FAYYAZ ALI Versus THE STATE
The applicant Fayyaz Ali sought post-arrest bail facing charges under section 9(b) of the Control of Narcotic Substances Act, 1997, regarding the alleged recovery of 1000 grams of Charas. The core legal question was whether the omission of mashirs' names in the FIR creates a sufficient doubt regarding the authenticity of the recovery mashirnama to warrant bail, particularly when the offence does not fall within the prohibitory clause of section 497(1) of the Code of Criminal Procedure 1898. The Sindh High Court held that the failure to disclose the names of police mashirs in the FIR creates a reasonable doubt as to the timing and authenticity of the recovery, bringing the case within the scope of further inquiry under section 497(2), Cr.P.C. The court laid down the principle that lapses in recording material particulars such as mashirs' names in the FIR can be extended as a benefit of doubt to an accused person even at the bail stage, entitling them to release on bail.
- Does the non-disclosure of mashirs' names in the FIR create sufficient doubt to entitle an accused to post-arrest bail?
- Does an offence under section 9(b) of the Control of Narcotic Substances Act, 1997 fall within the prohibitory clause of section 497 of the Code of Criminal Procedure, 1898?
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 497(1), Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. Applicant Fayyaz is facing charge under section 9(b), Control of Narcotic Substances Act, 1997 in Crime No.7 of 2003 Police Station Excise Police Circle Tando Muhammad Khan.
2. According to the prosecution story on 10-12-2003 at 5-30 p.m. in presence of two police Mashirs 1000 grams of Charas and Rs.50 were recovered on the personal search of the applicant and such F.I.R. was lodged on the same day at 6-30 p.m. by Inspector Jameel Ahmed Rajput of Excise Police Circle, Tando Muhammad Khan.
3. Learned counsel for the applicant contends that the applicant has been falsely implicated in the crime and the Charas has been foisted upon him. He urged that in case the recovery of Charas was made from the applicant an hour before lodging of F.I.R. then in normal course names of the Mashirs should have been mentioned in the F.I.R. This fact clearly creates doubt in the case of prosecution that the Mashirnama of recovery was prepared subsequent to the lodging of F.I.R. Learned counsel further contends that the offence for which the applicant has been charged does not fall within the prohibitory clause of section 497(1), Cr.P.C., therefore, he is entitled for bail.
4. Mr. Anwar Ansari learned State Counsel did not dispute that the names of two police Mashirs have not been disclosed in the F.I.R. However, relying on the case of Afzal Ahmed v. The State 2003 SCMR 573, he contended that even for the offences where the punishment is up to 7 years, bail can be refused in appropriate cases.
5. We have carefully considered the arguments advanced by learned counsel and perused the case record which confirms that though the recovery of Charas has been shown from the applicant an hour earlier to the lodging of F.I.R. but the names of Mashirs, who are stated to be police personnel, have not been disclosed in the F.I.R. Such lapse on the part of the prosecution creates reasonable doubt about the authenticity of the Mashirnama of recovery, and benefit of such lapse can be extended to applicant even at bail stage. In our view p the case of applicant thus, needs further inquiry, therefore, he is entitled for bail.
6. In view of the above, the applicant is admitted to bail on his furnishing surety in the sum of Rs.1,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.
7. H.B.T./F-6/K Bail granted.