IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Bail Appln. No. S-  757 of 2023.

Applicant:                 Mst. Zahida alias Mouran, through Mr. Habibullah G. Ghouri, Advocate.

Respondent:              The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

Date of hearing:        25.01.2024.

Date of Order:           25.01.2024.

ORDER

Muhammad Saleem Jessar, J- Through captioned bail application, applicant Zahida alias Mouran has sought for post arrest bail in the case emanating from F.I.R No. 120 of 2023, registered at P.S Lakhi Ghulam Shah of District Shikarpur for offence punishable under Section 9 (b) & (c) of Control of Narcotic Substances Act, 1997; after her plea for post arrest bail was declined by learned 1^st Additional Sessions Judge/ Model Criminal Trial Court Shikarpur vide Order dated 15.12.2023.

            2.         Brief facts of the prosecution case have already been mentioned in the impugned order in para 2, which are reproduced hereunder:

            “It is alleged by the complainant in the F.I.R that on 27.10.2023, at about 0800 hours, the applicant/ accused was arrested by the patrolling police party of P.S Lakhi Ghulam Shah headed by ASI Mir Muhammad Soomro, and 1500 grams of charas in shape of two slabs (pattis) and three small pieces, lying in a black colour shopper and 300 grams of ice-methamphetamine, lying in a white colour shopper along with hard cash o Rs.500/- were recovered  from her in front of Mashirs, for which, she was booked in the instant case.”

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. He further submitted that 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 there is contradiction in report of chemical examiner regarding the weight of narcotic substance, as according to report of chemical examiner the net weight of charas received by him was 1470 grams, whereas according to contents of F.I.R 1500 grams of charas is alleged to have been recovered and sealed on the spot, as such no sanctity can be attached with report of chemical examiner.   He further contended that, in-fact on 25.10.2023 the applicant alongwith another lady, namely, Mst. Sakina and Mujahid Ali were on their way towards Shikarpur from their village, when they reached “Rustam Curve” Shikarpur, the police of Lakhi Ghulam Shah arrested them and ultimately challaned applicant and other lady Mst. Sakina by foisting charas upon them and did not release Mujahid therefore, aunt of Mujahid, namely, Mst. Ameer Khatoon filed Constt. Petition No. D- 691 of 2023 before this Court. Learned counsel has placed on record photocopy of memo of such petition. Per learned counsel, the applicant being woman and aged lady of about 65 years deserves concession of bail. Learned counsel lastly submitted that, the challan against the applicant has already been submitted; she is no more required for investigation and her further detention in jail would not serve any purpose, therefore, he prayed for grant of bail to the applicant. Learned counsel in support of his contentions relied upon an un-reported Order dated 22.11.2023 of Hon’ble Supreme Court passed in Criminal Petition No.1192 of 2023 (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 she 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 the contraband charas ice-methamphetamine from possession of the applicant when she was standing on the busy road, but no any independent person has been cited as witness or mashir in the case despite prior information of the incident. 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 surety would have a cell phone with an in0built 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, contraband charas weighing 1500 grams and 300 grams of ice-methamphetamine were allegedly recovered from possession of applicant, therefore, as per settled law the applicant can be saddled for the recovery of charas to the extent of 1500 grams and 300 grams of ice-methamphetamine. And, according to amendment 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. Therefore, per settled principle 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, 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 she is released on bail. Further, the applicant is lady, and aged about 58/59 years [as is evident from police papers “Hulia-Form” of applicant]. The old age itself is an ailment. The applicant also appears to be first offender, as there is no such material on record that she is already challaned and or convicted in any other case of like nature Besides, she has been in the jail for 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.       In view of the foregoing reasons and discussion, I am of the considered view that the applicant has successfully made her case for grant of post arrest bail. Accordingly, the instant bail application was allowed vide short order dated 25.01.2024,  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