximum sentence provided by the Statute but the one which is likely to be entailed in the facts and circumstances of the case. The relevant portion of the aforesaid judgment is as under:-
“4. Without entering into the merits of the case, as the quantum of sentence has to be commensurate with the quantum of substance recovered, we doubt the petitioner can be awarded maximum sentence provided by the Statute. Needless to say that the Court while hearing, a petition for bail is not to keep in view the maximum sentence provided by the Statute but the one which is likely to be entailed in the facts and circumstances of the case. The fact that petitioner has been in jail for three months yet commencement of his trial let alone its conclusion is not in sight, would also tilt the scales of justice in favour of bail rather than jail.
5. The argument that the petitioner has been involved in two other cases of similar nature would not come in the way of grant of petition so along as there is nothing on the record to show that he has been convicted in any one of them. We, therefore, convert this petition into appeal and allow it. The appellant shall be released on bail subject to furnishing bail bonds in the sum of Rs.200,000 (Rupees two lacs) with two sureties in the like amount to the satisfaction of the trial Court.”
7. Similarly, in the case of Mohsin Abbas referred above at Sr.No.3, it was observed that the narcotic substances exceed only by 200 grams which makes the case of the petitioner as of borderline case. In the present case only 50 grams allegedly exceeded, therefore, case of the applicant is on better footings as compared to the case of Mohsin referred above.
8. Lastly, learned counsel relying upon case of Ibrar at Sr.No.4, submits that the learned Single Judge observed that without discussing deeper merits of the case at the stage of bail prima facie the accused/petitioner’s case fall within further inquiry entitling him to concession of bail, as it was yet to be determined at trial whether the case fall under Section 9(b) or 9(c), of the Control of Narcotics Substances Act, 1997, being a borderline case and there was no independent witness to the recovery. The relevant portion of the said judgment is reproduced as under:-
“Without discussing deep merits of the case at this stage, prima facie, the case of the accused/petitioner falls within the ambit of further inquiry entitling him to the concession of bail, as it is yet to be determined at the trial whether the ease falls under section 9(b) or 9(c) C.N.S.A. being of a border line case and there is no independent witness to the recovery.”
9. On the other hand learned State counsel has vehemently opposed the bail application and stated that this is social crime and unless these offences are nipped in the bud, the society cannot improve. Learned State counsel relied upon the case of State v. Abdul Ghani (2010 SCMR 61), which is case of cancellation of bail. Learned State counsel further submitted that in view of observations made in the aforesaid judgment the applicants are not entitled to the concession of bail, as it is observed in the said judgment that the offence falling within prohibition contained in Section 497(1) Cr.P.C. and that the accused was found in exclusive possession of the narcotic substances. Learned counsel further submits that in these cases private witnesses do not appear or come forward and it is for this reason that the private witnesses are not shown.
10. I have heard the learned counsel and perused the record. It is the matter of fact that applicants are booked under section 9(c) of the Control of Narcotic Substances Act, 1997, however, a few questions emerge out of the prosecution story. Firstly officials of P.S Sultan Kot were on patrolling in private vehicle along with investigation bag. It is under normal circumstances that these officials do not carry the measuring/weighing apparatus and investigation bag does not mean include measuring/ weighing apparatus. It is only Narcotic Force which do, while patrolling, carry such equipments. It is stated in the FIR that quantum of the alleged charas was measured by these officials in their own measuring apparatus, which measuring apparatus does not seem to be carried by them. It was only found to be exceeding 50 grams from the weight, which is required to consider it a case under Section 9 (b) of Act 1997 as it exceeds only 50 grams. The other point that is mind boggling is the contention of State counsel that the applicants while seeing officials left the motorcycle and started running away. It has not been stated as to how and why they started running away when they could easily whisked away faster than by running on their own.
11. Although one of the applicants, namely, Hazoor Bux is stated to be involved previously in offences registered as Crime No.21/2010 and Crime No.06/2012, both at P.S. Sultan Kot; however, it has not been disclosed that as to what was the fate of such offences/trial. Similarly, the possibility of enmity with officials cannot be ruled out. It is observed that until and unless the applicants are convicted such applicants can only be considered as innocent.
12. In view of the facts and circumstances, it appears to be only a borderline case and in view of the above facts, it is case of further inquiry, I, therefore, grant this application subject to furnishing solvent surety by the applicants in the sum of Rs.250,000/- (Two hundred fifty thousand) each and P.R. bond in the like amount to the satisfaction of the trial Court.
JUDGE