ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Bail Appln. No. S-  35 of 2013.

Date of hearing

Order with signature of Judge

13.12.2013.

1. For orders on office objection.

2. For orders on M.A. No. 225/2013.

3. For hearing.

Mr. Sarfraz Khan Jatoi, Advocate for applicant.

Mr. Imtiaz Ali Jalbani, A.P.G.

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Abdul Maalik Gaddi, J:      Through this application, the applicant/ accused Abdul Aziz Pathan has applied for grant of post arrest bail in his favour in Crime No.91/2012 of P.S Sultankot, (District Shikarpur), registered under Section 9 (c) of Control of Narcotic Substances Act, 1997.

2.         The bail application of the applicant was rejected by the learned trial Court vide its Order dated 17.01.2013, hence this bail application.

3.         It is alleged that on 11.11.2012, SIP Rafique Ahmed Khero SHO PS Sultankot alongwith his staff having left the Police station vide entry No.3, came at 16-Mori point and received spy information that one Abdul Aziz accompanied by two persons was taking charas in trolley of his tractor. At 9.30 a.m. the police party came near Ahmedpur on Shikarpur-Jacobabad road and saw the pointed tractor coming. They signaled the driver to stop, the tractor was stopped and all three accused alighted from it; took out T.T pistols and fired at police party with intention to kill them. The police party retailed in self defence. During encounter the police captured driver of the tractor, while remaining two persons succeeded to escape. On query driver disclosed his name as Abdul Aziz Pathan. One unlicensed T.T pistol, one currency note of Rs.1000/-, and NIC were recovered from his possession. The police party saw two bags lying in the trolley of tractor containing 35-packets of charas each. The substance was weighed and become 70-kilograms. Such memo was prepared in presence of mashirs ASI Suhno Khan and H.C Allah Dino. The accused and property were brought at P.S, where F.I.R was registered to the above effect, on behalf of the State.

4.         It is contended by the leaned counsel for applicant that the case against applicant/accused is false and has been registered due to enmity. It is also argued that both mashirs of recovery and arrest of the applicant/ accused are interested and police officials and they are subordinates of the complainant, therefore according to him false implication of the applicant in this case cannot be ruled out. He has further submitted that complainant received spy information on the main road Shikarpur-Jacobabad and at place of receiving spy information there was camp of construction company of the road, where so many labour and Chowkidars were available but the police did not bather to take independent person to act as mashir in this case. He has also argued that complainant has not stated that where they unloaded the tractor and in which measurement scale they took weight of the charas but simply stated that they found each piece to be of one kilogram, hence case of applicant requires further inquiry. He has further submitted that in-fact the applicant is not involved in this case but the contraband material has been foisted upon him. In support of his arguments he has submitted certified true copy of deposition of H.C/ Mashir Allah Dino recorded by the trial Court, who according to him has not supported prosecution case to some extent.  Learned counsel also argued that co-accused Iqbal has been granted bail by this Court and the case of present applicant almost appears to be on same facts. Learned counsel in support of his contentions relied upon case law reported in 2009 YLR 1825, 2005 P.Cr.L.J 643 and 2007 SBLR 1133.

5.         On the other h and learned A.P.G. has opposed the bail application, on the ground that name of the applicant is appearing in the F.I.R; huge quantity of charas was recovered from his possession and he was arrested at spot, such mashirnama was prepared at the spot in presence of mashirs who have no inimical terms with the applicant. He has also argued that case of the applicant is totally different to the case of co-accused Iqbal, who has been granted bail by this Court, therefore, he was of the view that applicant is not entitled for bail.

6.         Admittedly, the applicant was arrested at the spot and huge quantity of charas was recovered from his possession. The contention of learned counsel for the applicant that police involved the applicant in this case due to enmity/ malafide but applicant has failed to submit any evidence in shape of document on record to prove this fact. The applicant was arrested on the same day. His name is appearing in the F.I.R.  The recovery of charas measuring 70-kilograms was effected from his possession. As per statement of learned A.P.G whole quantity of charas was sent for chemical analysis and the report of chemical examiner is positive which is on record. Learned counsel has failed to explain that due to enmity with police how a huge quantity of narcotic can be foisted upon accused.

7.         As regards the contention of learned counsel that there is violation of Section 103 Cr.P.C. the said section has been excluded by Section 25 of CNS Act, 1997, as under the said provision it is not necessary in the narcotics cases that some private persons may be associated in the recovery proceedings and it is well settled law that evidence of a police official is as good as that of a private person, unless there exists any enmity with police. The case of co-accused Iqbal is on different footings, therefore, the rule of consistency does not apply to the case of present applicant.   Even otherwise, the offence falls under the prohibitory clause of Section 497 Cr.P.C. therefore, under the facts of this case, I am of the opinion that applicant has failed to make out a case of further inquiry, hence bail application is dismissed.

8.         The case law cited by the learned counsel has been perused and considered by me but did not find applicable to the facts of the present case, therefore the said case law is not helpful for him.

9.         Before parting with the order, I may mention here that observations if any in this order are tentative in nature and would not effect merits of the case. However, since the case pertains to 2012, I, therefore, direct the trial Court to conclude the trial within sixty days after receipt of this order. The compliance report should reach to this Court through Additional Registrar.

Judge