IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Bail Application No.S-672 of 2021

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE.

1. For orders on O/objection at flag-A.

2. For hearing of bail application.

Date of hearing 18.11.2021

Syed Jaffer Ali Shah Advocate for applicant.

Mr. Mohsin Ali Khan Special Prosecutor, ANF.

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O R D E R

Mohammad Saleem Jessar, J; Through this bail application, the applicant Abdul Hameed son of Muhammad Wariyal Shaikh seeks his admission on post-arrest bail in Crime No.16/2021, registered with Police Station, ANF district Sukkur under Section 9(c) of Control of Narcotic Substance Act, 1997. The case has been challaned by the Police which is now pending for trial before the Court of III-Additional Sessions Judge/ MCTC-II, Special Judge CNS, Sukkur vide Special Case No.125/2021 Re-State v. Abdul Hameed. The applicant preferred bail plea before the trial Court which by means of an order dated 12.10.2021 was turned down hence, this application has been maintained.

2. The crux of the prosecution case is that on 27.09.2021 at about 0640 hours (night time) applicant Abdul Hameed was arrested by Police party of Police Station ANF, headed by Inspector/SHO Muhammad Saqlain, at City point National Highway Sukkur and 1100 grams Charas was recovered from accused in presence of mashirs ASI Rana Abu Bakar and PC Ahmed which subsequently was sealed on spot. The complainant brought the accused and case property at Police Station and lodged FIR against the applicant on behalf of the State.

3. Learned counsel for applicant contends that the meager quantity of contraband is allegedly shown to have been recovered from his possession whilst selling it at City point, Sukkur. Next submits that place of incident as shown is a public thoroughfare where so many people used to remain present; however, not a single witness was associated to witness the recovery proceedings. He further submits that allegation of selling contraband has been leveled but not a single consumer/customer was captured by the raiding party therefore, question of his being available at the relevant place for the purpose shown against him is yet to be determined by the trial Court. He, therefore, submits that case is of border line which requires further inquiry hence, he is entitled to post-arrest bail. In support of his contentions, learned counsel has relied upon the case of Aya Khan and another v. The State (2020 SCMR 350), Nasir Mehmood v. The State (2021 P.Cr.LJ 443)

4. On the other hand, learned Special Prosecutor ANF opposes the bail application and submits that 1100 grams Charas is shown to have been recovered from his possession therefore, applicant is not entitled for his release on bail. He further submits that application of Section 103 Cr.P.C stands ousted as is embodied under Section 25 of CNS Act, 1997 hence, arguments of learned counsel for applicant to that extent is irrelevant. He; however, could not controvert the fact that the place of incident as shown is public thoroughfare and customer or the person to whom he was allegedly selling the contraband were not associated or have been made witness in this case by the police. In support of his contentions, he relied upon the case of Noor Khan v. The State (2021 SCMR 1212)

5. Heard arguments and perused the material available on record.

6. Admittedly, the place of incident is public thoroughfare as it is a transport Ada where so many people including the transporter used to remain available; however, none from them was associated as witness in this case. No doubt, applicability of Section 103 Cr.P.C is ousted under the Act, yet Police Officer went to charge a person for the offence which carries punishment in shape of his detention then it was incumbent upon the Police Officer to associate independent person for witnessing the recovery proceedings. In case of Nasir Mehmood (Supra) learned bench of this Court granted bail to the applicant from whose possession 2040 grams of contraband was recovered. In case of Aya Khan (Supra) the Honourable Supreme Court of Pakistan also granted bail to the petitioner from whom 1100 grams of Heroin powder was recovered.
In case of Noor Khan (Supra) the petitioner was declined bail by the Honourable Supreme Court of Pakistan on the ground that 1320 grams of cannabis was shown to be recovered from him and circumstances of that case are distinguishable from the present case. It is by now well settled law that if there accrues some doubt in a case of any accused even at bail stage, the benefit whereof can be extended to him. So is the situation in the case in hand as all the witnesses are police officials and in absence of any impartial witness their integrity is required to be scrutinized, which could only be ascertained when their evidence will come on record, since then applicant, whose case appears to have fallen within the meaning of Sub-Section (2) of Section 497 Cr.P.C cannot be kept behind the bars. Further, the case has been challaned and applicant is no more required by the Police for the purpose of investigation or interrogation.

7. The upshot of above discussion is that applicant has made out a good prima facie case for his release on bail. Accordingly, the application is allowed. The applicant shall be released on bail subject to his furnishing solvent surety in the sum of Rs.100,000/- (Rupees One lac) and PR bond in the like amount to the satisfaction of learned trial Court.

8. Needless to mention here that the observations made hereinabove are tentative in nature and shall not influence the trial Court for deciding the case of the applicant on merits and in case applicant try to misuse the concession of bail in any manner, the trial Court shall be at liberty to cancel the bail after giving him the requisite notice.

J U D G E

Ihsan