2014 PLP 383 (YLR)

Through this petition, Muhammad Sajid alias Shahid petitioner has sought his post-arrest bail in case F.I.R. No.372 of 2012 dated 23-8-2012 offence under section 9(c) registered with Police Station Kot Sabzal Tehsil Sadiq Abad District Rahim Yar Khan.

2. The prosecution story as narrated by the complainant per F.I.R. is that on spy information the police conducted a raid and recovered 2 Kg of Poast on 23-9-2012 from the petitioner, hence this case.

3. Learned counsel for the petitioner inter alia contends that the petitioner is innocent and has not committed the offence alleged against him; that the whole prosecution story is untrue, baseless and concocted as there is a clear-cut violation of section 21 of the Control of Narcotic Substances Act (XXV of 1997) and section 103 of Cr.P.C. It has also been argued by learned counsel for the petitioner that the report of Chemical Examiner does not disclose any intoxicant substance; that it is yet to be determined whether the recovered substance was Poast or otherwise; that the petitioner is no more required to the prosecution for further investigation; that further detention of the petitioner behind the bar will not serve any useful purpose.

4. On the other hand, learned D.P.-G. has strongly opposed this bail petition while arguing that two Kg of Poast has been recovered from physical possession of the petitioner, therefore, he is not entitled to the grant of post-arrest bail.

5. We have heard the learned counsel for the parties and perused the record.

6. The petitioner was arrested in this case on 23-9-2012 and he is behind the bars ever since and is admittedly not required by prosecution side for further recovery or investigation. The learned counsel for the petitioner has produced certified copies of the order sheet of the learned trial Court, perusal of which shows that charge in this case was framed on 13-12-2012 after which the prosecution witnesses were summoned for 16-1-2013. On 16-1-2013 no prosecution witness was in attendance. Thereafter the case was adjourned to 4-2-2013, 18-2-2013, 7-3-2013, 27-3-2013 and 15-4-2013 and on all the said dates except for 7-3-2013 two P.Ws. Muhammad Anwer constable and Muhammad Saleem constable were present but their statements could not be recorded as the lawyers were observing strike on the said date. Now the learned trial Court has summoned the prosecution witnesses through non-bailable warrants. It is crystal clear that ever since the presentation of challan before the learned trial Court, the trial is lingering on one pretext or the other and the guilt of the accused/petitioner is yet to determine. It is evident from the certified copies of the order sheet produced before us that the prosecution is not pursuing the case vigilantly and its witnesses are not in attendance before the learned trial Court which they otherwise ought to have bound under the law. In the given circumstances it can safely be presumed that the trial in this case is likely to consume a reasonable time, and even otherwise no useful purpose will be served by keeping the petitioner behind bars for an indefinite period. Admittedly the petitioner is behind the bars since 23-9-2012 i.e. eight and a half months have elapsed. Apart from the above, it is yet to be determined by the learned trial Court, of course, after recording the evidence of the parties that the alleged recovered substance is a narcotic substance within the meaning of C.N.S.A., 1997, if the same contains 0.2 per cent of morphine and till that time the case of the petitioner is covered under section 51(2) C.N.S.A., 1997 calling for further inquiry into his guilt. Reliance is placed upon the case of "MASUD AHMAD v. THE STATE" (2008 YLR 1784 LAHORE).

7. Therefore, application is allowed and the petitioner is granted post arrest bail in this case subject to his furnishing bail bond to the tune of Rs.2,00,000 (two lacs) with two sureties in the like amount to the satisfaction of learned trial Court.

8. Before parting with this order, it is however, made clear that the assessment made in this order is tentative in nature and it will not effect upon the merits of the case while deciding it by the learned trial Court. HBT/M-245/L Bail granted.