CR. BAIL APPLICATION NO.1376/2013

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Date                      Order with signature of Judge

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FOR HEARING.

 

08.11.2013

 

Mr. Muhammad Majid Afzal Khan advocate for applicant.

Mr. Muhammad Iqbal Awan, APG.

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                    Through instant application applicant seeks post-arrest bail in Crime No.148/2013, under section 6/9-C of Narcotic Act, PS Mehmoodabad.

2.                 Precisely, relevant facts are that complainant alongwith subordinate staff was on patrolling when they reached at Ashraf Colony, they found two persons suspicious thus arrest was made and recovery of contraband substance was effected. According to prosecution applicant Ilyas Saleem Mirza was in possession of 1700 grams charas whereas Muhammad Saleem was having 1300 grams charas. The property and accused were brought to police station, such FIR was lodged, after usual investigation both accused were sent up for trial.

3.                 Learned counsel, inter alia, contends that applicant has been booked in the instant case with ulterior motives, in-fact applicant before this incident, was arrested brother of applicant Muhammad Ali Mirza moved applications before the high-ups including the Honourable Supreme Court; applicant is not involved previously in any other case; alleged recovery is foisted upon him; there is difference between property mentioned in Mashirnama and sent to the chemical examiner. Though place of incident is thickly populated area but private witnesses were not joined in recovery proceedings, thus instant case falls within the scope of further enquiry.

4.                 Conversely, while refuting the above contentions, learned APG argued that alleged recovery is huge quantity of contraband substance, offence is against the society and applicant has failed to point out any enmity against police officials; directions can be issued to the trial Court to conclude the case within a short span.

5.                 After meticulous examination of contentions raised by respective counsel, it has surfaced that alleged recovery is charas, all witnesses are police officials though recovery place is a thickly populated area and it appears that there is difference of quantity of property in mashirnama of recovery and chemical examiner report; thus this aspect creates doubt and it is settled proposition of law that any doubt in prosecution case, even at bail stage can be extended to the applicant. Moreover, in case of Ghulam Murtaza reported in PLD 2009 Lahore 362, policy has been laid down regarding quantum of sentence. Instant dictum is upheld by the Honourable Supreme Court in case of Ameez Zaib reported in PLD 2012 (SC) 380 and Faridullah reported in PLD 2013 (SC) 302. Thus according to such policy instant case does not fall within prohibitory clause of sub-section 1 of section 497 Cr.P.C. Besides prosecution has not taken plea that applicant has any criminal history.

6.                 Keeping in view the above circumstances the applicant has succeeded to bring his case within the purview of sub-section II of section 497 Cr.P.C, hence he is admitted for post-arrest bail in the sum of Rs.100,000/- to the satisfaction of the trial Court. 

 

                                                                                      J U D G E

Imran/PA