2012 PLP 2684 (YLR)

SADIQ HUSSAIN BHATTI, J.

Applicant Tarique alias Tari is booked in Crime No.302 of 2012, registered at Police Station Town Mirpurkhas, under section 9(c) of Control of Narcotic Substances Act, 1997. The brief facts of the prosecution case as disclosed in the F.I.R. are that on 19-12-2011 at 1015 hours, the present applicant along with co-accused was arrested and from his possession 1010 grams of charas and two currency notes of Rs.100 and Rs.20 were recovered, out of which 10 grams were separated for chemical examination. Police prepared such mashir-nama at the spot in presence of mashirs and then brought the accused and case property at Police Station and lodged F.I.R. It is contended by learned counsel for the applicant that applicant is innocent and has been falsely implicated in the case in hand. Learned counsel contended that as per F.I.R., the police had prior information that two persons are selling charas at the pointed place but in spite of that they did not associate any private person to act as mashir though the incident had occurred at a thickly-populated area. Counsel for the applicant contended that since the accused were possessing narcotics separately therefore, there should have been two F.I.Rs. hence the instant F.I.R. has been lodged illegally. It is next contended that there is sheer violation of section 103, Cr.P.C. as the incident occurred at broad-daytime in a thickly populated area but police malafidely did not take any private person to witness the arrest and recovery of the present applicant. In support of his contentions, learned counsel for applicant has relied upon the cases

1. Muhammad Ali v. The State (2011 MLD 1555),

2. Arab v. The State (2011 YLR 1699),

3. Naeem v. The State (2011 YLR 858),

4. Nasir Khan Afridi v. The State (2011 YLR 2316),

5. Bakhtijan v. The State (2011 YLR 134),

6. Bahawal alias Naang v. The State (2011 PCr.LJ 1200),

7. Muhammad Asif v. State and another (PLJ 2012 Cr.C. (Lahore) 174 (DB) and

8. Khuda Bux v. The State (2010 SCMR 1160). On the other hand, learned D.P.G. for the State has vehemently opposed the grant of bail on the ground that applicant was arrested at spot along with co-accused and from his personal search a huge quantity of charas i.e. 1010 was recovered. No enmity has been stated by the present applicant against police. He further contended that section 103 is excluded in the cases of narcotics. I have heard learned counsel for applicant, learned D.P.G. for the State and perused the material available on record with their assistance. The incident is alleged to have been taken place at 11-00 a.m. in a thickly populated area and police had prior information that two persons are selling narcotics but they did not care to associate any private person to act as mashir of recovery. Admittedly, two patties of charas were recovered from the present applicant and police took out only 10 grams from one patti for chemical examination but did not take more sample from other patti. In the case-law reported in 2011 MLD 1555, it has been held that 4 Kgs of narcotics was recovered from the accused but only one kilogram was sent for chemical examination therefore, bail was granted in that case. In another case-law, reported in 2010 SCMR 1160, the Apex Court admitted the accused on bail on the ground that six pieces of narcotics were recovered from the accused and only two pieces weighing about 50 grams were forwarded for chemical examination out of 1300 grams which prima facie did not appear either to be random or representative sample. In the case in hand, police sent the narcotics on 25-12-2011 after the delay of about six days for which no plausible explanation has been furnished by the prosecution. In view of what has been discussed above, a prima facie case for grant of bail is made out. Accordingly, the applicant/ accused is granted bail subject to furnishing solvent surety in the sum of Rs.100,000 (One lac) and P.R. Bond in the like amount to the satisfaction of the trial Court. MWA/T-8/K Bail granted.