' SHAHNAWAZ TARIQ, J.---Through the instant criminal bail application, the applicant Shah Nawaz alias Shanoo seeks his bail in Crime No,126 of 2013 registered with Police Station Rohri under section 9(c), Control of Narcotic Substances Act, 1997.
2. Brief facts for the purpose of instant bail application are that on 21-6-2013, a police party of Police Station Rohri headed by SIP Islam Khan Sundrani, was on patrolling in the area, received spy information that accused Shah Nawaz alias Shanoo Jagirani, who,is absconder in crime No,3 of 2009, Crime No,177 of 2011 and Crime No, 178 of 2011 of Police Station Rohri, is available on the road in front of Murad Shah graveyard Rohri. Whereupon, the complainant party reached at the pointed place and apprehended the applicant/accused Shahnawaz alias Shanoo and secured 2220 grams of charas in shape of four pieces from his possession. 100 grams of charas from each piece were segregated and sealed separately. Such mashirnama was prepared at the spot and the accused and the property were brought at police station, where F.I.R. Was lodged against the applicant.
3. The applicant moved his previous bail application before the court of learned Sessions/Special Judge (CNS) Sukkur, but the same was declined vide order dated 3-8-2013, as such the present bail application has been filed.
4. I have considered the arguments advanced by Mr. Amanullah Malik, advocate for the applicant, Mr. Zulfiqar Ali Jatoi, learned DPG for the State, scanned the available record with assistance of both sides and case law cited by them very carefully.
5. The learned counsel for the applicant has contended that the applicant is innocent and has falsely been implicated by the police due to previous grudge. He further contended that on 15-6- 2013, the SHO Police Station Rohri along with other police officials entered into the house of one Ghulam Asghar real cousin of the applicant and taken away valuable articles, so he on 20-6-2013, approached to the court of Sessions Judge, Sukkur for legal action against SHO Police Station Rohri and his subordinates, and notices were issued to the Rohri police, where upon said police has falsely booked the applicant and his close relatives in various false F.I.Rs, He further contended that all the witnesses/mashirs are police officials and no independent person was associated as witness or mashir although police received prior information and place of recovery is a main road and alleged recovery was made in day time. He further urged that out of 2220 grams Charas in shape of four pieces allegedly recovered from the applicant, only 400 grams were sent to Chemical Examiner as such the applicant shall be saddled with only that quantity and thus his case falls under section 9(b) of C.N.S. Act, which does not come within prohibitory clause of section 497, Cr.P.C.
6. In support of his contentions, he has relied upon 2005 M LD 1056, 2013 YLR 1840, 2011 PCr.LJ 1200, 2012 M LD 1713(b) and 2012 YLR 553.
7. He also relied upon an unreported case of Muhammad Chuttal son of Afzal Muhammad Gopang v. The State, Criminal Bail A. No:503 of 2000, dated 2-5-2001, wherein 30 KG charas was recovered from possession of accused but only one KG charas was separated and sent for chemical examination, hence, bail was granted to the accused. He also relied upon another unreported case of Muhammad Afzal son of Mir Afzal v. The State, Criminal Bail A. No, 184 of 2010, dated 22-3-2010, where in 2200 grams charas was recovered from the possession of accused and only 200 grams were sent for chemical examination; hence, accused was admitted to bail.
8. In case of Muhammad Sarfraz v. The State 2012 YLR 553 (Supra), it has been held that charas weighing 5 KGs in shape of rods, consisting of 500 pieces, was allegedly recovered from the possession of accused and from secured narcotic substance, a sample of one gram each was sealed separately for chemical examination. Said memo was silent as to the number of rods and pieces secured as sample. Expert report has shown that one envelope parcel was received as stuffed with multiple pieces of charas weighing 500 grams as net and 30 grams out of said 500 grams appeared to have been consumed in the analysis, accused was admitted to bail in the circumstances.
9. In case of Abdul Naeem v. The State, 2012 M LD 1713 (Supra), it has been held that first memo of arrest had been prepared at the spot without joining any private witness though available and the second memo was prepared after recovery of capsules containing heroin from accused four days thereafter without any plausible explanation of such delay. According to challan 780 grams heroin had been recovered, but the report of Chemical Examiner showed that recovered substance was 665 grams, guilt of accused, thus, needed further probe in terms of section 497(2), Cr.P.C., accused was admitted to bail in the circumstances.
10. In case of Bahwal alias Naang v. The State, 2011 PCr.LJ 1200 (Supra), wherein it has been held that deeper appreciation of the evidence at bail stage could not be gone into, but only it was to be seen as to whether accused was prima facie connected with the alleged offence or not. In present case police acted on the spy information whereas police must have associated some private persons during alleged arrest. Delay of 7 days in sending the substance to the laboratory had not been explained, accused was admitted to bail in the circumstances.
11. In the case of Shahid v. The State, 2013 YLR 1840 (Supra), it has been held that for the purpose of bail in such like offences, the quantity of contraband and the expected quantity of punishment which, was to be awarded at the conclusion of trial, was to be taken into account while allowing bail to the accused. In the present case, in view of the quantity of narcotic recovered, there was no possibility of awarding maximum punishment provided under sub-clause (c) of section 9 of C.N.S. Act. Investigation against accused was completed and he was no more required for any further investigation. Accused was neither a previous convict nor involved in such like offences, keeping accused behind the bars, would serve no useful purpose to prosecution, in the circumstances accused was admitted to bail.
12. In case of Shah Nawaz v. The State, 2005 M LD 1056 (Supra), it has been held that accused had no criminal history and was, never involved in any criminal case of like nature. Accused also did not have the notoriety as drug pusher, case against the accused fell under section 9(b) of C.N.S. Act, bail was allowed to him in circumstances.
13. Conversely, the learned A.P.G. Has supported the impugned order and opposed the grant of bail to the applicant on the ground that a considerable quantity of the charas was recovered from the possession of accused which cannot be expected to have foisted upon the accused in absence of any animosity of police with accused.
14. Learned D.P.G has relied upon 2007 YLR 1026 and 2010 M LD 1065.
15. In case of Muhammad Ashique v. The State, 2007 YLR 1026 (supra), it has been held that quantity of 250 grams of 'Post' was recovered from accused which was sent to Chemical Examiner, who reported that it contained Morphine, therefore, accused is, prima facie, involved in a case falling within the prohibitory clause of section 497, Cr.P.C., hence, not entitled to concession of bail.
16. In case of Irshad Jatoi v. The State, 2010 M LD 1065(supra), it has been held that number of pieces of charas weighing 100 grams as samples for chemical analysis were sent to the chemical examiner whose report regarding such samples was positive, accused had not placed on record any material to show enmity of the complainant with accused, prima facie there was no question of false implication of accused in the crime, hence, his bail application was dismissed.
17. From the anxious perusal of the available record, it has been transpired that on 20-6-2013, one Ghulam Asghar Jagirani has filed Criminal Miscellaneous A. No, 584 of 2013 under section 22-A and 22-B, Cr.P.C. Against SHO Police Station Rohri and his subordinate staff, and in retaliation on 21-6- 2013 three F.I.Rs, bearing Nos.125 of 2013, 126 of 2013 and 127 of 2013 and on 23-6-2013 fourth F.I.R.
No,130 of 2013, were lodged against the applicant and his close relatives by the Rohri police.
18.One Soornar Khan Jagirani, the cousin of the applicant filed C. P. No, 1970 of 2013, with prayer to direct DIG Sukkur for re-investigation, and same was disposed of by this court vide order dated 26- 7-2013, in view of the report furnished by the SHO Police Station Rohri that accused were acquitted in the above referred F.I.Rs,
19. The factum of animosity of prima facie produced by either of the party with cogent and inspiring-confidence iota of evidence, it must be taken in to prime consideration by the court even if it was produced by the accused in his defence at bail stage, irrespective of heinousness of the offence or recovery of considerable quantity of narcotics substance as claimed by the prosecution, the concerned court shall not be influenced from the sensitivity of alleged offence while considering the versions of prosecution and defence in juxtaposition. To ensure the basic norms for administration of justice, each and every coin of doubt must be deposited in account of the accused.
20. In view of the above facts and on the basis of tentative assessment of the evidence available on record, I am of the view that in the specific prevailing circumstances, the factum of animosity of Rohri Police with the applicant could not be ruled out.
21.For the foregoing reasons, the applicant has prima facie succeeded to make out case of further inquiry as required under subsection (2) of 497, Cr.P.C. For extension of concession of bail.
Accordingly, the applicant is admitted to bail upon furnishing of solvent surety in the sum of Rs,1,00,000 and PR bond in like amount to the satisfaction of the learned trial Court.
22.The observations reflected in instant order being tentative in nature should not prejudice the trial being conducted by the learned trial Court.