2013 PLP 1241 (YLR)

NAIMATULLAH PHULPOTO, J.

Applicant/accused Asif Ali Lolai seeks bail in Crime No. 49 of 2012 registered at Police Station, Dakhan, Larkana against the accused on 3-7-2012 under section 9(c) of Control of Narcotic Substances Act, 1997.

2. Brief facts of the prosecution case as disclosed in the F.I.R are that on 3-7-2012 SIP/S.H.O. Imdad Ali Shar left Police Station along with his subordinate staff for patrolling at 1400 hours. The police party reached at link road leading to village Dari Jakhri towards Ali Hassan Kakepoto where saw three persons on road. Accused persons while seeing the police mobile tried to run away but police encircled and caught hold and enquired their names to which one person disclosed his name Asif Ali son of Manzoor Ali by caste Lolai. S.H.O. finding the accused in suspicious manner conducted his personal search in presence of mashirs PCs Ali Nawaz and Madad Ali, from the left fold of his shalwar one plastic bag was recovered. It contained charas 1250 grams. From the side pocket of the shirt of accused cash of Rs.100 was recovered. Another accused disclosed his name Naseeruddin alias Amb son of Tabib Lolai. From the left fold of his shalwar plastic bag was recovered, it contained two pieces of charas weighing 1250 grams and cash of Rs.70. On enquiry, third accused disclosed his name Ghulam Shabir son of Tabib Lolai. From right side of fold of shalwar of accused one plastic bag was recovered. It contained two pieces of charas weighing 1200 grams and cash of Rs.150. Charas recovered from the possession of present accused was sealed at the spot. Thereafter accused and property were brought at Police Station where separate F.I.Rs. against all the three accused under section 9(c) of Control of Narcotic Substances Act, 1997, were registered.

3. During investigation charas 1250 grams was sent to Chemical Examiner for report but Chemical Examiner received 1200 grams charas. Positive report was received. After usual investigation challan was submitted against the accused. Bail application was moved on behalf of present applicant before the learned Sessions Judge/Special Judge, for CNS, Shikarpur, the same was rejected vide order dated 4-9-2012.

4. Mr. Jai Jai Veshno, Mange Ram, Advocate for the applicant/accused contended that prosecution story is highly unnatural and unbelievable, 1250 grams charras have been foisted upon the accused. It is the border line case, all the P.Ws. are police officials, there is no question of tampering with the evidence, there was delay of six days in sending the charras to Chemical Examiner. There is discrepancy of 50 grams charras sent to Chemical Examiner. Lastly he argued that a relative of accused Asif Ali had filed constitutional petition against police. In support of contentions he has relied on the case of Ibrar v. State 2008 PCr.LJ 1449 and Nazam Hussain v. State 1998 PCr.LJ 164.

5. Mr. Ali Raza Pathan, learned State counsel argued that 1250 grams charas have been recovered from the possession of the accused, report of the Chemical Examiner is positive, the alleged offence falls within the prohibitory clause of section 497, Cr.P.C. He has seriously opposed the application.

6. I am inclined to grant bail to the applicant Asif Ali for the reasons that according to the prosecution case 1250 grams of charras were recovered from the possession of the accused but 1200 grams were sent to the Chemical Examiner for analysis. Discrepancy of 50 grams has not been explained by prosecution. Prima facie, yet it is to be determined at trial whether offence falls under section 9(b) or 9(c) of C.N.S. Act, 1997. This is a border line case. All the P.Ws. are police officials, there is no question of tampering with the evidence. The case was registered on 3-7-2012 while the contraband material reached in the office of Chemical Examiner Sukkur at Rohri on 9-7-2012 i.e. delay of six days which is not explained by the prosecution. One Inayatullah, the relative of applicant had also filed Constitution Petition No.783 of 2012 before this Court against police. It is argued that police lodged this case against the applicant to take revenge. In these circumstances, false implication of the applicant/accused cannot be ruled out. Despite the bar contained in section 51 of Control of Narcotic Substances Act, 1997, Court can grant bail in a case which it finds fit after taking into consideration the over all facts and circumstances of case. For the above stated reasons this is a fit case for grant of bail to accused.

7. By short order today (5-11-2012), concession of bail was granted to the applicant/accused subject to his furnishing surety in the sum of Rs.100,000 with P.R bond in the like amount to the satisfaction of the trial Court, these are the reasons for the same. 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. MWA/A-144/K Bail granted.