ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Bail Appln. No.S-377  of   2009.

Date of hearing

ORDER WITH SIGNATURE OF HON’BLE JUDGE

13.7.2009.

For hearing.

Mr. Ashique Illahi Sundrani, advocate for the applicant.

Mr. Naimatullah Bhurgri, State Counsel.

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                   The applicant Ghulam Sarwar Bangwar filed this bail application through Mr. Ashique Illahi Sundrani, advocate, for his release on bail in crime No.13/2009, registered at Police Station Miani Katcho at Badani on 9.5.2009, under Section 9(c) of the C.N.S. Act, 1997.

                   Brief facts of the prosecution case as disclosed in the F.I.R lodged by complainant SIP Obhayo Mirani, S.H.O PS Miani Kacho at Badani are as under :-

                   “Complaint on behalf of state is that today we along with subordinate staff namely HC Alamgir Chachar, PC Akbar Ali, PC Zakir Hussain in official dress, Arms and Ammunitions boarded on government vehicle No.SP-6313 drive n by DPC Mengal Khan, left P.S vide roznamcha entry No.18/09.05.09, at 1500 hours for patrolling and we were patrolling alongwith Gandher road we received spy information that a person is standing along link road Sangi at Sangi bridge having charas for selling and is awaiting for conveyance, so we after spy information proceeded towards that place and reached at 1600 hours and saw that on person having black polythene bag in his hand was standing there and seeing the vehicle and police party in official dress tried to escape to western side, we stopped the vehicle and alighted from it, cashed the culprit with help of staff and apprehended culprit along with black polythene bag and took him in our custody, on enquiry he disclosed his name as Ghulam Sarwar son of Dhani Bux, by caste Bangwar, r/o Village Laloo Khan Bangwar, Taluka Kashmore, we opened polythene bag and saw big and little pieces of charas in it, after weighing the same charas became 1100 grams, which was sealed.  I made HC Alamgir and PC Akbar Ali as mashirs, on personal search of the accused, we secured 10 notes of Rs.10/- each from his front and side pockets, such mashirnama of arrest and recovery was prepared at the spot in presence of mashirs.  Thereafter, we brought the arrested accused and property to P.S, where I lodged the F.I.R on behalf of the state against accused Ghulam Sarwar for offence U/S 9 (c) CNS Act, 1997, investigation be initiated.”

                   After usual investigation challan was submitted against the accused under Section 9(c), CNS Act, 1997 on 16.5.2009.

                   Earlier the bail application was moved in the trial Court, which was dismissed on 26.6.2009.

                   Mr. Ashique Illahi Sundrani, learned advocate for the applicant/accused has mainly contended that no private person was associated to act as mashir though it was a case of spy information.  He has further submitted that there is ambiguity with regard to quantity of charas sent to chemical examiner.  He further argued that the prosecution case is doubtful and requires further enquiry.  Learned Counsel relied upon the following case laws:-

i) Jamshaid Ali versus The State (1990 P.Cr.L.J. 1175),

ii) Daniel Boyd versus The State (1992 SCMR 196),

iii) State versus Qaim Ali Shah (1992 SCMR 2192),

iv) Ghani-ur-Rehman versus The State (1996 P.Cr.L.J. 347 Peshawar),

v) Minhaj versus The State (2004 P.Cr.L.J. 1992),

vi) Noor Muhammad versus The State (SBLR 2007 Sindh 1029),

vii) Syed Afzal Ali versus The State (SBLR 2009 Sindh 588),

viii) Muhammad Saleem Khan versus The State (SBLR 2009 Sindh 975),

Mr. Naimatullah Bhurgri, learned State Counsel opposes the request for grant of bail and argued that all the P.Ws have fully implicated the accused in the commission of the offence.  The chemical report is in positive.  The alleged offence punishable with death or imprisonment for life. 

                   I have heard the learned Counsel for the parties and carefully perused the material available on record.

                   On the tentative assessment of the material available on record and after going through the impugned order passed by the learned trial Court I am of the humble view that all the points raised by the learned Counsel for the applicant have also been agitated before the learned trial Court, who discussed all the relevant points.  The relevant portion of the bail order is reproduced hereunder for convenience:-

          “I have carefully perused the contents of F.I.R, 161 Cr.P.C statements of P.Ws, positive report of Chemical Examiner and other material collected by the police during the investigation.  In my considered view, applicant is not entitled for concession of bail at this stage, for the reasons that SIO Obhayo Khan head of the police party has fully implicated the accused and stated that he recovered 1100 grams charas from possession of accused in presence of mashirs.  Both the mashirs namely HC Alamgir and PC Akbar Ali have supported the version of the complainant in their 161 Cr.P.C statements, Chemical report is also positive.  The contention of learned defence counsel that no private persons were associated as mashirs of recovery requires deeper appreciation of the evidence and at this stage, evidence of police officials cannot be discarded.  Huge material has been collected against the applicant/accused during the investigation.  The offence is punishable for death or imprisonment for life.  Therefore, I find no merit in the above bail application, which is rejected.”

                   I am in full agreement with the observations made by the learned trial Court.  Regarding associating the police witnesses and non-associating the private witnesses, Section 25 of the CNS Act, 1997, has imposed bar, hence Section 103, Cr.P.C is not applicable in narcotic cases.  Reference can be made to the case of Muhammad Hanif versus The State (2003 SCMR 1237).  The Hon’ble Supreme Court of Pakistan in the case of Afzal Ahmed versus The State (2003 SCMR 573), has been pleased to dismiss the bail application in case where only 600 grams contraband was recovered.  The case law cited by the learned advocate for the applicant are distinguishable.  Under the circumstances, I find no merit in the above bail application.  The learned Counsel for the applicant fails to make out a case for grant of bail.  Consequently, this application is dismissed.

                                                                                                JUDGE