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Criminal Bail Application No. 29 of 1985, decided on 3rd June, 1985.

‑‑‑S. 497‑‑Customs Act (IV of 1969), Ss. 185(f) & 156(1)(89)‑‑Bail, grant of‑‑Contraband Charas allegedly recovered from a locked room belonging to petitioner's father‑‑Petitioner not present at spot and alleged recovery effected in presence of Mashirs belonging to a different locality and accompanying raiding‑party to witness such recovery‑‑No material available with prosecution to show that any attempt made to smuggle such Charas out of country‑‑Petitioner in judicial lock‑up for over 11 months while investigation over and interim Challan presented in trial Court‑‑Grounds on which bail plea urged, held, required further inquiry‑‑Petitioner allowed bail, in circumstances.

Agha Imdad Ally for Applicant.

Jalaluddin Balouch for the State.

Applicant is facing trial for offence under section 156(1)(8)(89) of the Customs Act, 1969. Prosecution case is that 211 bundles containing 3006 Kilogram of Charas was recovered from a room in Yaqoob Goth on 15‑4‑1985 at 4‑00 p.m. Seven accused are named in F.I.R. and only applicant Khuda Bux has been arrested and is in custody. He was arrested on 15‑4‑1985. It is alleged against him that he is son of Usman who is owner of the premises from where Charas was recovered and further that he has a fodder shop right opposite the room from where recovery was made. Bail plea is urged on several grounds. Firstly that prosecution does not have enough material to connect the applicant with the crime alleged against him. It is submitted that Usman has many sons and all of them have been implicated. Mr. Agha stated at bar that Usman himself died a couple of days ago. It is further submitted by Mr. Agha that at the time of alleged recovery applicant was not present anywhere near the spot. The first document prepared by prosecution was seizure memo. and it is not mentioned therein that applicant was present at that time' in the fodder shop which is right opposite the place of recovery. Secondly it is urged that at the relevant time the room in question was locked and the lock was broken and opened hence exclusive possession could not be attributed to the applicant. If prosecution ascribed possession to the applicant on the basis of the fact that room in question belonged to his father Usman then in that case plea can be taken on behalf of the applicant that applicant was not the only heir‑apparent to deceased Usman but Usman has other sons as well and in such circumstances it could be said that there would be joint ownership but not joint possession which again has to be proved by the prosecution separately and in a convincing manner. It was further argued that even on the question of joint possession applicant is entitled to bail. Thirdly it was urged that at the most the facts of the prosecution case would show that offence falls under the provisions of Abkari Act on account of possession of Charas and there is no material available with prosecution to show that any attempt was made to smuggle it out of the country. Fourthly it was submitted that prosecution has used Mashirs who are not from the locality as such provisions of section 103, Cr.P.C. have been contravened. It was further submitted that according to the prosecution both Mashirs had accompanied the raiding‑party from Karachi anti admittedly the place of raid is away from city and is on near Super A Highway. In any case it is stated that applicant was arrested on 15‑4‑1985 and right now he is in judicial custody and investigation is over and interim Challan has been presented. The grounds on which bail plea is urged require further enquiry.

For the facts and reasons stated above, I admit applicant to bail in the sum of Rs.1,00,000 with one surety and P.R. in the like amount to the satisfaction of the trial Court.

S. G. D. Bail allowed.

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