RAZA ALI KHAN, J.---The captioned revision petition has been filed against the judgment and order passed by the learned Additional Sessions Judge, Muzaffarabad dated 07.05.2018, whereby the bail application of the accused-petitioner has been rejected.
2. Precise facts of the case are that Muhammad Ashraf Khan, Choki Officer Brarkot, made a report on 09.03.2018, at Sadar Police Station Muzaffarabad, stating therein that the complainant along with other police officials were patrolling in the area of Tami, Gogra, Sarian etc. Meantime, the informer reported that famous drug seller Riasat alias Sati son of Dost Muhammad Khan caste Pathan resident of Chellah Bandi, having huge quantity of narcotic in his vehicle No,IDB-480 is waiting for the customers. On this information at 1:30 p.m. they reached at Upper Lohar Gali Road, whereby they found the alleged car. The accused tried to fly away but was arrested. During search 1200 gram chars has been recovered from the accused. On this report FIR No,38/2018, in the offences under Section 9(c) ANSA, 1997, has been registered at Sadar Police Station Muzaffarabad on 09.03.2018. After arrest the accused-petitioner, herein, moved an application before the learned Additional Sessions Judge Muzaffarabad for his release on bail on 04.05.2018. The learned Additional Sessions Judge after hearing the learned counsel for the parties through judgment and order dated 7.05.2018, rejected the application, hence, the captioned revision petition.
3. Raja Aftab Ahmed, Advocate appearing on behalf of accused-petitioner contended that the petitioner has been involved in a false and concocted case and in fact he has not committed any offence nor alleged charas has been recovered from him. The learned Advocate further argued that recovery allegedly has been made from thickly populated area, however, no private person has been associated as witness, hence, the police has violated the requirement of Section 103, Cr.P.C. 1898. The learned counsel pressed into service that the police after investigation has submitted challan before the competent Court, hence the person of accused is no more required to the police for further investigation, therefore, the petitioner is entitled to concession of bail. The learned, counsel contended that the statements of Muhammad Ashraf Khan, complainant and Shoukat Ali, DFC have been recorded which are contradictory and create a doubt on the prosecution story and the benefit of doubt can be extended in favour of accused-petitioner even at bail stage. The learned counsel in support of his version relied upon case titled Ghulam Murtaza and another v. The State (PLD 2009 Lah. 362) and an unreported order of this Court passed in Revision Petition No,03/2018 titled Javed Afridi v. The State, decided on 02.02.2018.
4. On the Other hand the learned Additional Advocate General, has argued that the petitioner is involved in offence which falls within prohibitory clause of Section 497, Cr.P.C., hence, is not entitled to the concession of bail. He further argued that no opinion can be formed on the basis of statements of prosecution witness, so recorded, at this stage because it will prejudice the case of either party at- trial. The learned Advocate submitted that the accused-petitioner is not entitled to concession of bail because the offences with which he has been charged are non-bailable. He defended the impugned order on all counts and submitted for dismissal of revision petition. He referred to and relied upon the following case law:--
(i) Mubarak Ali v. The State (PLD 2009 Lah. 632).
(ii) Muhammad Ashraf v. The State (2000 PCr.LJ 1160).
5. I have heard the learned counsel for the parties and gone through the record of the case.
6. The grant and refusal of bail is discretionary with the Court, however, in view of settled law, discretion can be exercised keeping in view overall circumstances of the case, in judicious manner for the ends of justice. The bail application cannot be decided in routine rather to form an opinion, the Court has to make tentative assessment of contents of FIR, statements recorded under Section 161, Cr.P.C., the Court statements so recorded and other material collected by the police, however, deeper appreciation of evidence at bail stage is not warranted by law because it may prejudice the case of either, party at trial.
7. In the case in hand,. allegedly 1200 grams chars has been recovered from the accused- petitioner at day time when he was present at Upper Lohar Gali Road in his vehicle. The police has not associated any private person as witness of recovery of alleged charas nor made an effort to involve any private person to act as a witness to maintain transparency of alleged recovery even not furnished any explanation for not associating any private person as witness of alleged recovery, as was required by Section 103, Cr.P.C. which makes the story of prosecution doubtful and the law is well settled that benefit of doubt can be extended in favour of accused even at bail stage.
8. The purpose to empower the investigating agency to arrest an accused and keep him in custody is to provide the investigating agency reasonable opportunity to investigate into the matter in a free and fair atmosphere because if after investigation any flaw is found the benefit of same shall be extended in favour of accused and to handicap from repetition of offence and to put influence on prosecution witnesses and tamper record but if the person of an accused is no more required to the police for further investigation and there is no chance for absconsion of the accused and influenced on prosecution witnesses, he cannot be refused to release on bail because it will tantamount to punish him for an offence without regular trial and if ultimately he is acquitted of the charge then there will be no compensation for curtailment of his liberty. The accused petitioner is behind bars for two months and police has submitted challan and the accused-petitioner is facing trial before the Court of competent jurisdiction, hence, is no more required for further investigation to the investigating agency, so in my considered view he is entitled to concession of bail.
9. It is pertinent to mention here that allegedly 1200 gram chars has been recovered from the accused-petitioner. As per dictum of the superior Courts, in the case where recovery of substance does not exceed the limits of 1500 grams, the case being of borderline between the Clauses (b) and (c) of Section 9 of CNSA, 1997, the accused-petitioner is entitled to bail. My this view lends support from case titled Ayaz v. The State (2011 PCr.L.J 177). The relevant observation is recorded as under:-- "It has been consistent view of the superior Courts that in cases where recovery of, substance does not exceed the limit between 900 to 1500 grams it has been held by the superior Courts that the case being of borderline between Clauses (b) and (c) of Section 9 of Control of Narcotic Substances Act, 1997 and invariably in all cases applicants have been admitted to bail."
10. In this case challan has been submitted before the Court of competent jurisdiction and statements of two prosecution witnesses have been recorded. Though this Court cannot express itself about the weight of those statements because it may prejudice the case of either party at F trial however, if after making tentative assessment of the witnesses so recorded, some contradictions are found, then the benefit same can be extended in favour of the accused. Prima facie there are contradictions in the statements of prosecution witnesses so recorded, hence, on this ground too, the accused is entitled to bail because as per trend of cross-examination made on prosecution witnesses the stand of the accused that in fact no recovery has been made from him rather he has been involved in a false case, cannot be declined at this stage. The observations recorded by this. Court in this order shall not affect the final conclusion of the trial.
In the light of what has been stated above, the accused petitioner is released on bail, provided he furnishes bail bond in the sum of Rs,500,000/- as well as personal bond in the like amount to the satisfaction of any Magistrate 1st Class Muzaffarabad, if is not required in any other case.