ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Bail Appln. No.S-413 of 2012.
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
11.01.2013.
1. For orders on office objection.
2. For Hearing.
Mr. Habibullah G. Ghouri, advocate for applicant.
Mr. Qazi Muhammad Bux, State Counsel.
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MUHAMMAD SHAFI SIDDIQUI, J.- By short order this bail application was granted and these are the reasons for the same.
2/- Applicant Ghulam Qadir Umrani has prayed for his release on bail in crime No.44/2012, registered at Police Station Civil Line, Larkana, under Section 9(c) of the Control of Narcotic Substances Act, 1997.
3/- Brief facts of the case of prosecution are that on 27.3.2012, SIP Hussain Ali Kharal, S.H.O. Police Station Civil Line, Larkana, lodged the above F.I.R, alleging therein that he alongwith his subordinate staff left the police station vide entry No.28, at 5.00 p.m., in the investigation of crime No.39/2012, which was also registered at Police Station Civil Line, Larkana, under Sections 302, 394, 34, P.P.C, and after patrolling different places they received spy information at Suikarno Tower that suspect accused Ghulam Qadir Umrani wanted in crime No.39/2012 of PS Civil Line, Larkana was available at the gate of stadium, hence the police party proceeded there and saw a person, who on seeing the police tried to slip away but he was apprehended by ASI Zameer Hussain and HC Rashid Ali, who identified the said person as Ghulam Qadir Umrani and from his personal search one pistol with erased number alongwith one magazine containing 5 live bullets and two slabs of charas were recovered, which were tied with his waist. The charas was weighed and found to be 1900 grams, such mashirnama of arrest of accused and recovery of above articles was prepared on the spot and the accused alongwith recovered articles was taken to police station, where case was registered on behalf of the State.
4/- It is contended by the learned Counsel for the applicant that they have allegedly received spy information at Suikarno Tower, Larkana, which is thickly populated area, but no independent person was taken to act as mashir or to witness the recovery. The place of incident shown is a heart of city, where the arrest was shown. Learned Counsel further submits that the applicant is a chowkidar at Nazar Mohalla, Larkana, where he is performing duties for the last 10/12 years and he was apprehended by the SHO Hussain Ali Kharal from his house and several other persons were also taken in custody, who were released subsequently. All those released persons have filed their affidavits to support the version of the applicant. Some of them are 1) Abdullah son of Muhammad Hassan Khakhrani, 2) Ghulam Sarwar son of Bachal Mirbahar, 3) Moula Bux son of Raza Muhammad Mugheri, 4) Gul Sher son of Abdul Ghani Kalhoro and 5) Ghulam Hussain son of Bakhshal Khuhawar.
5/- Learned Counsel further submits that in the main case registered as crime No.39/2012 at Police Station Civil Line, Larkana, under Sections 302, 394, 34, PPC, the applicant was granted bail vide order dated 30.7.2012. It is further submitted by the learned Counsel for the applicant that the prosecution tried to rope the applicant in the aforesaid crime No.39/2012 since no name of any person was mentioned in the said crime and this is foisted upon the applicant that he was involved in such offence and that the weapon, which was allegedly recovered, was used in the said offence.
6/- Learned Counsel has also placed on record a copy of the order passed in crime No.39/2012 dated 30.7.2012, wherein the applicant was granted bail subject to furnishing surety in the sum of Rs.300,000/-.
7/- Learned Counsel has relied upon the case of Hidayatullah v. The State reported in 2012 P.Cr.L.J 1927 and the Division Bench of this Court held that the benefit of doubt was to be given to the accused as police personnel were the only witness.
8/- Learned State Counsel has opposed the bail application and submitted that the applicant was apprehended on spot and the weapon was recovered alongwith live rounds. He submitted that the offence was heinous as 1900 grams charas was recovered, which falls under Section 9(c) of the Control of Narcotic Substances Act and the other offence also falls under Section 13(d) of the Pakistan Arms Ordinance, 1965.
9/- I have heard the learned Counsel and perused the record and police papers.
10/- It appears that the present application is only confined to the crime under Section 9(c) of C.N.S. Act. I have very minutely and carefully perused the record and the alleged recovery of 1900 grams Charas and it is noted that no private mashirs were associated. It is also inconceivable to learn that on spy information the applicant was found roaming around the place of incident alongwith weapon and charas. It is clearly a case of further enquiry. It has been held by the Hon'ble Supreme Court in the case of Tariq Pervez v. The State, 1995 SCMR 1345, as under :-
"For giving him benefit of doubt, it is not necessary there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
11/- I, therefore, in view of the above facts and circumstances, granted the bail application subject to furnishing surety in the sum of Rs.300,000/- (Rupees Three Lac) and P.R bond in the like amount to the satisfaction of the trial Court. However, these observations, which are made for the consideration of grant of bail, are only tentative and shall not cause prejudice to the trial or the case of the prosecution which shall be independently concluded on the basis of the evidence which may come on record.
JUDGE