MUHAMMAD alias MANDO MALLAH Versus THE STATE
This matter arises from a bail application filed by the applicant Muhammad alias Mando Mallah seeking post-arrest bail in a narcotics case registered under the Control of Narcotic Substances Act, 1997, relating to the alleged recovery of 500 grams of Charas. The core legal question is whether the applicant is entitled to post-arrest bail where he was not arrested at the spot, no recovery was made directly from his person, no private mashir was associated despite the incident occurring in a populated area during daytime, and the prosecution concedes to the grant of bail. The Sindh High Court held that the circumstances of the case, including the lack of direct recovery and the absence of private mashirs, make out a case for further inquiry under Section 497(2) of the Code of Criminal Procedure, 1898. The court ordered the release of the applicant on bail subject to furnishing a solvent surety. The key principle laid down is that where the prosecution story lacks immediate connection to the accused through direct recovery and raises arguable points for further inquiry, bail should be granted.
- Whether an accused is entitled to bail when not arrested at the spot and no recovery is made from his person?
- Does the absence of private mashirs in a populated daytime recovery make the prosecution case one of further inquiry?
- Whether post-arrest bail should be granted when the State concedes to the same?
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. It is the case of the prosecution that applicant Muhammad alias Mando alongwith another person was selling Charas in a public street near the house of Khair Muhammad within the jurisdiction of P.S. Johi, District Dadu On receiving the spy information police party on 14-10-2003 reached at the notified place where they saw the present applicant and another person alongwith a motorcycle. On seeing the police party the applicant and the co-accused made their escape good. However, while running from the place of incident on a motorcycle, a bag "Theli" fell down which was taken by the police in its possession. 15 pieces of Charas weighing 500 grams were recovered from the said Theli. Out of which 2 pieces were separately sealed for chemical analysis and the remaining material was also sealed. Such F.I.R. was lodged at P.S. Johi, District Dadu on the same day.
2. Bail application filed on behalf of the applicant was rejected by the learned Sessions/Special Judge (CNS) Dadu on 9-3-2004, whereafter the applicant approached to this Court.
3. Mr. Shafi Muhammad Memon learned counsel for the applicant's has mainly contended that the applicant was neither arrested from the spot nor anything was recovered from his person so as to connect him with the commission of the alleged offence. Learned counsel has further contended that despite having received the spy information, no private person was associated as a Mashir though the alleged incident is shown to have taken place during the day time in a town area. Learned counsel has further argued that story as narrated in the F.I.R. does not inspire confidence and calls for further inquiry.
4. On the other hand, Mr. Habib Ahmed learned State Counsel keeping in view all the facts and circumstances of the case has rightly conceded to the grant of bail.
5. We feel inclined to order for release of the applicant on bail provided he furnishes one solvent surety in the sum of Rs.1,00,000 and P.R. bond in the like amount to the satisfaction of the learned trial Court.
6. H. B. T./M-117/K Bail granted.