2011 P Cr (PLP)

MUHAMMAD TASNIM, J.

Applicant Bahawal alias Naang Machhi has filed this application seeking post arrest bail, who is wanted in F.I.R. Crime No. 373 of 2009 Police Station, Moro District Naushahro Feroze registered for an offence under section 9(c) Control of Narcotic Substances Act 1997. Prosecution story is that the case was initiated on an F.I.R. lodged at the instance of complainant SIP Sanaullah Panhwar on 30-12-2009 at 1830 hours alleging therein that at 1700 hours they left Police Station for patrolling within the jurisdiction and during patrolling when they reached at Bandhi Road Minor they received spy information that one person is standing on Bandhi Road near the shrine of Jamal Shah having Charas in small bag and is waiting for transport for selling the Charas. On such information the police party proceeded towards pointed place where they found Bahawal (present applicant) standing having small bag of blue colour in his hand. On seeing the police party, he started running but was apprehended along with small bad and on opening of bag, the police found Charas lying in it, one Kalashnikov and two magazine lying in the bag. The recovered Charas was weighed which became 1200 grams out of which 100 grams was taken as sample and remaining 1100 grams of Charas was sealed separately. On enquiry he disclosed his name to be Bahawal alias Nang (present applicant), hence the F.I.R. was lodged as stated above. The learned counsel for the applicant has submitted that as per F.I.R. police has apprehended the applicant with Charas on spy information. He submitted that if police has acted on receipt of some spy information, the police must have associated some private person from the general public and must have cited as mashir in the case. He further submitted that entire action by the police has been taken just to implicate the present applicant due to enmity with the police officials. He argued that no substance whatsoever was recovered from the present applicant but the Charas was planted by the police upon the applicant. He further argued that as per F.I.R. the applicant was apprehended in the thickly populated area but no person from the area was cited as witness. He further argued that there is delay of 7 days in sending the samples to the Laboratory for Chemical Examination and such delay of 7 days has not been explained by the police. He contended that in the aforesaid all circumstances the applicant's case falls under section 497(2), Cr.P.C. calling for further enquiry into the matter. In support of his above contentions, he has placed reliance on the case of Hakim Mumtaz Ahmed v. The State (PLD 2002 SC 590), Hamza v. The State (2000 PCr.LJ 1360) and Hakeem Jamali v. The State (2009 PCr.LJ 695). As against the above, the learned A.P.-G. appearing for the State has opposed the grant of bail and has submitted that in action under C.N.S. Act, it is not necessary that private party is to be associated. He further submitted that the provisions of section 103, Cr.P.C. are not applicable in the present case. However on a query from the Court, the learned A.P.-G. could not successfully satisfy the Court about the delay in sending the samples to the Laboratory for Chemical Examination. I have heard the arguments of the learned counsel appearing for the parties and have gone through the material placed before me so also the judgments cited at the bar. It is settled law that at bail stage deeper appreciation of the evidence cannot be gone into but only it is to be seen as to whether the applicant/accused is prima facie connected with the alleged offence or not. In the present case it is an admitted position on record that police acted on the spy information. In all fairness and in view of the honourable Supreme Court judgments referred to above police must have associated some private person during the alleged arrest. It is also an admitted position that there was delay of 7 days in sending the substance to the Laboratory and such delay has not been explained. In the case of Mumtaz Ahmed (supra) the honourable Supreme Court of Pakistan has held as under:-- "Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused. Allegations against accused, thus, needed further enquiry." In the case of Hamza (supra) the learned Division Bench of this Court while dealing with the issue of delay in sending samples to the Laboratory has held as under:-- "The perusal of the report of Chemico Bacteriological Laboratory and Chemical Examiner to the Government of Sindh, Karachi shows that the alleged recovered narcotics was sent for Chemical analysis on 16-11-1995 whereas the alleged recovery was made on 4-11-1995. The delay in sending the property was not explained by the prosecution particularly when the Chemical Laboratory is situated in Karachi." Similarly a learned single Judge of this Court in the case of Hakeem Jamali (supra) while dealing with the issue of sending samples of Charas to the Laboratory for Chemical Examination has held as under:-- "The learned State Counsel has failed to account for delay in sending the samples to chemical examiner. Besides it, police papers are also silent as to why these samples were sent with such delay to Chemical Examiner. There is no explanation available with the State Counsel to show that whether these samples were kept in safe custody or not and who was responsible for their safe custody for such long period of 12 days. In such situation, the dictum laid down in case-law cited by the applicant's counsel reported as Mouladad alias Baba v. State 2005 MLD 452 (Karachi) is attracted." Following the rule laid down by the superior Courts in the judgments cited herein above, I had allowed this application and admitted the applicant to bail subject to his furnishing solvent surety in the sum of Rs. 200,000 (Rs. two lac) only and P.R. bond in the like amount to the satisfaction of the learned trial Court by a short order dated 29-7-2010 and these are the reasons for the same. The observations made in this order are tentative in nature and shall not have any bearing upon the pending proceedings. Application stands disposed of. H.B.T./B-14/K Bail granted.