O R D E R S H E E T

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Crl. B.A No.S-197 of 2012

Date	Order with signature of the Judge

1. For orders on office objection flag ‘A’

2. For Hearing

30.7.2012

Mr. Syed Sikandar Ali Shah, advocate for applicant.

Mr. Abdul Rasheed Soomro, State counsel.

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Naimatullah Phulpoto, J:- Applicant/Accused Allah Dino seeks bail in crime No.55/2012 registered against him at Police Station A/Section, Kandhkot under section 9 (c) of Control of Narcotic Substances, Act 1997.

2. Brief facts of the prosecution case as disclosed in the FIR are that on 05.3.2012 ASI Hairdin of PS B/Section Kandhkot lodged FIR against applicant/ accused stating therein that he along with his subordinate staff left police station for patrolling and held nakabandi at Ghouspur Nako where he received spy information that present accused was standing at Massan link road, and he was carrying Charas for selling purpose. On such information, police party proceeded to the pointed place where present applicant was found standing and was carrying plastic bag in his hand. Police caught him hold and secured plastic bag from his possession and enquired his name to which he disclosed his name as Allah Dino son of Haji Rehan by caste Umrani resident of Usta Mohammad. Plastic bag was opened, it contained pieces of charas, total weight of charas became 1100 grams. Cash of Rs.200/- was also recovered from the accused. Accused was arrested, mashirnama of arrest and recovery was prepared in presence of mashirs. Accused along with property was brought at Police Station where FIR was registered on behalf of the State under the above referred sections. Charas was sent to the Chemical Examiner. Positive report was received. On the conclusion of investigation challan was submitted against the accused.

3. Bail application on behalf of accused was moved before learned Sessions Judge/Special Judge For CNS Kashmore at Kandhkot. The same was rejected vide his order dated 19.4.2012.

4. Mr. Syed Sikandar Ali Shah, learned counsel for the applicant/accused argued that all the P.Ws are police officials and interested, case has been registered by ASI and he was not competent to register the case under the provisions of Control of Narcotic Substances Act, 1997. Complainant has himself investigated the case. Police have enmity with accused. 1100 grams charas have been recovered, being a case of border line between clause (b) and (c) of Section 9 of Control of Narcotic Substances Act, 1997 , there was delay in sending charas to the Chemical Examiner for the report, benefit of doubt shall go to the accused at bail stage. In support of the contentions, learned counsel for the applicant/ accused has relied upon the case of Mohammad Naeem v. State 2011 YLR 858.

5. Mr. Abdul Rasheed Soomro, learned State counsel conceded to the contentions raised by the learned counsel and recorded no objection.

6. I am inclined to grant bail to the applicant/accused for the reasons that investigation is complete, in this case all the P.Ws are police officials, there is no question of tempering with the evidence. No private person was made as mashir in this case. Prima facie, case of 1100 grams of charas, being of border line between clause (b) and (c) of Section 9 of Control of Narcotic Substances Act, 1997 to be determined at trial, its benefit may be extended to the accused even at bail stage particularly, in the circumstances when accused has alleged enmity with the police officials. Delay in sending the charas to the Chemical Examiner has also been admitted. Learned counsel for the applicant/accused has rightly relied upon above cited authority in which this Court has observed as under :-

“ It is settled law that at the bail stage deeper appreciation cannot be gone into, but only tentative assessment is to be made just to find out as to whether present applicant is connected with the commission of offence or not. Applying the above rule to the present case one can find that from the perusal of press cutting that the applicant was in custody of the police ever since 19-3-2010 and it further appears that he has been implicated in the present case on 22-3-2010. the above apprehension is fortified with the fact that no private witness was associated at the time of arrest of the applicant in this case though his arrest has been shown from a thickly populated are.

Even otherwise, weight of the substance is only 1100 grams and it is yet to be seen as to whether provisions of section 9-b shall be attracted or 9-c be attracted.

In case of Taj Ali Khan (supra) the learned Single Judge of Peshawar High Court observed as under:-

“Not only because the quantity of 500 grams marginally exceeds the upper limit of 1000 grams, therefore, being a border line case between clause ‘B’ and ‘C’ of section 9 and also because in the given circumstances whether maximum punishment of 14 years provided in the alternative would be awarded or not is also a point or discussion and further enquiry. Also from the record it is established that he is a previous convict or involved in the same and similar offence in the past.”

Since there is delay in sending the sample to Laboratory benefit of such delay on the part of prosecution is to be extended to the present applicant. With regard to delay in sending the sample to the Chemical Examiner, learned counsel has relied upon case of Hakeem Jamali (supra), wherein learned Single Judge of this Court while dealing with the point of delay in sending the sample has observed as under:--

“Due to delay in sending the samples to the chemical examiner by the police, a reasonable doubt has been created in favour of the accused at bail stage. Being fortified with the rules 4 and 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 and the case-law cited hereinabove, I am of the considered view that case is one of further enquiry has been made out in favour of the applicant and he is entitled for grant of bail.”

Following the above rule, and circumstances, I am of the view that it is a case of further enquiry in terms of section 497 (2), Cr.P.C., I admit the present applicant to bail on furnishing solvent surety in the sum of Rs.200,000/- (Two lacs) and execution of PR bond in the like amount to the satisfaction of trial Court.”

7. For my above stated reasons, while respectfully relying upon above cited authority and keeping in view no objection raised by learned State counsel I hold that a case for grant of bail to the applicant/accused is made out. Resultantly, applicant/accused is admitted to bail on his furnishing solvent surety in the sum of Rs.200,000/- and P.R bond in the like amount to the satisfaction of the trial Court.

8. In view of above, bail application moved on behalf of applicant/accused is disposed of accordingly.

Needless to say that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced at the time of passing final judgment.

Judge