2012 YLR 2298 (PLP)

MUHAMMAD TASNIM, J.

Through this bail application; the present applicant who is booked in Crime. No. 208 of 2010 registered with Police Station Ghotki, under. section 9(c) of CNS Act; 1997, has challenged the validity of order dated 16-6-2010 passed by learned Sessions Judge Ghotki, in Criminal Bail Application No. 16 of 2010. Learned counsel for the applicant in support of bail application submits that it is a case of prosecution that about two Kgs of Charas was recovered from the possession of the applicant. He further says that after delay of four days; entire packet containing Charas was forwarded to the laboratory for chemical examination and he says that delay in sending the sample for chemical examination is fatal to the prosecution and benefit whereof be extended to the applicant. He further says that it is a case of prosecution that on receipt of spy information, applicant was apprehended ' but no private person was associated at the time of arrest or search of the applicant. He says that it is unbelievable that about two Kgs of Charas will be kept by some person on his person. He further says that applicant is in custody since 12-5-2010; and his bail application has been rejected by the trial Court on flimsy grounds. The arguments noted as above were not considered by the trial Court. He further says that there is discrepancy in the weight. The F.I.R. says that two Kgs of Charas was recovered whereas packet forwarded to the laboratory suggests that weight of such packet was 1700 grams. Learned counsel says that there is inconsistency in case of prosecution, benefit whereof be extended to the applicant. He relied upon case of Hakeem Jamali v. The State (2009 PCr.LJ 695), Akhtar Ali v. The State (2009 PCr.LJ 50), Rayasat Ali v. The State (2005 YLR 1862), and Qutubuddin v. The State (2009 PCr.LJ 1340). On the other hand, learned A.P.-G. has opposed the grant of bail to the applicant on the ground that as two K.gs. of Charas has been recovered from the person of the applicant, he is not entitled to the concession of bail. He supports the order passed by learned trial Court by saying that all the contentions have been taken note of by the learned trial Court. I have heard learned counsel for the parties and have gone through the record. It is an admitted position on record that as per F.I.R., two Kgs of Charas was recovered whereas report of the Chemical Examiner shows that packet contained only 1700 grams of Charas. 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 FIR. 1100 grams of Charas were recovered from the possession of ' applicant Rayasat Ali, while according to Chemical Examiner'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 ease 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". With regard to delay in sending the sample 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 herein-above, I am of the considered view that case is one of further enquiry has been made out in favour of the , applicant and. he is entitled for grant of bail". Following the above rule, I admit 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. Bail application is disposed of accordingly. HBT/K-27/K?????????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.