ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

Cr. Bail  Appln. No: S-397 of 2011.    

 

 

Date                          Order with signature of judge.

             

            1.         For orders on M.A No. 1752 /2011.

            3.         For orders on M.A No. 1633 /2011.

            4.         For Hearing.                                                

 

09.08.2011.

Mr. Asif Ali Abdul Razzak Soomro, advocate for the applicant.

 

                        Mr. Naimatullah Bhurgri, State Counsel.

 

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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.

                                                                                                            JUDGE