WAZIR AHMED and 2 others vs THE STATE and anothers

ORDER

' SHAHID HAMEED DAR, J.-- , Wazir Ahmed, Dilbar Hussain and Muhammad Ali (petitioners) seek bail before arrest I case F.I.R. No,275 of 2011 dated 10-8-20 1 under section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station, Ahmed pur Lama, District Rahim Yar Khan, on the complaint of Peeran Ditta S.I.

2. Precisely the prosecution case as stated by the complainant is that he received a spy information to the effect that Aslam Khan Pathan traded in drugs and he had links with Basheer, Pervaiz, Dilbar (petitioner), Nazir. (petitioner), Zahid and Muhammad A I (petitioner) who too dealt in the said n sty trade; the complainant further learnt that the aforesaid persons including As1 m Khan Pathan, Zahid and Dilbar (petitioner) would travel by a car to Sadiq Abad and that Zahid and Dilbar possessed 2 kgs. Heroin each which they had purchased from Aslam Khan Pathan; a barricade was set up by the police at the bridge of a canal where they intercepted a car, coming from the direction of Hashimi Colony, wherefrom, Zahid and Dilbar (petitioner) ali hted and took to their heels while being in possession of 2 Kgs. Heroin each; they w re chased but to no avail; accused Asia Khan Pathan, however, was overpowered y the police who disclosed that he had s Id the contraband substance (charas) to Bashir, Pervaiz, Wazir (petitioner), Z id and Ali (petitioner) and that Zahid an Dilbar had fled the scene being in possession of 2 Kgs. Heroin each accused Asl Khan Pathan got recovered contraband charas weighing 5 Kgs. From the said ca which was taken into possession by the I.O. Through a memo of recovery; 10 rams charas was segregated from the bulk so as to transmit it to the office of Che ical Examiner, for chemical analysis; besides sale amount of Rs,3,000 and a copy o his National Identity Card was recovered from the said accused.

3. Learned counsel appearing on behalf of the petitioners submit in unison that it is virtually a case of no evidence. Against accused Wazir and Muhammad Ali nor any role has been ascribed against them by the complainant; the accused-petitioners have been nominated in this case merely on the whims of the complainant; law does not recognize such sort of hypothetical allegations as a piece of evidence; the statement of. Muhammad Aslam Khan Pathan cannot be read against the petitioners nor does it carry any evidentiary value, because of the bar contained in the Qanun-e- Shahadat Order, 1984; the witnesses recorded under section 161, Cr.P.C. During the course of investigation do not support the baseless allegations, as these appear in the F.I.R. Lastly submits that the petitioners have been falsely involved in this cash being close relation to Muhammad Shahid whose widow Mst. Sharnim Akhtar got a criminal case lodged against the police officials of the above said police station for offences under. Sections 380/452, P.P.C. Which hints at the mala fide and malice of the police.

4. On the other hand, learned Deputy Prosecutor-General Punjab strongly opposes the instant petition with the contention that all the petitioners are a criminal lot who stand involved in many other cases of identical nature; there is no malice or ulterior motives on the part of the police to falsely implicate the petitioners in the instant case and that their person is required for further investigation/probe as well as for the recovery of the contraband substance, they had taken away with them.

5. After having heard learned counsel for the parties and perused the record, it is observed that the only allegation brought around against the petitioners by the prosecution revolves around a spy information allegedly tendered to the complainant by a spy informer. Much of the story, as entailed in the F.I.R. Hints at an unusually lengthy tip-off, which can hardly be considered as an admissible piece of evidence. The information brought by the spy informer was so precise that the weight and kind of contraband substance, allegedly possessed by the petitioners prior to the interception of the car of accused Muhammad Aslam Pathan, has been mentioned in the F.I.R., which reveals that .5 Kgs. Contraband charas was recovered from the Gar belonging to Muhammad Aslam Khan Pathan accused, at his instance. Interestingly the prosecution witnesses did not say even a single word in their statements under section 161, Cr.P.C. About the factum of receipt of a spy information, in aforesaid terms, by Peeran Dita S.I. /complainant, nor they have uttered a single word about the culpability of the accused-petitioner in any manner. Our attention has been drawn towards registration of case F.I.R. No,511 of 2009 under section 380/452, P.P.C. Registered at Police Station Ahmad Pur Lama, Rahim Yar Khan at the instance of Mst. Shamim Akhtar, widow of Muhammad.

Shahid, which contains allegations against some police officials of the same Police Station where the instant F.I.R. Has been lodged. According to the contention of the learned counsel, Muhammad Ali petitioner happens to be the real brother of the above named Muhammad Shahid, whereas, rest of the petitioners are close kith and kin. In the backdrop of previois heartburning and some sort of rivalry between them, the false implication of the petitioners in the instant case due to malice and ulterior motives of the police/complainant cannot be ruled out. The statements of the above said prosecution witnesses have almost sealed the fate of this case prematurely so far as the allegations against the petitioners are concerned. Learned Deputy Prosecutor General Punjab vehemently argued that the petitioners stand involved in some other cases of identical nature but he has failed to point out any viable connecting evidence against the petitioners, so far as the instant case against them is concerned. Sufficient reasons prima facie, exist to believe that the petitioners' case constitutes need for further inquiry into their guilt as contemplated under section 497(2), Cr.P.C. Therefore, the instant application is accepted and the ad interim pre-arrest bail granted to the petitioners vide order dated 19-12-2011 is confirmed subject to furnishing fresh bail bonds in the sum of Rs,1,00,000 each with two sureties each in the like amount to the satisfaction, of learned trial Court.

6. Before parting with this order, it is clarified that the petitioners shall keep on joining the investigation of this case as and when required by the Investigating Officer and if they hesitate in doing so, the prosecution shall be at liberty to move an application against them under section 497(5), Cr.P.C. With a prayer to recall the instant bail granting order.