ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                                Cr. Bail  Appl. No.527  of 2010                                  

DATE         ORDER WITH SIGNATURE OF JUDGE

07.10.2010.

Mr. Noor ul Haq Qureshi Advocate for the applicant.

Mr. Shahid Ahmed Shaikh Assistant Prosecutor General Sindh.

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Ahmed Ali M. Shaikh J.        By this order, I intend to dispose of Cr. Bail Application No.527/2010 by which the applicant Allah Dino seeks post arrest bail in crime No.115/2010 of Police Station Sakrand for offence punishable u/s 9 (C) of Narcotics Substances Act, 1997.

2.         The applicant approached the trial Court for bail but could not succeed and his bail plea was turned down order dated 05.07.2010.

3.         The contents of prosecution case in nutshell are that on 04.06.2010, applicant was arrested by a police party headed by Inspector Habib Rehman Lashari, SHO P.S. Sakrand on spy information. The police recovered a plastic bag which contained 1400 grams chars, out of which 100 grams were sealed separately for chemical examination while remaining property was sealed independently. Mashirnama was prepared in presence of ASI Ghulam Hyder Lakho and HC Wajid Ahmed.

4.         It is inter alia contended by the learned counsel for the applicant that allegedly two pieces of chars were recovered from the applicant but prosecution is silent whether the samples were obtained from each piece. Learned counsel further contended that  D.D. entry No.21 dated 4.6.2010 reveals that accused alognwith FIR and mashirnama of arrest were handed over to the I.O. but such entry is silent with regard to contraband charas, therefore, no sanctity can be attached to the prosecution version in respect recovery of charas from the applicant. He further contended that per prosecution applicant was arrested on 4.6.2010 whereas sample was sent to the chemical examiner on 9.6.2010 through police constable and same was received by chemical examiner’s office on 10.06.2010, hence prosecution has to explain whether during such period the charas was kept in safe custody and same was not tampered with. In support of his contention, he has relied upon case of Ali Khan Kalhoro Vs. The State 2010 P Cr. L J 1087.

5.         On the other hand, learned Assistant Prosecutor General Sindh opposed the bail plea of the applicant on the ground that 1400 grams of charas was recovered from the applicant/accused, therefore, he is not entitled for concession of bail.

6.         Heard learned counsel for the parties and perused the record.

7.         Upon perusal of F.I.R., it appears that two pieces of charas were recovered from the applicant, same were weighed which became 1400 grams. However, F.I.R. and memo of recovery do not transpire whether the charas was weighed with plastic bag or independently. From the bare reading of daily diary entry No.21 which is placed on record, it appears that on same day, applicant alongwith F.I.R. and memo of recovery was handed over to SIO Mumtaz Ali Buriro but such entry is silent with regard to the contraband charas. Record reveals that sample was sent to the Chemical Examiner on 09.06.2010 through PC Ghulam Rasool Jamali and same was  received on 10.06.2010 by the office of Chemical Examiner whereas recovery was allegedly affected on 04.06.2010, such conduct on the part of Investigating Officer creates doubt about the truthfulness of the prosecution case. On one hand, applicant was allegedly arrested on 04.06.2010 with contraband charas and on same day he was handed over to the I.O. but there is mystery with regard to recovered charas, which was allegedly sent for chemical examination on 09.06.2010, and it is not mentioned whether for such period charas was kept in safe custody or same was not tampered with. The quantity of charas exceeded upper limit of one K.G which is border line case and it is yet to be determined whether case of the applicant falls under clause “B” or “C” of Control of Narcotics Substances Act, 1997.

.           For the foregoing reasons and dictum laid down in case of Taj Ali Khan Vs. The State 2004 YLR 439, I am of the considered view that case of the applicant requires further probe and he deserve the concession of bail. The applicant was admitted on bail by short order dated 06.10.2010 for the above reasons.

The Cr. Bail application stands disposed of.

                                                                                                JUDGE

A.K