SHAHNAWAZ TARIQ, J.---Through instant post arrest bail application, applicant Syed Hyder Ali Shah has impugned order dated 28.08.2015, passed by the Court of learned 1st Additional Sessions Judge/Special Judge CNS, Khairpur, whereby his earlier bail application was declined.
2. Necessary facts spelt out from instant FIR are that on spy information complainant reached at the pointed place, apprehended present applicant along with his two real brothers and recovered one plastic shopper containing 02 envelopes of Heroin powder weighing 1300 grams from present applicant, whereas from Zubair Shah 1500 grams Charas, while from Zameer Shah 1500 grams Charas and 1300 grams Opium. Complainant also lodged another FIR No,36 of 2015 against applicant in respect of same narcotics. However, Challans were submitted separately against all the three accused.
3. Learned counsel for applicant contended that applicant is innocent and has been falsely implicated in instant case by complainant, who is disputed with applicant, as co-accused Zameer Shah had filed harassm ent petition against him and other police officials; that in fact co-accused Zameer Shah had purchased a plot from Choudhary Asghar, whereupon one Ghulam Qadir, who is influential person of the locality, became annoyed and filed criminal complaint before 1st Additional Sessions Judge, Khairpur, against Choudhry Asghar and others including co-accused Zameer Hussain; that complainant with ulterior motive has involved all the three brothers falsely by foisting the Narcotics, as such entire family is suffering for their livelihood; that co-accused Zubair Shah has already been granted bail by the High Court; hence applicant is also entitled for grant of bail on the rule of consistency; that the contents of FIR are silent regarding weighing of Heroin powder wrapped in two envelopes and complainant has presumed total weight of recovered narcotics to be 1300 grams without deducting the weight of both envelopes, and this aspect of the case requires serious consideration; that in past, applicant and his brothers have never remained involved in any criminal case.
4. Learned APG contended that applicant was apprehended at the spot and during his personal search one plastic shopper was secured which was containing Heroin powder in two envelopes.
However, he candidly submitted that complainant has not mentioned the mode of weighing of recovered Heroin.
5. Perusal of material available on record and consideration of arguments advanced by learned counsel for the parties emanate that complainant despite prior information about the accused persons having narcotic substances in their possession for sale, he neither associated any independent mashir nor made any serious efforts to hire any public A person to act as mashir, and private persons should have been given preference if they are available at the spot rather than official personnel to maintain the transparency of the recovery. In the case of State v. Bashir and others PLD 1997 SC 408, the Hon'ble Supreme Court while dealing with the issue of applicability of the provisions of section 103, Cr.P.C, has observed as follows:- "As regards the above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirement of section 103, Cr.P.C. Namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. In this regard, it will suffice to refer to a recent Judgment of this Court in the case of Mushtaq Ahmed v. The State, PLD 1996 SC 574. In. The case in hand SIP Muhammad Rafique has not been able to give any cogent explanation as to why he was unable to secure two Mashirs from the public."
6. As per the averments of FIR, the Heroin powder was recovered from two envelopes but same was not weighed on the spot and complainant presumed its total weight to be 1300 grams tentatively.
Perusal of the Chemical Examiner's report dated 02.02.2015, reflects that Chemical Examiner has also not weighed both envelopes containing Heroin powder separately mentioning their net weight, but he mentioned total weight of Heroin powder lying in two envelopes as 1300 grams, though Chemical Examiner was duty bound to mention net weight of Heroin powder lying in two envelopes separately after deducting weight of both envelopes, but he has not discharged his duty properly, hence after deducting the weight of both envelopes, net weight of recovered Heroin powder may become more or less than 1000 grams.
7. Indeed, co-accused Syed Zameer Hussain, brother of present applicant had filed Cr. M. A.
No,436/2014 against complainant and other police officials, which was disposed of vide order dated 11.03.2014 in view of the undertaking given by police officials including SHO P.S 'B' Section, Khairpur that neither they have caused any kind of harassment to applicant nor intend to do so in future and Court of learned 1st Additional Sessions Judge, Khairpur disposed of such application with direction to the police officials not to cause any kind of harassment to applicant. Moreover, co-accused Zubair was granted bail by the High Court vide order dated 03.08.2015 in criminal bail application No,S-193 of 2015. Furthermore, one Ghulam Qadir, who is influential person of the locality, filed Criminal Complaint No,29/2014 against Choudhary Asghar and 7 others including co- accused Zameer Hussain, who had purchased one plot from Choudhary Asghar, under sections 3, 4 and 7 of Illegal Dispossession Act, 2005, before the Court of 1st Additional Sessions Judge, Khairpur.
8. It is significant to refer that all the three male members, who are real brothers have been involved in instant FIR and their entire family comprising of women folk and children are suffering for their butter and bread. Prosecution has failed to place any criminal record of applicant and his two brothers and admittedly no criminal case was lodged against them prior to instant case.
Applicant is a regular student of BS-II year 2015 of Department of Public Administration, Shah Abdul Latif University, Khairpur, and such character certificate has been issued by the Chairman, Department of Public Administration in favour of applicant, which is available on page No,51 of the file. Complainant though registered joint FIR No,34 of 2015 against all the accused, but he again lodged second FIR No,36 of 2015 against present applicant for the same recovered narcotics, and learned APG could not satisfy this Court as to why second FIR was lodged against present applicant regarding same narcotics, which otherwise reflects the personal grudge 'of complainant.
It is well settled that any iota of doubt even at bail stage shall be counted in the account of accused and Court should not hesitate to extend such benefit irrespective of the sensitivity of the offence. After conclusion of the investigation, Challan has already been submitted and applicant is no more' required further hence further detention of applicant will not serve any useful purpose and even there is no apprehension of tampering with prosecution evidence as PWs are police officials.
9. Considering the above circumstance, I am of the view that applicant has succeeded to make out a case for grant of post arrest bail on the ground of further enquiry as envisaged in section 497(2), Cr.P.C. As well as on the rule of consistency. Consequently, applicant is admitted to bail subject to his furnishing a solvent surety in the sum of Rs,100,000/- and P.R. Bond in the like amount to the satisfaction of the learned trial Court.
10. The observations made above are tentative in nature and learned trial Court shall decide the case strictly on its merits.