SHER DIN Versus THE STATE
This criminal bail application was filed on behalf of the applicant, Sher Din, seeking post-arrest bail in F.I.R. No.75 of 2004 registered at Police Station Dadu for offences under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (referred to as M.H.O.). The core legal question was whether the applicant was entitled to post-arrest bail given the lack of independent corroboration and the reliance solely on police officials as mashirs of arrest and recovery in a public place. The Sindh High Court held that the applicant successfully made out a case for bail, noting that despite the incident occurring at a public petrol pump during daytime, no private persons were associated as mashirs, and the police mashirs were subordinates of the complainant, rendering the case further inquiry-worthy. The court laid down the principle that the non-association of available private mashirs and reliance entirely on police subordinates in recovery matters can create sufficient doubt to warrant the grant of post-arrest bail.
- Whether post-arrest bail should be granted when recovery mashirs are police subordinates and no private witnesses are associated?
- Does the absence of independent public witnesses for an alleged recovery at a public place make the prosecution case fit for further inquiry under bail considerations?
- Section 55, Code of Criminal Procedure 1898
ORDER
1. Granted subject to all just exceptions.
2. By this order I propose to dispose of Criminal Bail No.758 of 2004 filed on behalf of the applicant, Sher Din, in a case bearing F.I.R. No.75 of 2004 registered with Police Station Dadu District Dadu for offences under Articles 3/4, M.H.O.
1. The bail plea of the applicant was declined by the learned IInd Civil Judge & Judicial Magistrate Dadu and the learned Sessions Judge Dadu vide their orders dated 6-7-2004, respectively.
2. The prosecution story as unfolded in the F.I.R. is that on 27-4-2004 complainant S.-I.P Nazeer Ahmed set the law into motion by lodging F.I.R. at Police Station Dadu stating therein that on the eventful day while he along with police personnel namely H.C. Mushtaq Ahmed Khokhar, Shahzado Abbasi, Manzoor Ali Magsi, Rehmatullah Leghari was patrolling in the area in Police Mobile with Driver Khair Muhammad under Roznamcha Entry No.9, dated 27-4-2004 and reached New Bus Stand Dadu where they received spy information that one person was standing at road in front of Shell Petrol Pump for vehicles having Bhung. Upon receipt of such information, police party proceeded and reached on the pointed place at 10-30 a.m. and saw that one person having plastic bag in his hand tried to run having seen the said police party but was apprehended tactfully. Upon interrogation, he disclosed his name as Sheruddin (applicant herein). Accordingly he was arrested under section 55, Cr.P.C. and personal search was conducted which resulted recovery of Bhung weighing one kilogram out of which 10 grams were taken out for Chemical Examiner whereas rest was sealed. It is further disclosed in the F.I.R. that non-availability of private Mashirs, Mashirnamas of arrest and recovery in presence of H.C. Mushtaq Ahmed and Constable Shahzado. Accordingly, the applicant was brought at Police Station where F.I.R., as above, was registered.
3. The investigation followed and in due course the applicant was sent up to stand trial in the Court of law.
4. I have heard learned counsel for the applicant and the learned counsel for the State.
5. It has been contended by the learned counsel for the applicant that the applicant is innocent and he has been falsely implicated in the above noted case by the police. It has, also, been contended that admittedly the alleged incident took place at 11-00 a.m. near a Petrol Pump where, obviously, in addition to vehicle drivers/passengers, staff working is always available but the police did not make any person either as Mashir of recovery of alleged one kilogram Bhung from the possession of the applicant nor his arrest. It has, further, been contended that the Mashirs of arrest and recovery are subordinate of the complainant and. as such their evidence will not be, fair and free from doubts as at any rate such Mashirs have to support their officer.
6. Learned counsel appearing on behalf of the State though concedes to the above legal position but raises objection to the grant of bail.
7. I have given my anxious consideration to the arguments of the respective parties, perused the record and am of the considered view that for what has been argued by the learned counsel. Mr. Syed Zahir Hussain Chishti, applicant, Sheruddin, has, successfully, made out his case for bail which is granted to him provided he furnishes surety in the sum of Rs.50,000 (Rupees fifty thousand only) and P.R. bond is the like amount to the satisfaction of the trial Court.
8. H.B.T./S-58/K Bail granted.