ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                              Cr.B.A.No.S-  246   of   2014

DATE        ORDER WITH SIGNATURE OF JUDGE

16.05.2014.

Mr. Muneer Ahmed Turk, Advocate for applicant.

            Mr. Shahid Shaikh, A.P.G. for the State.

                                    =

MUHAMMAD JUNAID GHAFFAR, J:-             Through instant bail application, the applicant seeks bail in Crime No.113/2013 registered at Police Station Kot Ghulam Muhammad under section 9 (c) of Control of Narcotics Act, 1997. The earlier bail application filed by the applicant / accused before the trial Court was dismissed vide order dated. 06.02.2014, hence the instant bail application.

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

(i)        It is very strange to note that as per FIR, the complainant who is a police officer 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 his subordinate staff directly encircled the applicant / accused and thereafter purportedly searched the applicant and from his possession one black colored plastic bag was recovered which contained 1650 grams 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 the case of applicant that he has been falsely implicated in the case in hand by one Zamindar of his village and the applicant / accused is behind the bar since the date of his arrest i.e. 15.12.2013 and almost five months have been passed and further it is not likely that the case / trial will be concluded soon, and on this ground of hardship, learned A.P.G. conceded to the grant of bail to the applicant / accused.

(iv)      According to prosecution case, the 10 grams from each patti were separated and sealed for chemical examination on the same day  i.e. 15.12.2013 but the chemical examiner’s report shows that the same was sent by police on 17.12.2013 and the same was received on 19.12.2013 and malafide on the part of police for such a delay cannot be ruled out and this also makes the case of applicant one of further enquiry.

(v)       The applicant is behind the bar almost for a period of five 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, 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 would 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 A.P.G. had vehemently opposed the grant of bail to the applicant, however learned A.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 the 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.200,000/- (Two 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 A.P.G.                        

                                                                                                            JUDGE

Tufail