O R D E R     S H E E T

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Crl. B.A No.S- 165 of 2012

Date	Order with signature of the Judge

            1. For orders on office objection flag ‘A’

2. For Hearing.                                              

24.07.2012

Mr. Athar Abbas Solangi,  advocate for applicant.

Mr. Imtiaz Ahmed Shahani,  State counsel.

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Naimatullah Phulpoto, J:-      This bail application has been filed against the order of learned Special Judge, (CNS),Larkana dated 17.3.2012 in Special Narcotics Case No.19 of 2012 registered against the applicant/accused vide crime No.21/2012 at Police Station Waleed, Larkana under section 9 (C) of Control of Narcotic Substances Act, 1997.

2.         Brief facts of the prosecution case as disclosed in the FIR are that on 26.02.2012, SIP Khalid Hussain Abro, along with his subordinate staff left Police Station for patrolling duty at 4.p.m.  Police officials noted one Rickshaw/Qingqi near passport office coming from Larkana Town. As soon as police party reached near Rickshaw, applicant/accused tried to turn it back but he was encircled by the police officials and it was stopped. The driver of the Rickshaw, on inquiry, disclosed his name as Zahid Hussain s/o Ali Sher by caste Solangi. SIP Khalid Hussain in presence of the Mashirs conducted personal search of the accused. On search one pocket containing two pieces of charas was secured from his waist, besides cash of Rs.2,00/- from the pocket of his shirt. On the search of the Rickshaw two packets each containing two pieces of charas were also recovered from its tool box. Whole material/charas was weighed and found to be 3-kg, out of which 1-kg was taken as sample, remaining 2-kg were separately sealed. Such mashirnama was prepared in presence of mashirs ASI Ahmed Ali and PC Roshan Ali. Accused was brought at police station where FIR against the accused on behalf of the State under the above referred sections was registered. One kilogram charas was sent to chemical examiner for chemical analysis. After usual investigation challan was submitted against accused under section 9 (c), Control of Narcotic Substances Act, 1997.

3.         Bail application was moved on behalf of the applicant and it was rejected as stated above.

4.         Mr. Athar Abbas Solangi, learned counsel for the applicant/accused contended that only 1-kg was sent to the Chemical Examiner as such it is border line case and positive chemical report would not improve the prosecution case. He has further submitted that 2-kg charas recovered from the Rickshaw was not from the exclusive possession of the accused. All the PWs are police officials and interested. There is no question of tempering with the evidence. Lastly he has submitted that charas has been foisted upon the accused, prosecution case requires further enquiry. In support of his contention, he has placed reliance on the case of Iqrar v. State (2012 YLR 877), Ayub Khan v. State (2012 YLR 1015), Wajid Ali v. State (2012 YLR 1051), Naimatullah Khan v. State (2012 YLR 251), Nisar Ali v. The State (2012 YLR 314), Muhammad Sarfraz v. The State (2012 YLR 553), Nadeem v. State (2007 MLD 1092), Imtiaz Ali v. The State (2006 MLD 1961), Muhammad Chattal v. The State (2001 YLR 654).

5.         Mr. Imtiaz Ahmed Shahani, learned State counsel strongly opposed application and argued that 1-kg charas has been recovered from the possession of accused and 2-kg have been recovered from the Rickshaw of the accused and applicant was in exclusive possession of the Rickshaw and was transporting the same. Alleged offence is serious one and effects the society at large. He has further argued that at bail stage deeper appreciation of evidence is not possible. In support of his contention he has relied on the case of The State v. Abdali Shah (2009 SCMR 291).

6.         I have carefully heard the learned counsel for the parties and perused the relevant record.

7.         From the perusal of contents of FIR, 161, Cr.P.C. statements of the PWs and positive chemical report, prima facie, involvement of the applicant/accused is established in this case. Learned counsel for the applicant could not point out any malafide or enmity of the police officials with the accused to foist charas upon him. Contention of the learned counsel that only 1-kg charas was recovered from possession of the accused and 2-kg were recovered from the Rickshaw and this is border line case, such contention cannot be deeply appreciated at this stage without recording evidence and providing opportunity to accused. At bail stage only tentative assessment is possible. Evidence of the police officials at bail stage cannot be discarded. With due respects, above cited authorities referred by learned counsel for the applicant are not applicable to the circumstances of the case. Learned State counsel has rightly relied upon the case of The State v. Abdali Shah (Supra) in which Honourable Supreme Court has been pleased to observe as under:-

“It would be seen that a huge quantity of 52 kgs. Of charas was allegedly recovered from the taxi beside which the respondent was standing while closing its dickey. It is not possible that the police would foist such a huge quantity of Charas upon him. It appears that the learned High Court has relied heavily upon the technical aspect of the seizure and arrest which in our opinion are misconceived as in the first place no raid was carried out by the police personnel but the respondent apprehended during normal patrol duty. As such the provisions of section 21 are not applicable. Even otherwise it cannot be expected that upon apprehension of the accused the police party would go in search of the officer, who is entitled to arrest the accused being an A.S.I. At the most, this was an irregularity which was curable under section 537,Cr.P.C as held by this Court in the case of Muhammad Hanif (supra).

Similarly, the second ground which weighed with the learned High Court that the investigation was not carried out by an official authorized to do so, also is devoid of substance, since no prejudice has been caused to the respondent by such investigation. The case of Muhammad Farooq Khan v. The State 2007 PCr.LJ 1103 relied upon in the impugned order is distinguishable from the facts of the present case as therein malafides were alleged against the investigative agency in which event a learned Division Bench of the Sindh High Court came to the conclusion that the investigation should have been entrusted to another agency. In this regard, the reference can  be made to the case of State through Advocate-General v. Bashir (supra), wherein it was held that investigation by an officer not authorized to do so was merely an irregularity which is curable under section 537,Cr.P.C.

For all the foregoing reasons, we would convert this petition into an appeal and allow the same. The impugned order is set aside and the bail given to the respondent/accused is cancelled.”

8.         For my above stated reasons and while respectfully relying upon above cited authority of Honourable Supreme Court, I have no hesitation to hold that prima facie, there are reasonable grounds to believe that 1-kg of charas was recovered from the possession of the accused and 2-kg of charas from his Rickshaw and report of the chemical examiner is positive and the contentions of the learned counsel for the applicant are devoid of the legal force. Alleged offence is punishable for death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine. Therefore bail application is without merit and it is dismissed with directions to the trial Court to decide the case within two months under intimation to this court.

                                                                                    Judge

Abid H. Qazi