KHETO Versus THE STATE

ORDER

1. The brief facts leading to this application are that on 4-11-1995 Inspector, Ghulam Muhammad Panhwar, S.H.O., Police Station Site, Hyderabad lodged his report being Crime No.33 of 1995 under section 9, Narcotic Act, stating therein that on 4-11-1995 vide Roznamcha Entry No.22 when he was patrolling and reached near Ganjo Takar Check-Post alongwith A.S.-I. Tariq Latif, H.C. Allah Warayo, P.C. Blund Shah, P.C. Muhammad Jumman and started checking the vehicles on the road. It is the case of the prosecution that during the checking at about 4-45 p.m. a bus, which was going from Hyderabad to Tando Muhammad Khan was stopped and during checking the present applicant/accused was apprehended and on his personal search 200 grams of opium and.Rs.50 alongwith the Identity Card was recovered. The opium was weighed to be 200 grams and was sealed. Such Mashirnama was prepared and A.S.-I. Tariq Latif and H.C. Allah Warayo acted as Mashirs and the present applicant/accused who disclosed his name as Ketho was arrested and brought to police station and F.I.R. was lodged. The applicant/accused is challaned in the Court' of Special Judge Control of Narcotic Substances, Hyderabad.

2. The main contentions of the learned counsel for the applicant/accused are that the applicant/accused has nothing to do and this opium and the same has been foisted. His second contention is that he is behind the bars from 4-11-1995 and even the charge has not been framed. The third contention of the learned counsel is that admittedly it is a thickly populated area and a main road yet the police has deliberately and intentionally violated the provisions of section 103, Cr.P.C. and has even not tried to associate a single private person to act as Mashir. The last contention of the learned counsel is that the conviction is only seven years as such it does not fall within the prohibitory clause.

3. Mr. Abdul Rasheed Qureshi, S.RP. Narcotic states that since the cast is conducted by the police and challaned by the police, as such he is not concerned with it.

4. Mr. Abdul Latif Ansari, Assistant Advocate-General has opposed the bail application as according to him a huge quantity of opium has been recovered and no enmity whatsoever has been shown as to why the police should implicate the applicant/accused.

5. We have heard the arguments and with the assistance of the learned advocates for the applicant and State Counsel have perused the record. We are of the considered view that the place of incident is thickly populated and even the bus was carrying the other passengers apart from the present applicant /accused but in spite of that the' Inspector has violated the provisions of section 103, IA Cr.P.C. and has not tried even to associate any private person to act as Mashir.

6. Charge has not been framed. Conviction is only up to seven years as such it does not fall within the prohibitory clause of section 497(1), Cr.P.C. We accordingly grant bail to the applicant/accused in the sum of Rs.1,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.

7. N.H.Q./K-18/K Bail granted