FAYYAZ ALI vs THE STATE
This matter concerns a bail application filed by the applicant, Fayyaz Ali, who was charged under Section 9(b) of the Control of Narcotic Substances Act, 1997, following the alleged recovery of 1000 grams of Charas. The core legal question was whether the applicant was entitled to bail given the prosecution's failure to disclose the names of the police Mashirs in the First Information Report (F.I.R.), despite the recovery allegedly occurring an hour prior to its registration. The Court held that the omission of the Mashirs' names in the F.I.R. created a reasonable doubt regarding the authenticity of the recovery proceedings (Mashirnama). Consequently, the Court determined that the applicant's case required further inquiry and granted bail. The key principle laid down is that material lapses in the prosecution's documentation, such as the failure to name recovery witnesses in the F.I.R., can create reasonable doubt sufficient to entitle an accused to the benefit of bail at the pre-trial stage, even where the offence involves narcotics.
- Does the failure to name recovery witnesses (Mashirs) in the F.I.R. create a reasonable doubt sufficient to grant bail?
- Is an accused entitled to bail when the prosecution's case requires further inquiry due to procedural lapses?
- Can bail be granted in narcotics cases where the offence does not fall within the prohibitory clause of Section 497, Code of Criminal Procedure 1898?
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 497(1), 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.
4. 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.
5. ' 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 SCM R 573, he contended that even for the offences where the punishment is up to 7 years, bail can be refused in appropriate cases.
6. ' 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 the case of applicant thus, needs further inquiry, therefore, he is entitled for bail.
7. ' 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.