2012 PLP 2596 (YLR)

MUHAMMAD TASNIM, J.

Applicant Muhammad Abdullah son of Lal Muhammad is arrested in Crime No.846 of 2010 on 20-9-2010 registered under section 6/9-C of C.N.S. Act, 1997, at Police Station Saeedabad. Initially applicant applied for bail before Special Court-II (CNS), Karachi, who vide his order dated 26-1-2011 dismissed the same. Feeling aggrieved against the aforesaid order present bail application has been filed.

2. The case as set out in the F.I.R. are that on 20-9-2010 the police officials, namely, PC Muhammad Amjad and PC Muhammad Razzak were on patrolling duty, during patrolling for checking purposes stopped a motorcyclist bearing Motorcycle No.KDR-4033 and on inquiry he disclosed his name as Muhammad Abdullah and secured one plastic bag containing 4 packets of suspected chemical/ powder, each packet weighing 5 kilograms, total weighing 20 kilograms, the apprehended person did not give satisfactory reply about the chemical/ powder, therefore they brought the apprehended person along with recovered chemical and motorcycle at the police station, sample sent to Chemical Examiner and after receiving positive result as opium (Alkaloid) F.I.R. was lodged.

3. Learned counsel for the applicant has submitted that there is a delay of seventeen days in lodging of F.I.R. He further submits that no mashirnama either of recovery or arrest was prepared on the spot at the time of alleged arrest and recovery. Learned counsel further submits that from the reading of the contents of F.I.R. it appears that Provisions of section 21 of C.N.S. Act, 1997, have been violated. Learned counsel says that it is a special law and a special procedure has been laid down for doing a thing in a particular manner and not otherwise. Learned counsel for the applicant further submits that there is delay of ten days in sending the samples to the Chemical Examiner and the referral letter issued to the Chemical Examiner does not carry crime number, quantity of the alleged recovered substance and the name of the accused. Learned counsel says that the case of prosecution is throughout doubtful and the alleged recovered substance has been tampered by the prosecution prior sending for chemical examination. He says that tampering of substance has prejudiced the case of applicant. Learned counsel for applicant submits that applicant was arrested from the thickly populated area but no private witness was associated at the time of his arrest or alleged recovery. Learned counsel says that it is a fit case in which further enquiry is called for and prays that the applicant be admitted to bail. In support of his contentions learned counsel for the applicants has relied upon the cases of (1) SHAFIULLAH V. THE STATE (2007 YLR 3087), (2) KHALID NAWAZ THE STATE (1999 PCr.LJ 391), (3) ZAHOOR AHMED V. THE STATE (1995 PCr.LJ 1715), (4) GUL ZAMAN V. THE STATE (1999 SCMR 1271), (5) KHALID SULTAN V. THE STATE (1985 PCr.LJ 241), (6) KHAN BACHA V. THE STATE (PLD 2006 Karachi 698), NAWAZ V. THE STATE (2004 YLR 1118) and RYASAT ALI V. THE STATE (2005 YLR 1862).

4. On the other hand, learned A.P.-G. has vehemently opposed the grant of bail and has submitted that there is ample material available with the prosecution which connects the present applicant with the commission of offence. Learned A.P.-G. says that delay in sending the sample to the Chemical Examiner is not fatal to the case of prosecution. Learned A.P.-G. submits that provisions of Rule 4 of Narcotic Substances (Government Analyst) Rules, 2001, are directory in nature and violation thereof will not hamper the case of prosecution. Learned A.P.-G. has, further submitted that provisions of section 21 of C.N.S. Act, 1997, are also directory in nature and if they have not been followed in letter and spirit it will not affect the case of prosecution adversely. However, learned A.P.-G. frankly admitted that there is delay of seventeen days in lodging of F.I.R. Learned A.P.-G. further submitted that mashirnama of recovery and arrest were prepared but the same were prepared in the police station. In support of his above contentions learned A.P.-G. has relied upon the cases of (1) MAZHAR AHMED V. THE STATE (2005 PCr.LJ 846), (2) MUHAMMAD SHAFIQ QURESHI V. THE STATE (PLD 2006 Lahore 300), (3) MUHAMMAD NOOR AND ANOTHER V. THE STATE AND OTHERS (2007 YLR 1022), (4) NOOR SHAH V. THE STATE (2005 YLR 1274), (5) LUQMAN RAJI ADEWUNMI V. THE STATE (2005 PCr.LJ 248), (6) GUL ALAM V. THE STATE (2011 SCMR 624) and THE STATE V. ABDALI SHAH (2009 SCMR 291).

5. I have heard the learned counsel for the parties and have gone through the record so also the case law cited at bar.

6. It is settled principle of law that at the bail stage deeper appreciation of the record cannot be gone into but only a tentative assessment is to be made just to find out as to whether the applicant/ accused is connected with the commission of offence or not. Applying the above test to the present case it will be noticed that admittedly there is delay of seventeen days in lodging of F.I.R. It is also admitted position that mashirnama of arrest and recovery were not prepared at the spot. It is also admitted position that samples were sent after ten days of the alleged recovery. It is also admitted position that prima facie the provisions of section 21 of C.N.S. Act, 1997 have been violated. It is also admitted position that no private witness was associated at the time of alleged recovery or arrest.

7. With regard to the contention of learned counsel for the applicant that there was delay in sending samples and there was allegation on the part of the applicant that alleged recovered narcotics substances was tampered which has caused serious prejudice to the applicant. The judgment cited by the learned A.P.-G. in the case of Gul Alam (supra) is of no consequences as in the reported judgment the Honourable Supreme Court while dealing with the point in issue has observed as under:-- "Further, failure to follow the rules would not render the search, seizure and arrest under the C.N.S.A, an absolute nullity and non est and make the entire prosecution case doubtful, except for the consequence provided in the rules. In directory provisions substantial compliance is sufficient and even where there is no compliance at all, the act is not invalidated by such non-compliance if the act otherwise is done in accordance with law. The delay otherwise in sending the incriminating articles to the con-cerned quarter for expert opinion cannot be treated fatal in the absence of objection regarding the same having been tampered with or manipulated. There is no allegation of the petitioner that the property was tampered with during the process of transit or the remaining property was not 'charas'. " (Underling is mine for emphasis)

8. From the perusal of the above quoted extract from the judgment of the honourable Supreme Court, it will be noticed that in the reported judgment there was no allegation of tampering or manipulation with the substance allegedly recovered but in the present case, the applicant has submitted that alleged recovered substance has been tampered which has caused serious prejudice. Even otherwise the judgment relied upon by the learned A.P.-G. arises from the proceedings where evidence was recorded, judgment was passed, appeal was taken to the High Court and the matter had come up before the honourable Supreme Court of Pakistan but in the present case no evidence has been recorded and it is a very initial stage and only bail application is being disposed of, hence the judgment cited by the learned A.P.G. will not support the case of prosecution.

9. Although private persons were not required to witness the recovery of narcotic substance as provided under the C.N.S. Act, 1997, yet the place of recovery and the time of recovery had to be kept in view to prevent false implication of innocent people. Similar question has been dealt with by a learned Division Bench of this Court in the case of NAWAZ V. THE STATE (2004 YLR 1118), the learned Division Bench while dealing with the point in issue has observed as under:- "Though private persons are not required to witness the recovery of Narcotics substance as provided under C.N.S Act yet the place of recovery and the time of recovery has to be kept in view to prevent false implication of innocent people, looking to the general conduct of police. The maximum punishment provided for the alleged offence is 7 years which does not fall within the pro-hibitory clause contained under section 497, Cr.P.C. The accused is behind bars since last four months. Keeping in view the peculiar circumstances of the case we are inclined to grant bail to the applicant."

10. The judgments cited by learned A.P.-G. are distinguishable on facts and do not advance the case of prosecution.

11. For the forgoing reasons, in my view, this case requires further enquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, the applicant is admitted to bail on his furnishing solvent surety in the sum of Rs.500,000 (Rupees five hundred thousand) with P.R. bond in the like amount to the satisfaction of learned trial Court.

12. In view of above this bail application stands disposed of along with office objection. HBT/M-161/K Bail granted.