' The petitioners namely Ali Raza, Syed Muhammad Qasim Ali and Jaffar Tayyar Syed, seek post- arrest bail in F.I.R. No,320 of 2007 dated 7-8-2007 registered under section 9(c)/C.N.S.A. At Police Station Sadar Jalalpur Jattan, District Gujrat.
2. As per prosecution version an information was received by the police that accused of F.I.R. No,107 of 2007 under sections 324/386., P.P.C. Etc. Registered at Police Station City Jalalpur Jattan, are present along with their companions in the Haveli of Sabir Hussain Shah. On the said information the police raided upon the said Haveli and found the present petitioners and two others placing Charas in the iron box. On seeing the police party they tried to run away along with the iron box, while leaving the place of recovery iron box fell in the courtyard of Haveli and they escaped from the spot. Iron box was taken into custody by the police and it was opened and Charas was found in the same weighing 9500 grams.
3. Learned counsel for the petitioners contends, that the instant case is result of enmity of Syed Riaz Hussain Shah, who was S.H'.0., Police Station Jalalpur Jattan. Ali Raza/petitioner No,1 in May, 2007 had filed a complaint to Anti-Corruption Department 'against the said S.H.O. As he obtained illegal gratification from him but the work had not been done. Subsequently, the police had abducted one Nasir Saleem, Jaffar Tayyar Syed/petitioner No,3 and Syed Abdul Hussain and kept them in illegal confinement for which habeas corpus petition bearing Criminal Miscellaneous No,766/H of 2006 was filed before this Court for the recovery of the above said persong who were recovered and produced before this Court. This Court converted the habeas petition into bail application in both the cases i.e. F.I.R. No,141, dated 26-7-2007 under section 212, P.P.C. And F.I.R. No,303, dated 27-7- 2007 under section 365, P.P.C., and Jaffar Tayyar Syed/petitioner No,2 (the detenu) was admitted to bail, vide order, dated 30-7-2007.
' It is further contended that subsequent to the said habeas petition, another F.I.R. No,303, dated 27- 7-2007 under section 365, P.P.C., was registered at Police Station Sadar Jalalpur Jattan against petitioners Nos.1 and 2 and two others. The petitioners approached the trial Court and were allowed ad interim bail on 3-8-2007 till 8-8-2007. Thereafter, the present F.I.R. i.e. F.I.R. No,320, dated 7-8- 2007 was registered at the same police station with mala fide intention and ulterior motive after grant of ad interim bail. Learned counsel for the petitioners further submits that there is a clear cut finding recorded by this Court while deciding Criminal Miscellaneous No,5426/B of 2007 that the present case is result of mala fide as the petitioners are law abiding citizens. Ali Raza/petitioner No,1 came back from Italy on 6-3-2006, and similarly petitioner No .3 is a heart patient and was treated for Angiography from Punjab institute of Cardiology on 22-12-2005. He further submits that because of the application submitted by petitioner No,1 to Anti-Corruption Department against the police officials i.e. D.S.P. Sadar, S.H.O. Po lice Station Jalalpur Jattan and others for proceeding against them for their wrong doing which has been done on their part and the petitioners are being involved in different F.I.Rs, on one pretext or the other. He: further submits that after the grant of bail by this Court in F.I.R. No,303 of 2007 under section 365, P.P.C. Of the same police station, they were arrested and they have also been granted bail by the Additional Sessions Judge, vide order, dated 19-9-2007, in F.I.R. No,167, dated 19-4-20'07 of the same police station under section 302, P.P.C. In which the petitioners were not even named in the F.I.R.
4. On the other hand, learned Deputy Prosecutor-General states that the huge quantity of Charas has been recovered from the petitioners and they are involved in various cases and have a criminal history.
5. Heard. There is sufficient material on record in support of the petitioners' version that they have been involved falsely by the police in the instant case. Initially they were involved in F.I.R. No,303 of 2007, they were granted ad interim bail by this Court, vide order, dated 30-7-2007 while converting the habeas corpus petition (Criminal Miscellaneous No,776/H of 2007) into bail petition with the observations that "the case F.I.R. No,303, dated 27-7-2007 under section 365, P.P.C. Police Station Sadar Jalalpur Jattan has been registered against the detenu when he is admittedly stated to be in the custody of respondents Nos.3 and 4, who have not proceeded in accordance with law. The arrest of the detenu has not been recorded at both the police stations nor he has been produced before any Magistrate. In these circumstances, this petition is converted into a bail application in both the cases i.e. F.I.R. No,141, dated 26-7-2007 and F.I.R. No,303, dated 27-7-2007 and the deem is allowed bail subject to his furnishing bail bond! In the sum of Rs,50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the D.R.(J.) of this Court".
6. This Court while deciding Criminal Miscellaneous No,5426/B of 2007 also gave a clear finding that the present case has been registered as a result of mala fide which reads as follows:- "After passing of this order the petitioner had been subsequently, involved in another case F.I.R.
No,320 dated 8-8-2007 under section 9(c) or C.N.S.A. With mala fide intention."
' The aforesaid finding recorded by this Cain was not challenged in the apex Court.
7. The matter not ended here but the )olice also got the petitioners involved in another F.I.R. No,167 of 2007 dated 19-4-2007 under section 302, P.P.C. Of Police Station Sadar Jalalpur Jattan. Although in the said F.I.R., they have not been named as an accused, but they were arrested in the said case.
However, they were admitted to bail by the learned Additional Sessions Judge, Gujrat, vide order, dated 19-9-2007. The recovery memo. Dated 7-8-2007, photo copy of which has been placed on the record as Annexure "N" at page 62 of the file is also without F.I.R. Number and the alleged recovery has not been effected at the instance of either of the petitioners and Charas was taken into possession from the courtyard of one abir Hussain Shah and none of the petitioners was apprehended at the spot. Needless to mention here that in pursuance of order, dated 27-8-2007 passed by learned Sessions Judge, Gujrat, F.I.R. No,753, dated 3-9-2007 has also been registered with Police Station Jalalpur Jattan against police official regarding the abduction of Jaffar Tayyar Syed (petitioner No,3).
8. There is no cavil with the proposition that law is not to be stretched in favour of prosecution and bail cannot be withheld as punishment. Benefit of doubt arising if any can be given even at bail stage. Accused is presumed to be innocent till he is proved guilty beyond reasonable doubt by the prosecution. Notwithstanding the bar contained in section 51 of the Control of Narcotic Substances Act, 1997, bail can be granted to an accused person. Reliance is placed on Gul Zaman v. The State 1999 SCM R 1271.
9. For what has been stated above, prima facie there are reasonable grounds to believe that the guilt of the petitioners is a matter of further inquiry falling within the meaning of section 497(2), Cr.P.C. Accordingly, they are admitted to bail subject to furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac) each with two sureties each in the like amount to the satisfaction of the trial Court. The observations made in this order are tentative in nature and would not prejudice the trial.