2011 P Cr (PLP)

MUHAMMAD TASNIM J.

Through this bail application, present applicant has challenged the order dated 30-6-2010 passed by learned Special Judge for C.N.S. Naushehro Feroze in special case No.4 of 2010, whereby bail application filed by the applicant was rejected. The case as setout by the prosecution in the F.I.R. is that on 14-6-2010 complainant Wazir Ali Rajper, S.H.O. of Police Station, Moro while on patrol duty along with his subordinate staff after encounter of 20 minutes with the accused party, apprehended present applicant from link road leading from Moro towards Dour near Machi Water, when he along with co-accused Bashir alias Kali and two unknown persons were going in a car, driven by the applicant. Co-accused Bashir alias Kali along with unknown persons succeeded to make his escape good by throwing bag containing 1200 grams of Charas. The complainant party also recovered pistol and charas weighing 1300 grams, out of which 300 grams were separated for chemical analysis from the present applicant. Such Mashirnama of recovery of pistol, charas and car was prepared at the spot in presence of Mashirs PCs-Manzoor Ali and Gul Muhammad and thereafter present applicant and recovered property were brought at Police Station where F.I.R. was registered. Learned counsel for the applicant has submitted that as per F.I.R. encounter took place between the police and the accused party but no person sustained any injury. He further says that quantity of charas allegedly recovered from the applicant is 1300 grams and maximum punishment finally can be awarded by the trial Court is about 4 years and six months. He says that the present applicant has been falsely implicated in the present case and he has no concern whatsoever with the crime in question. He says that the applicant is a businessman and running his transport business. He further says that the police was annoyed with the applicant, as he had not given illegal gatification demanded by the police; hence present applicant has been falsely implicated. He further says that as per prosecution case, 300 grams of charas from the entire recovery effected from the applicant, was forwarded for chemical examination, but the report of Chemical Examiner says that instead of 300 ants laboratory had received about 270 grams of charas. Learned counsel says that since there is discrepancy in the weight of charas sent for chemical examination, benefit of such discrepancy is to be extended to the applicant. Learned counsel further says that the alleged quantity of charas his been planted upon the applicant by the police due to mala fide reasons. He says that the applicant being businessman has never indulged himself in any criminal activity nor has ever previously faced any criminal trial or has ever been convicted by any court of law. Learned counsel in the end says that since maximum punishment which can be awarded by the trial Court after conclusion of trial not exceed beyond five years, hence applicant be admitted to bail and it will not be just and proper in the circumstances of the case to keep the applicant behind bar during trial though the case of the prosecution is doubtful. In support of his afore-said contentions, learned counsel has relied upon Tai Ali Khan v. The State (2004 YLR 439), Rayasat Ali v. The State (2005 YLR 1862), Mahboob Ali v. The State (2007 YLR 2968), Gulab Hussain v. The State (2009 YLR 189), Gul Hassan Dero v. The State (2000 PCr.LJ 657) and Pervaiz Ahmed v. The State (PLD 2008 Karachi 14). On the other hand learned APG has vehemently opposed the grant of bail to the applicant. He says that applicant is connected with the offence, as he was driving the stolen car in which other co-accused were also travelling along with present applicant. He says that other co-accused had thrown a bag, containing charas weighing 1200 grams, whereas 1300 grams charas was recovered from the person of present applicant. He says that since there was no rush or traffic on the main road nor any private party was available, hence no private person was cited as Mashir by the prosecution. He further says that the contention of present applicant that he is running transport business or is businessman, such fact has not been disclosed either before this Court in bail application nor before the trial Court in his bail application. He further says that by afflux of time deficiency in the weight of charas has taken place and advantage of deficiency in weight may not be given to the applicant as the same has occasioned due to climatically effect. He has relied upon 2000 SCMR 73 in support of his above contention. I have heard learned counsel for the parties and have gone through the record. It is settled law that at the bail stage deeper appreciation of evidence cannot be gone into and only it is to be seen as to whether applicant is prima facie connected with the commission of offence or not. It is admitted position on record that only 1300 grams of charas was recovered from the applicant out of which 300 grams were referred for chemical examination, but the report of Chemical Examiner says that instead of 300 grams laboratory had received 270 grams of charas. It is also admitted position on record that as per F.I.R. encounter has been shown between the police and accused party, but no injury was sustained by either party. It has been consistent view of the superior Courts that in cases where recovery of substance does not exceed the limit between 900 to 1500 grams it has been held by the superior Courts that the case being of borderline between clauses (b) and (c) of section 9 of Control of Narcotic Substances Act, 1997 and invariably in. all cases applicants have been admitted to bail. In case of Gulab (supra) learned Single Judge of Peshawar High Court while dealing with the discrepancy in weight of recovered substance observed as under:-- "The charas recovered is 1200 grams which by margin exceed 1000 grams. The court while seized of the bail application has also to keep in mind the maximum sentence likely to be awarded to the accused. In this case the record does not show that the accused is a previous convict or involved in such like cases. Thus, in view of the dictum laid down in the case of Noor. Ali Khan v. The State and others reported in 2003 MLD 1637 (Peshawar). The accused/petitioner is entitled to the concession of bail" Similarly in case of Mehboob Ali (supra) the learned Divisional Bench of this Court has observed as under:-- "The contraband- charas weighing 1010 grams has been recovered from the possession of applicant during the raid. The quantity of 1010 grams marginally exceeds the limits of thousand grams, therefore, a borderline case in between clauses (B) and (C) of section 9 of Control of Narcotic Substances Act, 1997 is a point of discussion and further enquiry to determine the guilt of the applicant. The applicant/accused was arrested on 3-9-2006' and the case has not been fixed for recording the evidence by the trial Court as pointed out by learned counsel for the parties" 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 borderline 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 of 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". Lastly, in case of Rayasat Ali (supra), the learned Divisional Bench of this Court while dealing with the discrepancy in the substance shown in the F.I.R. and the substance as per Chemical Examiner's report has extended benefit of doubt to the accused in the following words:-- "Mr. Samo contended that according to Mashirnama of recovery and F.I.R., 1100 grams of Charas were recovered from the possession of applicant Rayasat Ali, while according to Chemical Examinee's report, the net weight of entire Charas was 978 grams. There is discrepancy of 122 grams for which there is no explanation. He has further submitted that the applicant is businessman and has been falsely implicated because of enmity with Pak Colony Police. He has further submitted that there is a delay of 17 days in sending the sample to Chemical Examiner. The alleged recovery is dated 13-10-2004 and the sample has been sent on 1-11-2004. The learned counsel has submitted that the applicant is entitled to the benefit of doubt even at the bail stage and consequently, he is entitled to be released on bail as it is a case of further enquiry, as envisaged under subsection (2) of section 497, Cr.P.C. He has further pointed out that even the trial Court has observed that difference in two weights can be resolved after recording of evidence of complainant" In view of aforesaid consistent view of the superior Courts and applying the same to the present case as there is also discrepancy in the weight shown in the F.I.R. and the weight of substance referred to Chemical Examiner and the present case appears to be border-line case which attracts the provision of clauses (b) and (c) of section 9 of CNS Act, the benefit of such discrepancy is to be extended to the present applicant. Accordingly, by a short order dated 31-8-2010, I had admitted the present applicant to bail on furnishing solvent surety in the sum of Rs.100,000 (one lac) and execution of PR bond in the like amount to the satisfaction of trial Court and these are the reasons for the same. M.H./A-96/K Bail allowed.