IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Cr. Bail Appln. No: S-397 of 2011.
1. For orders on M.A No. 1752 /2011.
3. For orders on M.A No. 1633 /2011.
4. For Hearing.
Mr. Asif Ali Abdul Razzak Soomro, advocate for the applicant.
Mr. Naimatullah Bhurgri, State Counsel.
IRFAN SADAAT KHAN-J. This bail application has been filed in respect of offence U/S 9(c) of CNS Act r/w Sections 484, 34 PPC arising out of Crime No.32/2011 of P.S Qubo Saeed Khan.
Briefly the prosecution case is that on 09.06.2011 complainant SIP/SHO Ghulam Mohammad Bozdar alongwith subordinate staff took investigation bag and left P.S Qubo Saeed Khan vide Roznamcha Entry NO.10 for patrolling and while visiting different places, at Katchi Pull they received spy information about three persons carrying opium in a car for sale from Balouchistan via Chaki Pul road towards Qubo Saeed Khan on which SIP Ghulam Mohammad Bozdar held nakabandi on southern bank of Saifullah Shakh near PP Chaki Pull and started checking every vehicle. At about 1900 hours a silver colour Alto car was stopped from which three persons sitting therein alighted. ASI Mumtaz Haider Chandio and PC Aijaz Ahmed were associated as mashirs and the accused were asked about their identity on which one accused disclosed his name as Amanullah S/O Ahmed Khan Admani Magri R/O Admani Mohalla Shahdadkot. From his personal search, a loin was fastened around his waist which contained opium in shape of pieces, weighing 500 grams out of which 100 grams was sealed separately as sample and one pistol No.310024091 of 30 bore was also recovered from left folder of his shalwar and its magazine contained 05 live bullets of 30 bore and one License Book No.31971/A/UM, dated 06.08.98 in the name of Amanullah Magsi and cash Rs.500 were recovered from his pocket. Other person disclosed his identity to be Shahnawaz S/O Rab Nawaz Buriro R/O Langah Mohalla, Shahdadkot and on his body search a loin was found fastened around his waist, which contained opium weighing 500 grams, out of which 100 grams was sealed separately and cash Rs.200/= was found from his side pocket while third person disclosed his name as Abdul Jabbar S/O Ali Mohammad Mirjat R/O Admani Mohalla, Shahdadkot on his which personal search, a loin was found fastened around his waist which contained opium weighing 500 grams, out of which 100 grams was sealed separately for chemical analysis. Nothing was secured from the search of the car. Green coloured government number plate was placed on both the bumpers of the car i.e. rear and front. On further inquiry the accused disclosed that they have attached fake number plates and blue light on the car and don’t possess papers of the vehicle. Thereafter accused were brought to P.S alongwith the recovered contraband items and FIR was lodged to the above effect.
Mr. Asif Ali Soomro appearing on behalf of the applicant at the very outset submitted that the applicant was apprehended on the allegation that 500 grams of opium was recovered from his possession which items were available in pieces. He submitted that admittedly 100 grams of the opium was sent for chemical examination and it is not clear as to whether other pieces were also opium or not. He further stated that the prosecution has miserably failed to point out that the other pieces allegedly recovered from the possession of the applicant were also opium which has made the present case highly doubtful and a case of further inquiry. He further submitted that the recovery of 500 grams opium does not fall within the prohibitory clause of section 497(i) Cr.P.C. He therefore, contended that the learned trial Court was not justified in refusing bail to the applicant. He submitted that the applicant is innocent as he has been falsely involved in this case as the applicant/accused was having enmity with the local police who involved him in the alleged crime. He also submitted that all the prosecution witnesses are police officials and have involved the applicant with malafide intention. He vehemently contended that as only 500 grams of opium was recovered in the shape of pieces out of which only 100 grams was sent for chemical examination, so at the most the applicant could be convicted for 100 grams only which does not fall within the prohibitory clause. In support of his above contentions, learned counsel has relied upon the following decisions:
1. Mohammad Saleem v. The State (2002 MLD 1123)
2. Nazan Shah v. The State (1998 P.Cr.L.J. 1540)
3. Nadeem v. The State (2007 MLD 1092).
4. Pervaiz Ahmed v. The State ( PLD 2008 Karachi 14).
5. Mohammad Hashim v. The State (PLD 2004 S.C 856).
The State Counsel on the other hand has opposed the bail and submitted that the applicant/accused was caught red handed with the contraband items and deserves no leniency in this regard and the trial Court was justified in refusing to grant bail to the applicant/accused.
I have heard both the learned counsel at length and have perused the record. It is an admitted position that opium in the shape of pieces was recovered from the applicant/accused and only one piece of 100 grams was sent for chemical examination and is not clear as to whether other pieces recovered from the applicant/ accused were also opium or not. When a specific question was asked from the State Counsel that how he would substantiate that other pieces were also opium, he could not controvert this fact. It is seen from the record that main question of possession of the 500 grams of opium needs to be proved with cogent material and evidence that whether other pieces of the contraband items recovered from the applicant/accused were also opium or not. Thus the present case appears to be a case of further enquiry as it is yet to be determined that whether case of the applicant/accused falls under clause 9(A) or 9(B) of the CNS Act, which fact has not been denied by the learned State Counsel. It is also seen that there is no expert opinion available with regard to the other pieces of the contraband item found in possession of the applicant/accused hence the question whether the entire substance was opium or not is to be determined at the trial after examination of evidences brought on record. It is a trite proposition of law that whenever there is change in the quantum of the substance, the case needed verification which is to be established by the prosecution.
In view of the observations made above, in my opinion the applicant/accused was able to bring home the present case to be a case of further inquiry therefore, bail is granted to the applicant by my short order dated 09.08.2011 and these are the reasons for the same.
This criminal bail application stands disposed of alongwith the listed applications.