2003 PLP 1589 (MLD)

Lalchand Mamtani for Applicant. Mohsin for the State. Date of hearing: 31st March, 2003. The prosecution case is that a Mobile Party of Police Station New Karachi led by A.S.-I. Muhammad Arif Abbasi went at Kachi Abadi, Sector 11-D and found three persons available there in suspicious position. On noticing police one of them threw plastic bag available with him and managed to escape from the scene. The remaining two were, however, intercepted by the police and narcotics substance was recovered from their possession. One of them is said to have introduced himself as Ikram son of Shahabuddin from whose possession 100 grams heroin and 200 grams Charas is said to have been recovered under the cover of Mashirnama. The other disclosing his name as Imran was found possession 200 grams Charas. It was disclosed to the police that person having thrown the bag was Zafar son of Farhat Hussain. That bag too was found containing the narcotics substance. The captives were then brought at police station where A.S.-I. Muhammad Arif Abbasi registered the F.I.R. under Articles 3/4 (Enforcement of Hadd) Order 1979. After investigation, the case was submitted for trial to the Sessions Court. Bail plea of the applicant was dismissed by First Additional Sessions Judge Karachi (Central). The stuff seized is the narcotics substance and the case is to be tried under CNS Act. The question of jurisdiction in the case like present one was considered by the Honourable Apex Court and legal position was settled through pronouncement in Collector of Customs v. Nasim Amir Butt and others (2001 SCMR 1083). The question of recovery by A.S.-I. was considered by the Division Bench of this Court of which I was also member, in Criminal Bail Application No.886, of 2002. Waqar Khan v. The State (2003 PCr.LJ 789). It was held that although provisions of CNS Act authorise the Sub-Inspector to effect the seizure but the recovery made by A.S.-I. is curable irregularity. For the requirement of rank only the evidentiary value of the recovery will not reduce to nullity nor the jurisdiction of Court to try the accused will be affected due to such an irregularity. After dealing with the question of jurisdiction, I consider the merits of the case. No doubt, the allegation against the applicant is that of possession and sale of narcotics substance i.e. 100 grams heroin anti 200 grams Charas, but the seizure memo as well as F.I.R. do no indicate the drawing of representative sample. Although the report of Chemical Examiner in respect of 10 grams Charas and 1 gram heroin but that by itself is not connecting the samples with the stuff allegedly seizes from the applicant. It is yet to be established during trial that the stuff got examined chemically was in fact drawn from the stuff allegedly seized from the applicant. This is to be established beside the proof or recovery of stuff from the applicant. In the circumstances, the applicant has a case of bail. Bail granted. He shall be released on furnishing surety in the sum or Rs.1,00,000 and P.R. bond in the like amount to the satisfaction of the trial Court. H.B.T./I-84/K Bail granted.