Zahid Shaikh vs NOT

1. AFTAB AHMED GORAR, J- Applicant Zahid Shaikh seeks bail in Crime No.77/2012, registered at Police Station Naudero for offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997. He had moved his bail application before the learned Sessions Judge/Special Judge for CNS, Larkana, same was dismissed vide order dated 15.8.2012, hence the present application.

2. Brief facts of the prosecution case are that on 15.7.2012, complainant ASI Nazar Muhammad Abro, lodged the FIR at Police Station Naudero with the facts that he along with his sub-ordinate staff left the Police Station by foot for the purpose of patrolling and after patrolling from different places when they reached Qoban No.14 near village Phulpota, they received spy information that accused Zahid who is dealer of charas is coming towards village Allah Warayo Machhi by crossing Model School Chowk on Ratodero by-pass. On such information they proceeded towards the pointed place and when they reached there, they saw the said person, who on seeing the police party tried to slip away but the police party with active connivance apprehended the said person. Due to non availability of private person HC Sanwal Khan and PC Mukhtiar Ali were acted as mashirs and in their presence conducted personal search of the accused during which two plastic shopping bags tied with his waist were recovered and on its opening found containing pieces of charas, the same were weighed and found to be 1600 grams. From his bodily search cash of Rs.50/- were also secured from his pocket. Thereafter such mashirnama was prepared in presence of above said mashirs and the accused was taken to the Police Station where the above case was registered against the present applicant on behalf of the State.

3. Learned counsel for the applicant has argued that the applicant is innocent and he has been falsely implicated in this case by the police with malafide intention. He has further contended that the recovery which was alleged to have been shown from the applicant in village surrounded by number of the houses, yet no any independent person has been cited as mashir, hence there is clear violation of mandatory provision of section 103, Cr.P.C. He has further contended that the complainant being ASI is not competent to lodge the FIR under the CNS Act. Learned counsel for the applicant has also placed on record the photo-copy of the application filed under section 491, Cr.P.C before the learned Sessions Judge, Larkana and order on it, in which the father of the applicant had stated that on 03.2.2012, his son Sajid and grand son Javed, some buffaloes and gold ornaments were forcibly taken away by the SHO PS Naudero and some of his sub-ordinates. The learned Sessions Judge had ordered for the inspection of Police Station through raid Commissioner. The raid Commissioner conducted the raid but none of the detenues was recovered but five cattle were seized under section 550, Cr.P.C. Learned counsel for the applicant has further contended that the police of Naudero P.S by taking revenge of application made by father of the applicant has booked the applicant in this false case with malafide intention. Lastly leaned counsel for the applicant has relied upon the cases of Nadeem versus The State 2007 M LD 1092, Muhammad Farooque Khan versus The State 2007 P.Cr.L.J 89, Abdul Nabi versus The state 2008 P.Cr4.L.J 1333 and Hakeem Jamali versus The State 2009 P.Cr.L.J 695.

4. Learned State Counsel has opposed the grant of bail on the ground that huge quantity of charas viz 1600 grams has been recovered from the possession of the applicant.

5. I have heard learned counsel for the parties and perused the material available on record with the assistance of both the learned counsel.

6. The FIR shows that the alleged recovery was made from the waist of the applicant and such huge quantity of charas viz 1600 grams from the waist of any body is impossible. Further more, it is crystal clear from the application made by the applicant's father under section 491, Cr.P.C, wherein he had alleged that the police of Naudero had taken his son and grand son for which raid was also conducted on the direction of the learned Sessions Judge. Looking to this fact, it can easily be presumed that police of same Police Station by taking revenge has booked the applicant in this false case. Even otherwise for granting benefit of doubt to accused, it is not necessary that there should be many circumstances creating doubts, but if a simple circumstance would create reasonable doubt in a prudent mind about the guilt of accused, then he would be entitled to such benefit not as a matter of grace and concession, but as a matter of right. In this case also doubt of implicating the applicant is there because the applicant's father had previously filed application before the learned Sessions Judge by showing that his son and grand son had taken away by the police of same Police Station. The authorities relied upon by the learned counsel are fully applicable with the case in hand.

7. Under the above circumstances, the applicant has made out a case for grant of bail as contemplated under section 497(2), Cr.P.C. Accordingly, he is admitted to bail subject to his furnishing solvent surety in the sum of Rs.100,000/- and P.R bond in the like amount to the satisfaction of the leaned trial Court.

8. Needless to mention here that the learned trial Court shall not be influenced by observation made in this order while deciding the case of the applicant as the observation made hereinabove are tentative in nature.