ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                                 Cr.Bail.Appl.No.S-  1034   of  2014

DATE        ORDER WITH SIGNATURE OF JUDGE

16.12.2014.

Syed Shahzad Ahmed Shah, Advocate for applicant.

Mr. Shahid Shaikh, A.P.G. for the State.

                                    =

          Through instant application, applicant seeks post arrest bail in Crime No.16/2014 registered at Police Station Uderolal Village u/s 9 (c) of C.N.S. Act, 1997.

2.         Precisely relevant facts are that on 17.08.2014 complainant alongwith subordinate staff after patrolling, held checking of the vehicles at Sheesh Mahal Chowk, where one person coming on motorcycle from Tando Adam side,  tried to escape, however, complainant party apprehended him and during search recovery of 2000 grams charas was affected from him, out of which 20 grams were sealed separately for chemical analysis. Property and accused were brought at Police Station. FIR was registered against the applicant. After usual investigation he was sent up for trial.

3.         Learned counsel for the applicant inter alia contends that recovery affected from the applicant is 2000 grams charas; chemical report is delayed; no independent witness has been cited as witness; applicant has no previous criminal record; in view of Ghulam Murtaza case(PLD 2009 Lahore 362), maximum punishment can be up to 04 years and 06 months; the same does not fall within the prohibitory clause; since last 04 months applicant is in jail and he is not further required for any investigation. Learned counsel has relied upon the case of Bahawal alias Naang v. The State reported in 2011 P.Cr.L.J. 1200.

4.         Learned State Counsel opposed this application on the ground that this is a crime against society, however he concedes that there is no criminal history of this applicant.

5.         After careful consideration of contentions of learned counsel for the parties and meticulous examination of available record, admittedly alleged contraband narcotics is charas weighing about 2000 grams. No private witnesses have been associated; there is a delay in sending the representative part for chemical examination which would also require explanation hence making a room for further probe. Moreover, prosecution has not claimed that the applicant is previously involved in same nature of the cases. The applicant / accused has been in continuous custody since last 04 months and is no more required for any purpose of investigation nor the prosecution has claimed any exceptional circumstance (s) which could justify keeping the applicant / accused behind the bars for an indefinite period. Reference can be made to the case of Jamaluddin alias Zubair Khan (2012 SCMR 573), wherein recovery of 04 Kgs of charas was effected and apex Court held that:-

“Without entering into the merits of the case, as the quantum of sentence has to be commensurate with the quantum of substance recovered, we doubt the petitioner can be awarded maximum sentence provided by the Statute. Needless to say that the Court while hearing, a petition for bail is not to keep in view the maximum sentence provided by the Statute but the one which is likely to be entailed in the facts and circumstances of the case. The fact that petitioner has been in jail for three months yet commencement of his trial let alone its conclusion is not in sight, would also tilt the scales of justice in favour of bail rather than jail.”

06.       Keeping in view the above given circumstances, prima facie, applicant has succeeded to bring his case within the purview of subsection 2 of section 497 Cr.P.C, for this reason, he is admitted to post arrest bail subject to furnishing solvent surety in the sum of Rs.100,000/-(Rupees one lac) and PR bond in the like amount to the satisfaction of trial Court.

                                                                                                                  JUDGE

A.K