IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 155 of 2024.
Applicant: Ghulam Abbas Jatoi, through Mr. Kazi Manzoor Ahmed, Advocate.
Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of hearing: 29.03.2024.
Date of order: 29.03.2024.
Date of reasons: 18.04.2024.
ORDER
Muhammad Saleem Jessar, J- Applicant Ghulam Abbas son of Jan Muhammad Jatoi, who has been booked in F.I.R No. 06 of 2024, registered at P.S Hyderi, Larkana, for offence punishable under Section 9 (3) (c) of the Control of Narcotic Substances Act, 1997, for possessing 2050 grams of Charas; seeks his admission to post arrest bail, after his failure to get same relief from learned trial Court.
2. Learned counsel for the applicant has mainly contended that applicant/ accused is innocent and has falsely been implicated in this case by the police. He has further contended that, no any recovery of charas has been affected from applicant, but in-fact a day before registration of instant F.I.R the Dokri police raided house of applicant; caused injuries to womenfolk of applicant and ultimately the applicant along with other accused were arrested by police’ they wrongfully detained in the police station, as such mother of applicant, namely, Siyani Khatoon and other lady namely, Mst. Nooran Khatoon filed separate applications under Section 22-A & B Cr.P.C [vide Crl. Misc. Appln. No. 73 and 74 of 2024] before learned Sessions Judge, Larkana, for such highhandedness on the part of police on the same day i.e. 09.01.2024 and on coming to know this fact the Dokri police in order to cover up their illegal actions handed over custody of the applicant and other accused to Larkana police, who booked them in F.I.R by foisting huge quantity of Charas upon them on following day i.e. 10.01.2024. Per learned counsel two police officials are shown as mashirs, though the alleged incident is said to have taken place at very busy place; therefore, their evidence cannot be safely relied upon. Learned counsel further contended that, the challan against the applicant has already been submitted, therefore, he is no more required by police for investigation or interrogation and his further detention in jail would not serve any purpose, therefore, he prayed for grant of bail to the applicant. In support of his contentions, learned counsel relied upon unreported Order [dated 22.11.2023 in Criminal Petition No.1192 of 2023] passed by Hon’ble Supreme Court in case of Zahid Sarfraz Gill v. The State.
3. Conversely learned D.P.G appearing for the State has opposed grant of bail to the applicant on the ground that the applicant was caught by the police party alongwith a huge quantity of contraband material and he has been nominated in the promptly lodged F.I.R., and that the offence falls within prohibitory clause of Section 497 Cr.P.C.
4. As per case of prosecution, allegedly the police recovered charas from possession of the applicant when he was on the road, but no any independent person has been cited as witness or mashir in the case. No doubt, the evidence of the police officials is as good, as other witnesses, but when the whole case rests upon sole evidence of police officials, their evidence requires deep scrutiny at trial.
5. The Hon’ble Supreme Court in case of Zahid Sarfraz Gill v. The State [vide Order dated 22.11.2023 passed in Criminal Petition No.1192 of 2023], while dealing with similar question of non-association of independent person/ witnesses, observed that “We are aware that section 25 of the Act excludes the applicability of section 103 of the Code of Criminal Procedure, 1898 which requires two or more respectable inhabitants of the locality to be associated when search is made. However, we fail to understand why the police and members of the Anti-narcotic Force (ANF) do not record or photograph when search / seizure and / or arrest is made. Article 164 of the Qanun-e-Shahadat, 1984 specifically permits the use of any evidence that may have become available because of modern devices or techniques, and its Article 165 overrides all other laws. In narcotic cases the prosecution witnesses usually are ANF personnel or policemen who surely would have a cell phone with an in-built camera. In respect of those arrested with narcotic substances generally there are only a few witnesses, and most, if not all, are government servants. However, trials are unnecessarily delayed, and resultantly the accused seek bail first in the trial court which if not granted to them is then filed in the High Court and there too if it is declined, petitions seeking bail are then filed in this Court. If the police and ANF were to use their mobile phone cameras to record and / or take photographs of the search, seizure and arrest. It would be useful evidence to establish the presence of the accused at the crime scene, the prosecution by the accused of the narcotic substances, the search and its seizure it may also prevent false allegations being leveled agaisnt ANF/ police that the narcotic substance was foisted upon them for some ulterior motives.”
6. Besides, the stance/ defence plea taken by the applicant’s counsel that applicant was arrested by Dokri police during raid at his home one day prior to registration of instant F.I.R, has got some force in view of the documentary proof i.e. memo of an application dated 09.01.2024 filed by mother of applicant, namely, Siyani Khatoon under Section 22-A & 22-B Cr.P.C.
7. Furthermore, according to Amendment of 2022 in Control of Narcotic Substances Act, 1997, the punishment provided for possessing 1000-grams to 4999-grams of Charas is extended to fourteen years and not less than nine years along with fine. And, as per settled principles of law, the Court may consider the minimum/ lesser sentence at bail stage.
8. So far contention of learned D.P.G that the offence comes within the ambit of prohibitory clause of Section 497 Cr.P.C; in this regard it is suffice to say that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation for life, unless reasonable grounds appear to exist to disclose their involvement. The ultimate conviction and imprisonment of a guilty person can repair the wrong caused by a mistaken relief of bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified confinement in case of his acquittal in the long run.
9. More-so, since all the prosecution witnesses in this case are police officials, therefore, there is no apprehension of tampering with the evidence on the part of applicant, if he is released on bail. The applicant also appears to be first offender, as there is no such material on record that he is already challaned and or convicted in any other case of like nature. Besides, he has been in the jail for a period of more than three months; the investigation of this case has been finalized, and physical custody of the applicant is no more required to police for the purpose of investigation. In these circumstances continued custody of the applicant in jail is not likely to serve any beneficial purpose at this juncture.
10. On tentative assessment of all these facts and circumstances, I am of the considered view that, the case of applicant falls within purview of “further enquiry” as envisaged by subsection (2) of Section 497 Cr.P.C., entitling him to grant of discretionary relief of grant of bail. Accordingly, the instant bail application was allowed vide short order dated 29.03.2024, whereby applicant was admitted to bail upon furnishing a solvent surety in the sum of Rs.100,000/- (One hundred thousand rupees) and P.R bond in the like amount to satisfaction of trial Court, and these are reasons for the short order.
11. Needless to mention here that, observations made in this order are tentative and shall not prejudice the case of either party in the trial. It is further made clear that in case the applicant misuses the concession of bail, then the trial Court would be competent to cancel the bail of the applicant without making any Reference to this Court.
Judge
Ansari