2011 PLP 858 (YLR)

MUHAMMAD TASNIM, J.

Through this bail application, the present applicant who is booked in Crime No.55 0f 2010 registered with Police Station 8-section Khairpur, under section 9-C of CNS Act, 1997 seeks bail after arrest. The prosecution case as set-out in the F.I.R. is that on 22-3-2010 complainant SIP Ashiq Mallah, of Police Station B-Section. Khairpur while on patrol duty along, with his subordinate staff 0PArehended present applicant from link road leading from Luckman railway crossing, to Thehri railway crossing and recovered three pieces of Charas total weighing 1100 grams. Learned counsel for the applicant has submitted that at the time of arrest of applicant as per F.I.R. same was affected from a thickly populated area but no private person was associated. He also says that there is delay of nine days in sending the sample to the Laboratory. His further contention is that the police might have tampered the substance which has seriously prejudiced the case of the applicant. He further says that recovery as per F.I.R. is about 1100 grams of charas and this case is of borderline to attract the provisions of sections 9-b and 9-c of CNS Act, 1997 and on this ground alone applicant is entitled to bail. He further says that as per F.I.R. three pieces of charas were allegedly recovered from the applicant all three pieces were not weight individually but the police has shown collective weight of all three pieces. Learned counsel says that in the similar circumstances where the police has shown total weight of different pieces applicants have been invariably admitted to bail. Learned counsel further places on record press clipping of 'Daily Kawish' dated 19-3-2010 wherein it has been shown that the police has arrested applicant on 19-3-2010. Learned counsel says that no recovery whatsoever was effected from the applicant but the police has foisted the same upon the applicant. He further says that in this case arrest has been shown on 22-3-2010 whereas applicant was in custody of the police ever since 19-3-2010. Learned counsel says that after arrest on 19-3-2010 no case whatever was registered by the police against the applicant except present one. In support, of his contentions learned counsel has relied upon cases of Hakeem Jamali v. The State (2009 PCr.LJ 695) and Taj Ali Khan v. The State (2004 YLR 439). On the other hand, learned D.P.-G. has opposed the grant of bail to the applicant and argued that from the reading, of press cutting it appears that the present applicant is habitual offender that is why his arrest was affected on 19-3-2010 by the police. When question was put to learned D.P.-G. as to whether he was booked in some crime or he was challaned his answer was in negative. He further says that weighing of three pieces separately or collectively makes no difference and applicant cannot be granted bail on this ground alone. However, learned D.P.-G. could not justify delay in sending the sample to the Laboratory. I have heard learned counsel for the parties and have gone through the record and case-law cited at the bar. It is settled law that at the bail stage deeper appreciation cannot be gone into, but only tentative assessment is to be made just to find out as to whether present applicant is connected with the commission of offence or not. Applying the above rule to the present case one can find that from the perusal of press cutting that the applicant was in custody of the police ever since 19-3-2010 and it further appears that he has been implicated in the present case on. 22-3-2010. The above apprehension is fortified with the fact that no private witness was associated at the time of arrest of the applicant in this case though his arrest has been shown from a thickly populated area. Even otherwise, weight of the substance is only 1100 grams and it is yet to be seen as to whether provisions of section 9-b shall be attracted or 9-c shall be attracted. In case of Taj Ali Khan(supra) the learned Single Judge of Peshawar High Court observed as under:-- "Not only because the quantity of 500 grams marginally exceeds the upper limit of 1000 grams, therefore, being a border line case between clause `B' and `C' of section 9 and also because in the given circumstances whether maximum punishment of 14 years provided in the alternative would be awarded or not is also a point or discussion and further enquiry. Also from the record it is established that he is a previous convict or involved in the same and similar offence in the past." Since there is delay in sending the sample to Laboratory benefit of such delay on the part of prosecution is to be extended to the present applicant. With regard to delay in sending the ample to the Chemical Examiner, learned counsel has relied upon case of Hakeem Jamali (supra), wherein learned Single Judge of this Court while dealing with the point of delay in sending the sample has observed as under:-- "Due to delay in sending the samples to the chemical examiner by the police, a reasonable doubt has been created in favour of the accused at bail stage. Being fortified with the rules 4 and 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 and the case-law cited hereinabove, I am of the considered view that case is one of further enquiry has been made out in favour of the applicant and he is entitled for grant of bail." Following the above rule, and circumstances of the case, I am of the view that it is a case of further enquiry in terms of section 497(2), Cr.P.C., I admit the present applicant to bail on furnishing solvent surety in the sum of Rs.200,000 (Two lacs) and execution of PR bond in the like amount to the satisfaction of trial Court. In view of above, bail application is disposed of accordingly. H.B.T./N-48/K Bail granted.