2007 PLP 836 (YLR)

DOST MUHAMMAD KHAN, J.

Petitioner seeks bail in case F.I.R. No.121 dated 1-10-2006 registered by Police Station Railway Peshawar Cantt. for crime under section 9(C) CNS Act. Arguments heard record perused.

2. Precisely, the-facts of the case are that on 1-10-2006 at 2300 hrs, the petitioner was found on the railway plat-form, Nowshera Railway Station. He was carrying a plastic shopper and on search, it contained maize flour but underneath 4 Kg. Charas powder "Garda" were recovered and taken into possession. Samples albeit were taken from the bulk for laboratory test but after the expiry of more than two months the report has not been received and the learned Deputy Attorney-General could not point out as to where it is lying by now and whether the report has been rendered in positive or negative.

3. Learned counsel for the petitioner heavily relied on the judgment of this Court dated 7-4-2005 in the case of Muhammad Mushtaq, where not only quantity recovered of Charas was almost the same but the kind as well. In the said judgment, it has been held that Charas powder is subjected to baking/chemical process whereafter its weight is considerably reduced, therefore, maximum punishment provided in Clause-C cannot be awarded because of the reduction in the quantity as a result of chemical process. Moreover, in the said judgment reliance has been placed on a similar case decided by this Court vide Cr. M. 380/03 dated 30-5-2003 titled "Hassan Zari v. The State" Additionally, the learned counsel while relying on the judgment of this Court in Nasrullah's case (PLD 2001 Peshawar 152) argued that an A.S.-I. has been held not Authorized Officer to effect arrest, seize or take into possession and investigate cases under the CNS Act. .

4. To the contrary, learned Deputy Attorney-General vehemently opposed the grant of bail and countering the last objection of the .learned counsel for petitioner referred to Muhammad Hanif's case (2003 SCMR 1237) wherein the Honourable Supreme Court has held that investigation, seizure and arrest made by an A.S.-I. would amount to an irregularity curable under section 537, Cr.P.C. unless it is shown that prejudice has been caused to the accused. He further added that accused was arrested red handed and at this stage deep assessment shall not be made of the materials on record.

5. On Court query, the learned counsel for petitioner stated at the bar that the petitioner is neither a previous convict nor has been booked for similar offences in the past. This being the factual position remaining un-controverted and when this Court in the case of Muhammad Mushtaq, cited above, has granted bail almost on same and similar grounds and in similar circumstances then, for taking a different view in the present case, there must be some exceptional grounds which are not available rather the present case is placed on better pedestal because the laboratory test report is not available and no reason has been shown for the omission, therefore, a question arises as to whether the stuff recovered was narcotic or it was otherwise and of the standard and quality. This additional ground must go in favour of the accused. For the above reasons, this petition is allowed and the petitioner is granted bail in the sum of Rs.2,00,000 (rupees two lac) with two reliable sureties each in the like, amount to the satisfaction of Illaqa Magistrate. Needless to remark that the bail granting order is tentative and the trial Court shall decide the case on merits un influenced by the same. H.B.T./44/P Bail granted.