2011 PLP 131 (MLD)

MUHAMMAD SAFDAR KHAN SIKANDRI, J.

The jurisdiction of this Court has been invoked by the petitioner for releasing him on bail in case F.I.R. No. 136 dated 10-7-2010 registered under section 9 Control of Narcotic Substances Act read with section 188, P.P.C. at Police Station Mulazai, District Tank.

2. As per allegations of Haroon-ur-Rashid S.H.O. reflected in the F.I.R, he along with his other police contingents were proceedings towards village Nandoor. One person, who later on disclosed his name as Mehr Ali son of Jan Muhammad riding on Honda Motorcycle 125/CC, was stopped and searched and upon his personal search, from his possession, a .30 bore Pistol bearing No.A-7492 with cartridges and licence copy, chars weighing 2000 grams and opium weighing 300 grams were recovered. He was arrested and all the contraband articles were taken into possession through a memo and as such the present occurrence referred to above.

3. Learned counsel for the petitioner contended that the accused-petitioner was apprehended in the way while riding on motorcycle and he has falsely been involved in this case as there is no independent witness to the occurrence except the police officials, who are interested in the prosecution of the accused-petitioner. He further urged that nothing has been recovered in the shape of narcotics because no F.S.L report is appearing on the record which could show that the alleged contraband mentioned in the F.I.R. was actually chars and opium or anything else and this factum alone will bring the case under the ambit of further inquiry as envisaged under subsection (2) of section 497 Cr.P.C. He further urged that the entire investigation has been completed and challan has, already been submitted in the trial Court but the prosecution is not able to bring on record any result which shows mala fide on the part of prosecution. He urged that the accused-petitioner is not previously convicted in such-like cases and not being a habitual peddler is entitled to bail in view of an authority of this Court in the case of Shafiullah v. The State delivered by a Bench comprising Mr. Justice Attaullah Khan wherein the accused was released on bail on seizure of contraband wherein 5000 grams was recovered. Similarly, he referred to an authority of D.B of Karachi jurisdiction reported in 2007 MLD 1092 where bail was granted to accused in a greater quantity of narcotics.

4. On the contrary, learned Deputy Advocate-General controverted the arguments of counsel for the petitioner and contended that the recovery of 2300 grams of narcotics from possession of the petitioner will bring the case under the prohibitory clause of section 497, Cr.P.C. and at present he is not entitled to bail.

5. I gave my considered thought to the above arguments and thoroughly perused the materials on record.

6. So far as the contention of counsel for the accused-petitioner about involvement of the accused in this case is concerned, no doubt that there is no independent witness to the occurrence as the occurrence has taken place on the way and not in a busy vicinity and in that regard the statements of police officials being credible or otherwise will be scrutinized by the trial Court as yet the statement of accused-petitioner has not been recorded, therefore, this factum will bring the case under the ambit of further inquiry. Secondly, the occurrence has taken place on 10-7-2010 and the prosecution is facing failure while procuring the F.S.L report on the record within thirteen days till today, therefore, it is one of the factors which entitle the accused-petitioner for concession of bail as at present it is not certain that the material taken from possession of the accused-petitioner is narcotics or anything else which, in view of the judgment of this Court referred to above, entitles the accused petitioner for bail. Besides this, it is held in 2007 MLD Karachi 1092 that keeping in view the quantity of narcotics which was recovered from the accused the prosecution will establish the case on the basis of F.S.L. report which will clarify that the entire quantity of specific substance i.e. chars and opium for which present accused has been charged and this factum will require further verification and the prosecution would show that the samples were actually taken from the contraband material taken from the possession of the accused, therefore, in view of such like circumstances, the, case against the petitioner will require further probe under the contemplation of subsection (2) of section 497 Cr.P.C. and hence, this petition is accepted and the accused-petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs.2,00,000 (Rupees two lacs) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate, Tank. A.R.K./309/P Petition accepted.