2012 PLP 1171 (MLD)

MUHAMMAD TASNIM, J.

Applicant Abdullah is booked in F.I.R. No. 253 of 2010 registered with Police Station, Moro under section 9-C of CNS Act, 1997. The case as set out by the prosecution in the F.I.R. is that 12-7-2010, complainant Wazir Ali Rajper, S.H.O. of Police Station, Moro while on patrol duty along with his subordinate staff, after encounter of 25 minutes with the accused party, apprehended five accused persons including present applicant from link road leading towards Pandhi from Moro near Dargah Jamal Shah. From the possession of present applicant, police recovered 1200 grams of Charas and cash of Rs.400. Learned counsel for the applicant submits that the incident took place on 12-7-2010 and allegedly 1200 grams of Charas was recovered from the applicant; however sample for chemical examination was forwarded on 21-7-2010 about 9 days after the alleged recovery. He says that during intervening period prosecution must have tampered with the substance recovered from the applicant. He further says that Chemical Examiner also delayed the report which he would have forwarded within one day time, however, he submitted report on 23-7-2010 though sample was received by him on 21-7-2010. He further says that as per allegation of F.I.R. encounter for about 25 minutes continued between the parties, but no one sustained injury. Learned counsel says that from the plain reading of contents of F.I.R. it appears that story is false and fabricated and the applicant has been falsely implicated as the applicant has not submitted to illegal demand of police. Learned counsel says that apart from the above on the same day by the same police applicant was booked in another Crime No.251 of 2010 under sections 353, 324, P.P.C. wherein joint Mashirnama of both crime numbers was prepared, but the present applicant has been enlarged on bail in Crime No.251 of 2010 on the ground that story of prosecution in F.I.R. is false and for the reason that encounter continued for about 25 minutes, but no one sustained injury. Learned counsel says that this is a case of further enquiry, and it is a borderline case between clauses 'b' and `c' of section 9 of CNS Act. He further says that it is consistent view of the superior Courts that in cases of borderline category of sections 9-B and 9-C of CNS Act, bail has been extended to the applicant. He relied upon cases of Taj Ali Khan v. The State (2004 YLR 439), and Hakeem Jamali v. The State (2009 PCr.LJ 695). On the other hand, learned A.P.-G. has vehemently opposed the grant of bail to the applicant. He says that Chemical Examiner's report is positive and no prejudice has been caused to the applicant due to delay in forwarding sample to the Chemical Examiner. He has invited my attention to the FSCL rules more particularly sections 3 and 4 whereof to contend that 72 hours time is provided for forwarding sample to the chemical examiner and even such provision is not mandatory in nature. He says that no prejudice has been caused to the applicant. He is not entitled to the concession of bail. I have heard learned counsel for the parties and have gone through the record. It is admitted position on record that alleged incident took place on 12-7-2010, but sample was forwarded on 21-7-2010 with the delay of 9 days which has not been explained by the prosecution. With regard to delay in sending the ample to the Chemical Examiner learned counsel has relied upon case of Hakeem Jamali (supra) wherein learned Single Judge of this Court while dealing with the point of delay in sending the sample has observed as under:-- "Due to delay in sending the samples to the chemical examiner by the police, a reasonable doubt has been created in favour of the accused at bail stage. Being fortified with the rules 4 and 5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 and the case-law cited hereinabove, I am of the considered view that case is (sic) one of further enquiry has been made out in favour of the applicant and he is entitled for grant of bail". 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 border line case between clauses '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". Additionally, as per F.I.R. encounter continued for about 25 minutes, but neither any injury was sustained by anybody nor any damage was caused to the police vehicle. Since it is border line case and punishment is about 4 years and 6 months and this case requires further enquiry as well in terms of subsection (2) of section 497, Cr.P.C. Following the above rule I admit the present applicant to bail on furnishing solvent surety in the sum of Rs.100000 (one lac) and execution of PR bond in the like amount to the satisfaction of trial Court. Bail application is disposed of accordingly. H.B.T./A-95/K Bail granted.