2009 PLP 151 (MLD)

GHULAM DASTAGIR A. SHAHANI, J.

By this order, I propose to dispose of this application for bail, moved on behalf of applicant/accused Abdul Waheed son of Muhammad Umar Panhwar in Crime No.3 of 2007 P.S. Excise Dadu under section 9(c) of C.N.S. Act, 1997. Brief facts narrated in the F.I.R. are that on 25-9-2007 one Abrar Hussain Chandio, Excise Inspector/Incharge Additional Crime Circle Dadu along with Jamil Ahmed Koonharo, Incharge crime circle Dadu, Abrar Ahmed Jatoi, Excise Inspector Dadu and subordinate staff proceeded in a Government vehicle via Dadu-Larkana road for checking and prevention of narcotics. While checking at Caltex Petrol Pump near Makhdoom Bilawal, they stopped passenger coach which was going from Larkana to Dadu. They suspected a person who was sitting on a seat behind the driver having one plastic bag of blue colour. According to F.I.R. he was asked to alight from the coach, who came down with bag, first they informed him about their identity and inquired about his name and other particulars, who disclosed his name as Abdul Waheed son of Muhammad Umar Panhwar r/o Village Umar Panhwar. F.I.R. further reveals that in presence of mashirs namely Gulab Khoso and Muhammad Arshad Lashari, search was made, due to non-availability of private mashirs they opened the plastic bag and secured rods of Charas wrapped with newspaper and kali of red colour, and on counting all the rods in all were 402 and weighed at the place of wardat, which became 5 kgs. They separated and sealed one rod of 10 grams for chemical report. Remaining 401 rods of Charas weighed 4 Kgs and 990 grams separately. From further personal search as contended in the F.T.R. a cash of Rs.170 was also recovered from the front pocket of his shirt, which were taken in custody. Accused was arrested and after preparation of mashirnama challan was submitted. Bail application was filed on behalf of the applicant/accused, but the same was rejected by the learned Ist Additional Sessions Judge, Dadu on the ground that a huge quantity of Charas viz., 5 Kgs were recovered from the applicant/accused and applicant/accused failed to rope any enmity with police. Hence the present application. Heard Mr. Muhammad Azeem Panhwar, learned counsel for the applicant/accused who contended that no offence has been committed and property has been foisted upon the applicant due to enmity and all the P. Ws. are police officials. He further added that neither the number of coach/bus nor the name of driver or even the cleaner has been cited as a mashir and only one rod of 10 grams was separated and sent to the chemical examiner therefore, case of applicant/accused require further inquiry. On the other hand Mr. Mumtaz Alam Leghari, Assistant A.G. conceded to the grant of bail, on the ground that from 402 rods only one rod of alleged Charas of 19 grams was sent to the chemical examiner, which requires further inquiry. Heard learned counsel for the applicant/accused, as well as learned Assistant A.-G. and perused the material available on record. As per prosecution case, the incident occurred at Caltex Petrol Pump near Makhdoom Bilawal and found a suspicious person having a plastic bag sitting on the back side of driver seat, who was de-boarded from the bus/coach and according to police on inquiry he disclosed his name to be Abdul Waheed (the applicant), plastic shopper was secured and found 402 rods of Charas and was weighed which became 5 Kgs. Out of which only one rod of 10 grams was separated. Where private persons were available and no private person from the locality was associated as witness/mashir in the case, though provisions of section 103, Cr.P.C. would not be applicable in view of section 25 of C.N.S. Act, 1997 but still each case is to be seen on its own merits and natural circumstances. Since only one pati/rod of alleged Charas of 10 grams was separately, sent for chemical analyzer report and such report would be conclusive only to the extent of 10 grams of Charas. The question whether entire recovered substance is covered by the definition of narcotics would be properly determined at the stage of trial, including the enmity. However, at this stage, as a result of tentative assessment, prima facie applicant/accused is responsible for 10 grams, which were separated and sent for the chemical analyzer report, but no expert opinion is available regarding remaining quantity of Charas. Reliance is placed on the cases of Nadeem v. The State (2007 MLD 1092), Pervaiz Ahmed v. The State (PLD 2008 Karachi 14) and Imitaz Ali v. The State (2006 MLD 1961) respectively. In view of above facts and circumstances of the case and law relied upon cited at the bar, I find the case of applicant/accused covered by the provisions of section 497(2), Cr.P.C. Accordingly the applicant/accused is admitted on bail and be released on his furnishing solvent surety in the sum of Rs.5,00,000 (Five lac) and P.R. bond in the like amount to the satisfaction of the trial Court. A.M.R./A-110/K Bail allowed.