HAZOOR BUX Versus State
ORDER
ZULFIQAR AHMAD KHAN, J. ---Through the instant Criminal Bail Application, applicant Hazoor Bux seeks post-arrest bail in Crime No.11 of 2017, registered at Police Station ANF Hyderabad under sections 6, 9(c) of C.N.S. Act, 1997. Earlier the bail plea of the applicant was declined by the learned trial Court vide order dated 05.09.2017.
2. Concisely facts of the case are that on 31.07.2017 at about 1530 hours complainant Sub-Inspector Sami Hayat Tarar of ANF, Hyderabad lodged FIR of Crime No.11 of 2017 narrated the following story:-
"Today dated 31.07.2017, I Sub-Inspector Sami Hayat Tarar was present at Police Station ANF, Hyderabad, when special informer came at PS through higher officer and informed that a person namely Hazoor Bux will come at Wadhu Wah Bus Stop, Main Superhighway for delivering huge quantity of narcotics to his special customer and if immediate action is taken, recovery and arrest is sure. On such information, on the orders of high ups, one raiding party consisting upon me SI, along with SHO/Inspector Rasheed, SI Salman Hyder, ASI Qurban Hussain, ASI Raheem Bux, PC Jazib Hussain, PC Ahmed, PC Zulqarnain, LNK Anwar Saeed, Sepoy Mohsin and other ANF staff, under supervision of AD Muhammad Akram Niazi, accompanied with spy informer, duly armed, left in official vehicles vide Daily Diary Departure entry No.7 at 1300 hours from this police station and reached at pointed place at 1330 hours and saw one person standing having black travelling bag in his right hand waiting for someone. The spy informer disclosed through pointation and signal that he is wanted person, to whom, apprehended with the help of subordinates along with black bag and requested the present people for acting as mashir of search, who excused due to fear of narcotic dealers, therefore, under compulsion, ASI Raheem Bux and ASI Qurban Hussain were appointed as mashirs and from apprehended person inquired his name and address. He disclosed his name Hazoor Bux son of Khair Muhammad, by caste Brohi, resident of village Ghulam Nabi Shah, Rajpari, PO Mirabad, Taluka Jhando Mari, District Tando Allahyar. On checking black traveling bag of right hand of Hazoor Bux, recovered 5 multi colour foil pack packets in black shopper. Each packet was opened, checked and found charas in double slab shape in each packet. Each packet was weighed on electronic scale and it became 1 KG each packet, total weight 5 KGs (gross) Charas. The Charas was put in same black shopper and travelling bag and then in cloth bag and sealed for chemical examination. On conducting personal search of apprehended person, recovered Rs.1100/- and one CNIC in the name of accused from right side pocket of his shirt. The accused was properly arrested and sealed parcel of recovered Charas and recovered articles from his personal search were taken into custody of ANF as per mashirnama and mashirnama was read over to the mashirs, who found this mashirnama correct and put their signatures on mashirnama and parcels of recovery".
3. Learned counsel for the applicant inter alia contends that while there was a clear case of spy information, however, no private mashir was associated by the complainant when particularly in the challan sheet it is clearly stated that the applicant received Charas from one Mumtaz Bhambro however, his name was not even mentioned in column No.2 of the challan. He further states that while in the FIR complainant stated that PC Zulqarnaian took charas for chemical examination however, it was received by driver Zulqarnain. He states that according to sentencing policy in the case of charas, the imprisonment of seven years and six months and fine of Rs.35,000/- were to be imposed per State v. Ghulam Murtaza (PLD 2009 Lah. 362). He further states that the story is false, fabricated, untrustworthy and highly unbelievable and is without any independent or corroborative piece of evidence. He states that there was an enmity between the landlord and the applicant, as such, on the behest of that landlord, police involved the applicant in this false case.
4. Learned Special Prosecutor ANF on the other hand contends that this is a case of charas of 5 kilogram which was recovered from the exclusive possession of the applicant and the chemical examination was done within 24 hours and the chemical examiner's report come positive showing that the substance was charas. He states that as per the case reported as 2015 SCMR 1077, the sentencing policy is not to apply while considering bail applications, and with regard to the contention that consignment was supplied by Mumtaz Bhambro since his address was not provided by the accused person therefore, he was not included in the challan.
5. I have carefully considered the arguments of learned counsel for the applicant, learned Special Prosecutor ANF and perused the material available on record. Admittedly, instant was the case of spy information to the extent that ANF knew that applicant Huzoor Bux has left his village with a load of Narcotics, and was destinated to hand over the same to a buyer and for that purpose he was to arrive at Wadhu Wah Bus Stop, Main Superhighway. With this piece of information, a team was constituted, which left the police station at 1300 hours vide departure entry No.07 dated 31.07.2017. It is pertinent to note that while it is mentioned in the FIR that the team left in a vehicle however, no vehicle number is mentioned nor it is mentioned that team left with the investigation and weighing kit and same is the case with the departure memo. Per prosecution story, the spy/informer pointed out towards the applicant/accused who was standing at the place of incident with a black bag. Notwithstanding that the raiding party knew that the applicant would hand over the consignment to some third person, the team did not wait for the accused to hand over the contraband to that buyer and arrested him. If the raiding party would have waited for the transaction to be completed, this would have brought the story to a logical end and no room for imagination would have been left. Either it was a preplanned attempt to arrest the applicant/accused only or there were some other considerations to not to implicate the person to whom consignment was to be supplied, in both the cases, it was a sloppy job (if it at all happened), creating jolts to the story of the prosecution, as opportunity for a possible corroborative close up was wasted. Also, when during the investigation it transpired that the consignment was received by the applicant Huzoor Bux from one Mumtaz Bhambro resident of Tando Allahyar however, the fact that the name of said Mumtaz Bhambro did not even appear in column No.2 of the challan, adds fuel to the already glowing doubts in a prudent mind, particularly in the backdrop that this entire transaction was taking place in a thickly populated area, but not a single private person was associated as mashir. If the applicant solely intended to handover the consignment to another person, one wonders why both of these (buyer/seller) chose a thickly populated area, as well as, decided to complete this transaction in the middle of the day? Further, as per FIR, Rs.1,100/- and CNIC were recovered from the possession of the applicant however, these recoveries do not find mention anywhere in the challan. The speed of light with which charas was sent to Laboratory and positive report was obtained within 24 hours, is clearly unbelievable as it usually takes weeks to get this activity completed. All these unrealities create doubts in the prosecution story which, even forces me to think whether such an incident ever took place or not; coupled with the fact that the raiding party chose to arrest the middle man and failed to bring the stocker and the buyer in the clutches of law; exponently multiplies the doubts. In these circumstances, when there is an allegation that the applicant/ accused was a farmer with no prior crime history and his counsel states that he has been falsely implicated in this case on the behest of his landlord, pieces of puzzle seem to fit tangently opposed to the prosecution story.
6. It is an admitted position that case has been challaned, applicant is no more required for investigation and admittedly the case of prosecution based upon the evidence of police officials, therefore, no question thus arise for tampering with their evidence at the hands of applicant. Since whole of the case of prosecution rests upon the evidence of police officials, therefore, their evidence is required to be minutely scrutinized at the time of trial whether offence as contained in the FIR allegedly committed by the applicant in a manner as narrated by the complainant or otherwise. There is nothing on record to show that applicant is previously convicted or has been arrested in a case of similar nature in past. It also appears from the record that complainant has also acted in this case as Investigating Officer. Although the evidence of the complainant/police officials who himself conducted investigation is also admissible in evidence yet for the safe administration of justice, he should have entrusted the investigation to some other police officers, so that nobody raise any finger on such evidence, therefore, on this ground and also it is yet to be determined by the trial Court whether investigation carried out by the complainant who himself acted as Investigating Officer of the case can safely be relied upon or otherwise. In this context I am fortified by the case of Raheel Abbas v. The State (2018 PCr.LJ 1307).
7. As to the assertion of the learned Special Prosecutor ANF, that 5000 grams charas was found in the possession of the applicant, before reading the indicator glowing on the digital scale, court would rather need to be satisfied beyond reasonable doubts that the story invented by the prosecution appeals to logic and whether prosecution has provided enough push for the story to have lift off the gravitational pull. What appears on the weighing scale (either 1 gram or 5,000 grams) is tiny light emitting diode (or a liquid crystal display) failing to shine the case of the prosecution. Undoubtly, scales could be tilted in favour of the accused anytime, if prosecution's story fails to appear plausible, which is the case at hand.
8. The residual effect of the above discussion in my tentative view is that the prosecution has miserably failed to connect the applicant with the crime, since he is entitled to bail, he is so admitted to bail subject to his furnishing solvent surety of Rs. 1,00,000/- (Rupees One Hundred Thousand) and PR bond in the like amount to the satisfaction of the trial Court.
9. Before parting, I would like to further observe that if the applicant, after getting bail, does not appear before the trial Court and the trial Court is satisfied that the applicant becomes absconders then it would be fully competent to take every action against the applicant and his surety in accordance with law.
10. Needless to mention that the observations made hereinabove are tentative in nature and shall not prejudice the case of either party at the time of trial.
MQ/H-20/Sindh Bail allowed.