2018 PLP 123 (YLRN)

OMAR SIAL, J.

The Applicant has sought post arrest bail in Crime No.18/2017 registered at Police Station New Jatoi, under section 9(c) of the Control of Narcotic Substances Act, 1997.

2. The brief facts of the prosecution case are that on 19-1-2017 at about 1700 hours Inspector Habibullah Mari lodged an FIR bearing No.18/2017 on behalf of the State. He stated in the said FIR that a police party led by him was on patrol duty when he received information that the Applicant is openly selling narcotics (charas) at the bridge of Deparja-shakh. The police party reached the spot and apprehended the Applicant. Upon search, black shopping bag was recovered from the Applicant which contained ten pieces of charas. When weighed, the gross weight of the charas was 3150 grams. The entire seizure was sealed on the spot and the Applicant was arrested. The FIR was lodged.

3. I have heard the learned counsel for the Applicant as well as the learned DPG and have also scanned the available record with their able assistance. My observations are as follows. i. The learned counsel for the Applicant argued that the police with mala fide intention has lodged false cases of section 9(c) CNS Act 1997 against three members of the same family on the same date in P.S. New Jatoi, P.S. Moro and Police Station, Korai with a difference of half an hour between the respective FIRs. He further argued that the actual fact is that all three members were arrested from their homes along and their motorcycles were also seized. This assertion of the learned counsel needs to be determined after evidence is examined in this case in trial. ii. The learned counsel has argued that no private witness has been cited by the prosecution and hence a violation of section 103 Cr.P.C. is alleged. In this regard he has relied on a judgment of a learned Divisional Bench of the Lahore High Court reported at 2007 PCr.LJ

139. My observation on this issue is that section 25 of the CNS Act 1997 expressly excludes the provision of section 103, Cr.P.C. in cases falling within the ambit of the said Act. Reference can also be made to Tariq Mehmood v. The State (PLD 2009 SC 39). iii. The learned counsel has argued that the seized narcotics were sent to the chemical examiner after a delay of seven days. To support his contention he has relied upon two cases, one of this Court reported at 2014 YLR 632 and one of the Islamabad High Court reported at 2016 PCr.LJ 1315. I am however guided by the observations of the Hon'ble Supreme Court in the case Gul Alam v. The State reported at 2011 SCMR 624 (which was an appeal) in which the Hon'ble Supreme Court has held as follows: "Adverting to the objection regarding late dispatch, it may be noted that rules 4 and 5 of the Control of Narcotic Substances (Government Analysts), Rules, 2001, placed no bar on the Investigation Officer to send the samples beyond seventy two hours of the seizure, receive the F.S.L. report after fifteen days and the report so received to place before the trial Court. The very language employed in the rules and the effects of its breach provided therein have made the rules directory and not mandatory. These rules cannot control the substantive provisions of the C.N.S.A. and to be applied in such a manner that its operation shall not frustrate the purpose of the Act under which these are framed. Further, failure to follow the rules would not render the search, seizure and arrest under the C.N.S.A. an absolute nullity and non-est and make the entire prosecution case doubtful, except for the consequence provided in the rules. In directory provisions substantial compliance is sufficient and even where there is no compliance at all, the act is not invalidated by such non-compliance if the act otherwise is done in accordance with law. The delay otherwise in sending the incriminating articles to the concerned quarter for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated. There is no allegation of the petitioner that the property was tampered with during the process of transit or the remaining property was not 'chars'. It was for the petitioner to have taken such plea before the trial Court but the petitioner did not do so. However. we have examined the Chemical Analyzer's report and found that the sealed packets were received by him which contained the signatures of marginal witnesses. In the absence of any allegation of tampering with the property, the argument of learned counsel for the petitioner is not sound." A similar observation was also made in Tariq Mehmood v. The State through Deputy Attorney-General, Peshawar, (PLD 2009 SC 39). In view of the foregoing the aspect of delay in sending the narcotics and whether the same were tampered with will have to be determined after trial. iv. The learned counsel has next stated that the investigating officer and the complainant is the same and has argued that this is a ground for bail. In support of his argument he has relied on a case of a learned Divisional Bench of the Lahore High Court (2009 PCr.LJ. 1334 Lahore) and a judgment of the Peshawar High Court (2004 PCr.LJ 1224 Peshawar). I am however guided by the judgment of the Hon'ble Supreme Court in Zafar v. The State (2008 SCMR 1254). In this case it was held that: "So far as the objection of the learned counsel for the appellant that the Investigating Officer is the complainant and the witness of the occurrence and recovery, the matter has been dealt with by this Court in the case of State through Advocate-General Sindh v. Bashir and others PLD 1997 SC 408, wherein it is observed that a Police Officer is not prohibited under the law to be complainant if he is a witness to the commission of an offence and also to be an Investigating Officer, so long as it does not in any way prejudice the accused person." v. In view of above judgment, whether or not any prejudice was caused to the Applicant with the investigating officer and the complainant being the same person will have to be determined after trial. vi. The learned counsel has also argued that samples were not taken from the seized charas. In this regard I observe that the entire seizure was sent to the chemical examiner who in his report has mentioned that a sample from each piece was tested and the tested positive for charas. vii. Finally the learned counsel has argued that even if the prosecution was able to prove its case that the Applicant was in possession of 3000 grams of charas even then the offence would not fall within the prohibitory claue as the sentence provided for possessing such a quantity was six years and six months according to the judgment in the Murtaza case reported at PLD 2009 Lahore

342. In this regard I am guided by the observations of the Hon'ble Supreme Court in Socha Gul v. The State (2015 SCMR 1077) wherein it was held that the sentencing policy in the Murtaza case will not apply at the bail stage. viii. Prima facie, the Applicant was arrested with a substantial quantity of charas in his possession which was tested positive by the chemical examiner.

4. In view of the above, no case for admitting the Applicant to bail has been made out. Accordingly, this bail application is dismissed. WA/D-6/Sindh Bail refused.