ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No.  S- 277 of 2013.

Date of hearing

Order with signature of Judge

10.09.2013.

For hearing.

            Mr. Shahbaz Ali M. Brohi, Advocate for applicants.

            Mr. Imtiaz Ahmed Shahani, State Counsel.

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Abdul Maalik Gaddi, J:     Having remained un-successful in obtaining their release on bail in the case F.I.R No.08/2013, dated 13.4.2013, under Section 9 (c) of the Control of Narcotic Substances Act, 1997, of P.S Abad, District Jacobabad, the applicants Syed Gulab Shah and Mohammad Mithal Mahar are seeking their release on bail through instant bail application.

2.         The facts of the prosecution case as per F.I.R lodged by complainant ASI Anees Ahmed Soomro on 13.4.2013, at 1230 hours with P.S Abad, are that on 13.4.2013, he alongwith other subordinate staff left C.I.A Office vide roznamcha entry No.5, at 0900 hours in official mobile vehicle No. SP-4116, driven by PC Mohammad Ali for investigation of the case under Crime No.05/2013 of PS Abad; they reached near Mehar-Shah where they received spy information that one white colour Mehran car coming from Jacobabad side, wherein charas was lying. On such information they started checking the vehicles and at 1030 hours, they saw one white colour Mehran car bearing No. AB-8892, coming from Jacobabad, which was got stopped by them. The complainant by appointing PC Lal Mohammad and PC Ali Khan as mashirs alighted two persons sitting in the car and on enquiry the person seated on front seat disclosed his name as Syed Gulab Shah son of Syed Hyder Shah and other disclosed his name as Mohammad Mithal son of Mohammad Chuttal Mahar,  and on search of car, the complainant party recovered one yellow colour gunny bag from the car, wherein they found 08 packets of the charas. The complainant got weighed the same through PC Lal Mohammad which become 08 kilograms. The complainant party also recovered Nokia mobile phone 1112 and one currency note of Rs.500/- from possession of Syed Gulab Shah and a Nokia mobile phone C-1 and four currency notes of Rs.100/- from Mohammad Mithal. 200 grams of charas was separated from each packet for the analysis and such mashirnama of recovery was prepared on spot.

3.         Heard the learned counsel for the applicants, learned State Counsel and have perused the police papers with able assistance of the learned counsel for the parties.

4.         Learned counsel for the applicants mainly contended that the case against the applicants is false and has been registered due to enmity. Besides, according to him the case of applicants is based upon the evidence of police officials and they are subordinates to the complainant, therefore, their evidence in this case cannot be safely relied upon.  He has further submitted that recovered charas is foisted upon the applicants; the CIA Police is not empowered to recover the narcotic substances and there is delay in sending the samples to the chemical examiner, as such under these circumstances learned counsel was of the view that it is a case of further probe, therefore, the applicants are entitled for concession of bail. In support of his arguments, learned counsel has relied upon case law reported in 2011 MLD 958, 2012 MLD 1542 and 2012 MLD 220.

5.         On the other hand learned counsel appearing for the State opposed the grant of bail, maintaining that the applicants are involved in case of serious and heinous in nature and also against society. According to learned State Counsel eight packets of charas weighing 08 kilograms were recovered from possession of applicants, and out of each packet 200 grams were separated and sent for chemical examination and report; such mashirnama was prepared on spot in presence of mashirs who have no inimical terms with the applicants. He has further argued that report of the chemical examiner is positive, which connect the applicants with the commission of alleged offence which falls within the prohibitory clause of Section 497 Cr.P.C.

6.         I have given my anxious though to the contentions raised at the bar and have gone through the case papers as well as case law cited by learned Advocate for the applicants.

7.         Since both the applicants are nominated in the F.I.R with specific allegation that they were found in transportation of eight kilograms of charas through white colour Mehran car, which was under their control at the time of their arrest. No doubt, the complainant did not associate the private person as Mashir or witness to alleged recovery and only relied upon his subordinates; in my tentative view that mere fact that the witnesses are police official cannot be considered as a good ground to grant bail or discard their evidence except some malafides appear on the part of police officials. No documentary proof has been shown or produced with the instant bail application regarding enmity or ill-will of applicants with the complainant party to falsely involve them in this case. In order to meet the plea of learned counsel that the recovery mashirs are two police officials, therefore, their evidence cannot be relied upon safely, in this regard, I myself have gone through Section 25 of the CNS Act, 1997, which is clear and excludes the application of Section 103 Cr.P.C in narcotic matters. In this regard I am supported with case law reported in PLD 2009 S.C 39 and 2001 SCMR 36.

8.         Another ground raised by the learned counsel for the applicants regarding delay in sending the sample to the chemical examiner is concerned; rule IV and V have placed no bar on the Investigating Officer to send the sample beyond 72 hours of the seizure of the narcotic substances. While, to consider the ground taken by the learned counsel that CIA Police is not empowered to effect recovery of narcotic substances, it is deeper appreciation of evidence which is not permissible at bail stage, therefore, the case law relied upon by the learned counsel for applicants in this regard is totally distinguishable to the facts of the present case.  In the present case, the applicants were apprehended on spot alongwith huge quantity of charas; no enmity or ill-will has been brought on record by the applicants against the complainant, therefore, I am of the opinion that the applicants have failed to make out a case for grant of bail, resultantly the bail application stands dismissed.

Judge