ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                              Cr.B.A.No.S-  627   of   2013

DATE        ORDER WITH SIGNATURE OF JUDGE

14.04.2014.

Mr. Mian Taj Muhammad Keerio, Advocate for applicant.

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

                                    =

MUHAMMAD JUNAID GHAFFAR, J:-             Through instant bail application, the applicant has challenged the order dated 22.07.2013 passed by learned IIIrd Additional Sessions Judge, Hyderabad in Crime No.03/2013 under section 9 (c) of Control of Narcotics Act, 1997, whereby the bail application of the applicant has been dismissed.

2.         I have heard learned counsel for the applicant and learned D.P.G. and my observations are as follows:-

(i)        It is very strange to note that as per FIR, the complainant who is an Excise Inspector had some spy knowledge about the applicant / accused as being involved in selling charas, but instead of engaging any private party to act as a customer for purchasing the said charas / drug from the applicant, the complainant alongwith Excise Constable directly introduced themselves as police officials and thereafter purportedly searched the applicant and from the fold of his Shalwar one black colored plastic bag was recovered which contained the alleged three pieces of charas.

(ii)       Similarly it is also very surprising to note that though the complainant had spy information and charas has been shown to have been recovered from the possession of applicant / accused but no efforts have been shown to have been made to engage any private mashir/witness instead of the police officials accompanying the complainant. This clearly makes the case of present applicant as of further inquiry.

(iii)       It is also very strange to note and observe that according to complainant all three pieces of charas were separately weighed and each patti of charas came exactly to 500 grams totaling 1500 grams. It does not appeal that how an exact quantity of 500 grams each could have been found without any variance of plus minus in the weight of patti of charas.

(iv)      It also does not appeal to a prudent mind that how the packet of 500 grams each totaling 1500 grams could have been recovered from the fold of the applicant’s Shalwar as 1500 grams is not that a small quantity which could have been kept in the fold of a Shalwar.

(v)       It is also stated in the FIR that samples of 10 grams were separated from each patti of charas of 500 grams and thereafter, sealed in a “dusty colored envelope” for chemical analysis and was sent to the laboratory. However, the laboratory report, as available in police papers, shows that three samples were received in the laboratory, and have been shown to be sealed in three separate khaki envelopes / parcels each of 10 grams with a gross weight of 15 grams each. This contradiction in drawing the samples, also makes the case of applicant as of further enquiry.

(vi)      The applicant is behind the bar almost for a period of 11 months and the maximum punishment which could be awarded to the applicant / accused in view of the judgment passed in the case of Ghulam Murtaza and another v. The State reported in PLD 2009 Lahore 362, is four years and six months, as such the applicant has already undergone a substantial part of his maximum punishment which could be awarded by the trial Court. Finally, the investigation in the matter is complete, challan has already been filed and no further evidence has been brought on record except the contents of FIR and therefore, if the applicant / accused is released on bail, it could not affect the prosecution’s case. It is also not the case of the prosecution that the applicant / accused is previous convict or has been previously involved in such crimes.

(vi)      Though the learned D.P.G. had vehemently opposed the grant of bail to the applicant, however learned D.P.G. had no answer to the question that as to how firstly neither any private person was engaged to act as a customer as there was a spy information available with the complainant, and secondly why no proper effort was made by the prosecution to engage and or arrange a private mashir as there was admittedly advance spy information with the prosecution.

3.         In view of hereinabove, I was convinced that in instant case there were sufficient grounds for further enquiry and the case of the applicant / accused was covered under section 497(2) Cr. P.C., consequently the applicant / accused had made out a case for admission to bail and by means of a short order, I had granted bail to the applicant / accused on furnishing surety of Rs.100,000/- (One lac) with P.R. Bond in the like amount before the trial Court. These are the reasons in support of said short order.  

4.         The above bail order has been passed by me in a shorter format prescribed by the Honorable Supreme Court vide its order dated 20.03.2014, passed in Criminal Petition No.203-L of 2014, whereby I have not reproduced the entire contents of the FIR as well as the details of the arguments so raised by the learned Counsel for the applicant as well as learned D.P.G.                        

                                                                                                            JUDGE

Tufail