IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 37 of 2024.
Applicant: Guhram Khan Rattar, through Mr. Sharjeel Sattar Bhatti, Advocate.
Respondent: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing: 05.04.2024.
Date of order: 05.04.2024.
Date of reasons: 17.04.2024.
ORDER
Muhammad Saleem Jessar, J- Through captioned bail application, applicant Guhram Khan son of Ghulam Abbas alias Abbas Ali Rattar has sought for post arrest bail in the case emanating from F.I.R No. 46 of 2023, registered at P.S Garhi Khairo (District Jacobabad) for offence punishable under Section 9 (1) (3) (c) of the Control of Narcotic Substances (Amendment) Act, 2022. Earlier, similar plea of the applicant was declined by learned Sessions Judge/ Special Judge (CNS), Jacobabad, through Order dated 18.11.2023.
2. Brief facts of the prosecution case have already been mentioned in the impugned order in its para No.2, which are reproduced hereunder:
“The allegations agaisnt the applicant/ accused Guhram Khan are that on the 22nd September, 2023, at 19.20 hours, he was apprehended by a police team from P.S Garhi Khairo led by the complainant H.C Hussain Bux along the Garhi Khairo bypass. The team recovered 1800 grams of charas from his exclusive possession.”
3. 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 the alleged contraband has been foisted upon the applicant/ accused by the police with malafide intention and ulterior motives. 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. He further added that, out of entire 1800 grams, only 900 gram of charas was sent for analysis, as such, the applicant would only be held responsible for recovery of 900 grams of opium. 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.
4. 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.
5. 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.
6. 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.”
7. Besides, in instant case, admittedly as per contents of F.I.R, the charas weighing 1800 grams was allegedly recovered from possession of applicant, out of which only 900 grams were sent for chemical analysis, therefore, as per settled law the applicant can be saddled for the recovery of opium to the extent of 900 grams of charas. 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. Moreover, 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 about seven (7) 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 05.04.2024, 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