1. MUHAMMAD ROSHAN ESSANI, J.- The facts leading to present application for bail are that applicant/accused Iqbal Yousaf is facing trial under Art. 3/4, Prohibition (Enforcement of Hadd)
2. Order, 1979 in Sessions Case No. 1365/1997 before learned Sessions Judge Karachi South, arising out of F.I.R. No. 237/1997,. Dated 25.11.1997 of Police Station Preedy Karachi South.
3. The brief facts of the prosecution case as disclosed in the FIR lodged by Sub- Inspector Arshad Hussain Janjua of Crime Branch are reproduced herein below: "At this time a statement prepared under Section 154 Cr.P.C, and sent by S.I. Arshad Hussain Janjua of Crime Branch was received. The contents of it are as under: "Today, I, S.I. Arshad Hussain Janjua posted at Crime Branch alongwith staff namely P.C. Azram 1287 was busy in patrolling, search of criminals and prevention of crime within the jurisdiction of P.S. Preedy. During search, at 4.15 p.m. On information and pointation of a special spy one accused whose name was known to be Iqbal Yousaf son of Haji Muhammad Yousaf was arrested at Magazine line near Hashimi Centre, electronic market near cafe Mirza, in presence of witnesses Javed Ahmad son of Sardar Ali and P.C. Azram B-1287, On search of his black coloured had bag, one white plastic bag containing four small balls wrapped in black tape were found. Also one white plastic bag wrapped in black tape was found. On opening and checking of four balls and plastic bag, contraband drug heroine weighing of 506 grams was recovered. The heroine thus recovered was sealed on the spot and taken into police custody for action and accused Iqbal Yousaf s/o Haji Muhammad Yousuf was arrested on the spot for committing offence under Arts. 3/4 Prohibition (Enforcement of Hadd) Order, 1979. As the are of incident is within your jurisdiction hence above statement is sent to you through P.C. Waseem Latif 5299 for registering FIR. A case against the above accused be registered and copy of FIR and original statement may be sent to me. Presently the accused is in my custody. I am busy in investigation."
4. Applicant/accused applied for bail before the trial Court but the same was refused by impugned order dated 26.2.1998.
5. Mr. Nuruddin Sarki learned counsel for the applicant/accused has contended that the FIR is completely silent about weighing of the recovered material which makes the police claim of recovery 506 grams heroin powder suspicious; that as per the FIR recovered powder was sealed on the spot which shows that no sample was taken for laboratory' test; that the alleged incident occurred in very busy area like electronic market at the busiest time, even then only to witnesses are mentioned, one of them being police constable while the other is a known stock witness appearing in many cases as a prosecution witness; that the applicant/accused is not a previous convict and he is not likely to abscond. Moreover he has been falsely implicated in a concocted case. It is therefore, urged that the applicant/accused is entitled to bail. In support of bail application, affidavits of one Musmat Halima Bibi and Joseph D' Souza a neighbourer have been filed wherein they have stated that on 24.11.1997 at about 3.00 p.m. To mobiles of crime branch came at the house of applicant/accused wherefrom 10/12 police men got down and they entered in the house of applicant/accused and took him away to an unknown place.
6. Mr. Ashique Hussain Mehar learned counsel for the State has conceded to the grant of bail and he has further stated that so far property is not sent to chemical analyser for laboratory test.
7. I have considered the arguments of Mr. Nuruddin Sarki learned counsel for the applicant/accused and Mr. Ashique Hussain Mehar learned counsel for the State and with their assistance also persued the police record.
8. It is an admitted position that the property i.e. Alleged heroin powder was not weighed nor any sample was taken for the purpose of laboratory test. The FIR, challan memo, of recovery and entire police record is silent that the heroin so recovered was ever sent to Chemical Analyser for test and report. Allegedly applicant/accused was arrested during day time from a thickly populated area but not a single independent private person of the locality has been made witness of arrest and recovery though according to prosecution case complainant had advance spy information.
9. Learned State counsel has also conceded to the grant of bail to the applicant/accused.
10. The upshot of the above discussion is that the case of applicant/accused necessitates further enquiry as contemplated under section 497(2) Cr.P.C, and he is entitled to bail. By short order dated 30.3.1998 I had granted bail to the applicant/accused and these are the reasons for the said short order.
11. Before parting with this matter, I would like to make it clear that observations made hereinabove, are of tentative nature and they will not in any manner influence the trial Court while finally adjudicating the case. The trial Court will be at liberty to reach its on independent finding after