2010 SCMR 1160 (PLP)

ZIA PERWEZ, J.

This petition is directed against the order dated 3-4-2009 whereby the learned single Judge of the High Court of Sindh, Circuit Court, Hyderabad dismissed Criminal Application No.S-85 of 2009 seeking bail for the offence recorded under F.I.R. No.161/2008 of Police Station `A' Section Nawabshah, for the offence under section 9(c), Control of Narcotic Substances Act, 1997.

2. It is stated in the F.I.R. that the accused on seeing police party near Taj Colony on 28-7-2008 at about 1-30 tried to escape. After his arrest in presence of Mashir one plastic packet containing six pieces of Charas weighing 1300 grams were recovered. The recovered pieces were sealed into separate packets out of which 2 small pieces weighing 50 grams were sealed in one packet and forwarded for chemical examination.

3. Mr. Mehmood A. Qureshi learned Advocate Supreme Court for the petitioner contended that the case is lodged due to political rivalry with Shar Tribe of the area in this regard he has also referred to various F.I.Rs. available on record showing recovery of Narcotic Substance against other member of the same Shar Tribe in like manner and circumstances. He further contended that no sample has been drawn from the recovered pieces. Two small pieces forwarded for chemical analysis were not the part of the large pieces therefore they do not constitute representative sample drawn from such pieces. Therefore, even the positive chemical report will support recovery of Narcotic Substance only to the extent of 50 grams and at the most be awarded a sentence upto 2 years only on conviction for such quantity.

4. Mr. Shahadat Ali Awan learned Prosecutor-General, Sindh has opposed this petition. He contended that the recovery as reflected in the F.I.R. is the only determining feature in such cases. That the merits of the case are not to be examined at the bail stage and application is liable to be dismissed he relied on the case of Nadir Khan and others v. The State 1988 SCMR 1899.

5. Perusal of record in the light of the argument advanced before us and a plain reading of the F.I.R. shows that six separate pieces were recovered. Two pieces weighing about 50 grams were forwarded for chemical examination which prima facie do not appear either to be random or representative sample. The question of imposition of maximum sentence under the circumstances is to be determined during trial. Petitioner has already remained under custody for over 9 months.

6. In the case of Nadir Khan (supra) involving recovery of 49 bags of narcotic substance it was held that in view of the large number of bags it was not necessary to take sample from each bag. The samples drawn in a random manner from different bags constituted representative samples. We are in respectful agreement with the view however, two separate pieces not drawn from the large pieces as is reflected in the F.I.R. can hardly be considered as representative sample drawn from the quantity recovered, therefore, this case is distinguishable on fact.

7. For the foregoing reasons as a prima facie case for grant of bail is made out we convert this petition into appeal and admit the petitioner to bail subject to furnishing of solvent surety in sum of Rs.100,000 with two sureties each in the like amount before the learned trial Court. H.B.T./K-14/SC Bail granted.