MUHAMMAD ASHRAF Versus State
ORDER
ZULFIQAR AHMAD KHAN, J.--- Through the instant Criminal Bail Application, applicant Muhammad Ashraf seeks post-arrest bail in Crime No.198 of 2018, registered at Police Station Tando Ghulam Hyder under section 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 07.01.2019.
2. Concisely facts of the case are that on 21.12.2018 at 1710 hours complainant SIP Haji Mehmood Khan Leghari of PS Tando Ghulam Hyder left Police Station along with his subordinate staff for patrolling and after patrolling when reached at Nang Shah Stop, on a tip-off, at about 1800 hours they apprehended the present applicant and during search recovery of 2100 grams charas and Rs.700/- were affected from his possession. The accused and case property were brought at Police Station and FIR was registered against the applicant.
3. Learned counsel for the applicant inter alia contends that recovery affected from the applicant is 2100 grams charas however, chemical report is yet not received; no independent person has been cited as witness; applicant has no previous criminal record; all the prosecution witnesses are police officials hence, there is no question of tampering with the prosecution evidence. He contended that applicant is behind the bars since his arrest and the trial Court dismissed the bail application of the applicant despite the fact that chemical examiners report has not come on record. He lastly contended that before the alleged incident applicant has moved an application under section 491, Cr.P.C. before the Sessions Judge, Tando Muhammad Khan against the police officials on the ground that the police officials forcibly entered into the house of applicant and took away the applicant's son and kept him in wrongful confinement, as such, due to filing of the above case, the complainant involved the applicant in this false case.
4. Learned Asst: Prosecutor General while opposing the instant bail application contends that this is a heinous crime against society, however, she concedes that there is no criminal history of applicant.
5. I have carefully considered the arguments of learned counsel for the applicant, learned A.P.G for the State and perused the material available on record. Appraisal of the record shows that the allegations against the applicant are that he was arrested on a tipoff, and from his possession 2100 grams of hashish (charas) was recovered. There was before hand information, but in spite of such information, the raiding police party did not try to associate a private witness. The recovery was taken place from a populated area but no effort was made by the police to associate any person from the locality to become witness of the 'memo of arrest and recovery'. Further, the FIR was lodged on 21.12.2018 and since then chemical examiner report has not been reached either before the trial Court or before this Court, as such, without examining the chemical report as to whether the recovered article was charas or not, the applicant cannot be kept behind bars for an indefinite period. Moreover, the Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 provides that no person shall be deprived of life or liberty save in accordance with law and fundamental rights cannot be deprived until and unless overwhelming and compelling evidence is available to attack this fundamental human rights.
6. It also appears from the record that prior to lodging of the instant FIR, the applicant has moved an application under section 491, Cr.P.C. bearing Cr. Misc. Application No.62 of 2018, before the Sessions Judge, Tando Muhammad Khan against the complainant and other police officials for the abduction of applicant's son, as such, seemingly due to filing of the above case, the complainant might have involved the applicant in this case. There is no mention in the FIR that from where the police brought the digital scale and what type of digital scale, the police used for weighing the alleged recovered contraband item. Furthermore, as all the prosecution witnesses are stated to be police officials, there is no chance of the accused tampering with the evidence. He has already spent more than one and half month behind bars however, even the charge has not been framed against the applicant so far.
7. 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 S.I.P Haji Mehmood Khan Leghari has also acted in this case as Investigating Officer. Although the evidence of the complainant/police official 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).
8. The ultimate outcome of the above discussion is that since the applicant is entitled to bail; therefore, the applicant is admitted to bail subject to his furnishing solvent surety of Rs. 50,000/- (Rupees Fifty Thousand) and PR bond in the like amount to the satisfaction of the trial Court through my short order dated 06.02.2019 and these are the reasons for the same.
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/M-110/Sindh Bail granted.