2012 PLP 768 (YLR)

SHAHID ANWAR BAJWA, J.

F.I.R. No. 172 of 2011 was recorded at Police Station Mir Wah on 19-6-2011. Complainant was A.S.-I. Ghulam Rasool Shar. He stated that in a private Car he left the Police Station for patrolling along with two other police personnel and when they reached near Village Serri, one person came on road who on seeing police near to him tried to run away. He was apprehended. It is stated in the F.I.R. that besides two currency notes of Rs.50 each a plastic bag was recovered from him which contained one large piece, two small pieces and five extra small pieces of Charas which was weighed and found to be 1020 grams. In the detail of the recovery it was stated that the said Charas was sealed in presence of two police mashirs. Learned counsel for the applicant submitted that there is no independent mashir of recovery and there is no statement as to what was the quantity of the sample which was drawn. He further submitted that it is a border line case between sections 9(b) and 9(c) of the Control of Narcotic Substances Act, 1997. Learned counsel referred to page No. 39 which is a Copy of Constitutional Petition being No. 1222/2011 filed by the present applicant alleging that since he refused to accept a faisla by local influential persons, the police arrested him and wrongfully detained him thereafter he was released on payment of 50,000 with promise to pay Rs.50,000 more and since he was unable to pay he was being harassed. It was further stated that his house was raided by the police and he obtained pre-arrest bail from the Court of Sessions Judge, Noushehro Feroz and that petition is still pending. Learned counsel for the applicant submitted that since applicant was arrested outside premises of the Court, he has filed Criminal Miscellaneous Application under section 491, Cr.P.C. being Criminal Miscellaneous Appeal No.D-284 and in that application on 7-6-2011 statement was filed by the respondents and matter was adjourned to a date in office. Learned counsel submitted that in order to satisfy their grudge against the applicant police authorities have registered a deliberately false case in order to punish the applicant for his not obeying Faisla and non-payment of bribe to the police authorities. Learned counsel relied upon case of Ali Khan Khalhoro v. The State 2010 PCr.LJ 1087, Gulab Hussain v. The State 2009 YLR 189 and Nadeem v. The State 2007 MLD 1092. Learned D.P.-G. submitted that entire quantity of the Charas was sent to the Chemical Examiner and chemical examination report is positive. He there-fore vehemently opposed this bail application. I have considered the submission made by the learned counsel for the applicant and learned D.P.-G. and have also gone through the record. As far as contentions of learned counsel for applicant that there was no independent mashir is concerned, it is not well-settled law that provisions of section 103, Cr.P.C. are not applicable, stricto sensu to offences falling within provisions of the Control of Narcotic Substances Act 1997. Reliance on case of Gulab Hussain (Supra) is of no help to him because in Gulab Hussain's case the accused was arrested in train at a Railway Station which was a busy place and in the present case the accused was arrested at an isolated place near a village road. Similarly contentions of learned counsel for the applicant that sample sent was not stated is without any relevancy. It was also submitted by learned D.P.-G. that entire quantity was sent to Chemical Examiner for examination. Case of Ali Khan Kalhoro is for the same reason distinguishable because in the present case no sample was drawn but entire quantity was sent to Chemical Examiner. For the same reason Nadeem's case (Supra) is not applicable to the facts of present case. The present applicant filed Constitutional Petition No. S-1222 of 2011 on 2-5-2011 alleging harassment at the hands of police. That Constitution Petition is still pending. Thereafter the applicant filed an application under section 491, Cr.P.C. and that application is also pending. This clearly shows existing, if not enmity at least a grudge on the part of the police. It cannot be ruled out that a person who has been litigating against the police would be a natural target of the police for roping in on whatever pretext they can. It coupled with the facts that it is stated in the F.I.R. that police party went on patrolling in a private Car. From where did the private car come is not stated in the F.I.R. and learned D.P.-G. is unable to make any statement in this regard. This strengthen the doubt. Result of the above discussion is, this bail application is allowed. Applicant is ordered to be admitted to bail upon his executing PR bond in the sum of Rs.100,000 (One lac) with one solvent surety in the like amount to the satisfaction of the trial Court. Needless to observe that the trial Court while deciding guilt or innocence of the accused persons shall not be, in any manner whatsoever influenced by any of the observations made above. The trial Court is also directed to conclude the trial within a period of two months. H.B.T./M-135/K Bail granted.