MALANG JAN Versus State
ORDER
MALIK HAQ NAWAZ, J.--- The petitioners were booked for the offence under section 9(c), C.N.S.A., 1997 vide FIR No.20/17 of Police Station City Chilas dated 31.01.2017.
2. The precise facts of the case as reflected in the FIR lodged on the complaint of DSP Abdul Samad are that during investigation of case No. 19/2017 registered under section 13, A.O. read with sections 6/7, A.T.A., 1997, the present petitioners and one Imam Hadi (Not petitioner before us) have concealed 3 packets of charas in Sabzi Mandi. On the above disclosure they were taken to the Sabzi Mandi which was owned by them and from a wooden crate, they got recovered 3 packets of charas, each packet was weighing 1 Kg. One chitank of charas was separated from the recovered stuff and the remaining charas was sealed at the spot. DSP Abdul Samad, submitted a murasila and on the basis of said murasila FIR was chalked out and investigation of the case was handed over to SIP Mehboob Riaz.
3. The petitioner applied for post arrest bail in the Court of learned Sessions Judge Diamer, by filing two separate petitions i.e Cr. Misc. No. 05/17 by the present petitioners, while Cr. Misc. No. 06/2017 was filed by their other co-accused Imam Hadi. Co-accused Imam Hadi was allowed bail while bail of present petitioners was declined vide order dated 06-04-2017. Being aggrieved from the said order, the petitioners have come to this Court for concession of bail.
4. The learned counsel submitted that the place of recovery was thickly populated area but no independent witness of recovery has been cited, despite the facts that the present petitioners were under custody and there was no chance that the contraband material will be removed therefrom. Per learned counsel no search warrant was obtained by the local police and only a meager quantity of the charas was separated for chemical expert opinion. The violation of mandatory provision of section 103, Cr.P.C. cannot be condoned in the peculiar circumstances of this case. Co-accused Imam Hadi with the same allegations have been admitted to bail by the learned trial Court and under the rule of consistency the petitioners are also entitled for the concession of bail. The learned counsel relied on 2017 PCr.LJ 56, 2017 MLD 303, 2017 PCr.LJ 522, 2002 PCr.LJ 1429 and 2010 YLR 844.
5. On the other hand the learned Dy. Advocate General, opposed the petition and stated that a huge quantity of charas was recovered from the petitioners on their pointation which was in their exclusive knowledge. The offence falls within the prohibitory clauses of section 497, Cr.P.C. and bail should not be allowed to the accused/ petitioners.
6. We have heard the learned counsel for the parties and perused the record of the case minutely.
7. No doubt the petitioners are directly charged in the FIR and as alleged 3 Kg of charas has been recovered from a wooden crate, on the pointation of the present petitioners, but at the same time it is evident from the contents of FIR and the contents of recovery memo, that both the accused were in police custody in another case and were taken to the place of recovery. Recovery was effected on their joint pointation, which is not admissible in evidence. Under the law joint recoveries are always considered defective. Wisdom could be drawn from the judgments reported in 1976 PCr.LJ 1462, PLD 1989 Kar. 466, 1974 PCr.LJ 501 and PLD 1997 SC 408. Another lacuna which is apparent on the face record is that as per contents of FIR and recovery memo 3 packets of charas were recovered from the possession of the petitioners and each packet was containing 1 kg of charas, only 1 chitank of charas was separated for chemical experts opinion. The learned Dy. Advocate General, could not explain from which packet one chitank of charas was taken for expert opinion, there exists an ambiguity and benefits of which are to be extended to accused even at bail stage. When a case become doubtful or debatable the benefits of the same are always extended to the accused as a matter of right and not as a matter of grace.
8. In view of above discussion the petitioners are allowed bail subject to their furnishing bail bonds in the sum of Rs. 10,00,000/- (ten lac) with two local sureties each in the like amount to the satisfaction of Special Judge Daimer.
JK/170/GB Bail granted.