ALI RAZA Versus State

ORDER

SHAHNAWAZ TARIQ, J.--- Through captioned post arrest bail application, applicant Ali Raza Mirbahar has impugned order dated 18.09.2015, passed by the Court of learned Special Judge (Narcotics), Sukkur, whereby his earlier bail application was declined.

2. Relevant facts spelt out from instant application are that complainant apprehended the applicant on prior information and recovered three patties of Charas, total weighing 1600 grams and from each patti 100 grams were separated for Chemical Examiner's report, hence instant FIR.

3. Learned counsel for applicant, inter alia, contended that applicant is innocent and working as waiter in a Hotel near Numaish Chowk, Old Sukkur and one day prior to the incident, one constable came at the Hotel and ordered for tea, but the owner of Hotel was not available at that time; hence he could not serve him with gratis tea, upon which, there was exchange of hot words and on the account of above annoyance, present applicant has been falsely implicated in case. He further contended that despite prior information complainant has failed to associate any private person to act as mashir; that total weight of recovered narcotic substance falls within the ambit of border line case and in similar circumstances, superior Courts have taken a lenient view while dealing with the question of bail. Learned counsel relied on the case of Raja Khan v The State (2014 SLJ 1018) and Ali Hassan alias Hassan v. The State (2014 YLR 188).

4. Learned APG contended that Chemical Examiner's report has not yet been received, as no Chemical Examiner has been posted for months after retirement of previous expert at Chemical Examination Government Laboratory at Rohri, and he has also issued a letter to Health Secretary, Government of Sindh for posting any expert.

5. Heard the arguments advanced by learned counsel for the parties supported with case law and scanned the material available on record.

6. Perusal of record reflects that applicant was apprehended in bright day from the populated area and complainant recovered 1600 grams Charas from his possession. It is significant to mention that despite receipt of prior information by the complainant and having sufficient time, he neither made any serious efforts to associate any private person to act as mashir nor hired any person from the locality to maintain the transparency of alleged recovery. Learned APG has not been able to give any cogent explanation as to why complainant was unable to secure two Mashirs from the public from populated area. In the case of Mushtaq Ahmed v. The State, PLD 1996 SC 574, the honourable Supreme Court has observed that alleged recoveries having constituted the offences which were the subject-matter of the trials, Trial Court and the High Court should have appraised and scrutinized the evidence of the police personnel with care and caution and should also have taken into consideration the factum that there was no justifiable reason not to comply with the requirement of section 103, Cr.P.C.

7. It is also important to mention that samples of recovered Charas were dispatched by the complainant timely, but after lapse of more than five months, the trial has been held-up for want of Chemical Examiner's report, as after retirement of earlier Chemical Examiner, no one has been posted at Chemical Examination Laboratory, Rohri for about months by the Government of Sindh and learned APG has also issued such letter to the Secretary Health, thus applicant has been deprived from the right of fair trial as guaranteed by the Constitution of Pakistan and he is behind the bars without any further proceedings and suffering due to the act of negligence and transgression of prosecution. Indeed, investigation has been completed and after submission of Challan, charge has also been framed and applicant is no more required for investigation and his further detention will not serve any useful purpose, as basic rule is bail and not Jail. There is no apprehension for tampering with prosecution evidence as all PWs are police officials.

8. Considering the above circumstances, applicant has succeeded to make out a case for grant of bail on the ground of further enquiry as contemplated in section 497(2), Cr.P.C. Consequently, applicant is admitted to post arrest bail subject to his furnishing solvent surety in the sum of Rs.100,000/- and P.R. Bond in the like amount to the satisfaction of learned trial Court.

9. The observations made supra are tentative in nature and learned trial Court shall decide the case strictly on merits.

HBT/A-69/Sindh Bail grante