I heard Mr. Muhammad Fakhr-e-Alam Khan Jhagra, Advocate, for the petitioner and Mr. Sabetullah Khan, Advocate, for the State and the learned counsel for the parties argued the case for grant of bail, or otherwise, on the basis of the available record.
2. The brief facts of the case are that FIR No, 159 of Police Station Faqir Abad Peshawar dated 25.2.2005 was recorded on the written Murasila of Gul Mast Khan SI. It was stated in the Murasila that there was complaint that a boy, namely, Jarman was selling charas in the Bazar of Budho, Samar Bagh, that the SI was present alongwith Zahidullah, Niaz Ali, Khalid and other police officials in the said Bazar when they found the same boy with a black shopper in his hand which was checked, that 25 wrapped pieces of Garda charas, one packet of Pukhta charas and the sale amount of Rs, 80/-was recovered from his person who identified himself as Iftikhar alias Jarman son of Khanan, resident of Budho, Samar Bagh. It was further mentioned by the said SI that the Garda charas was weighed and was found as 120 grams, while the Pukhta charas in the packet was one kilogram. He separated 5 grams sample from 120 grams after mixing them and also separated 5 grams sample from Pukhta charas, which were separately sealed and the remaining Garda charas and Pukhta charas were also sealed in separate parcels. The recovery memo to that effect was prepared. Some investigation in the case was also conducted.
3. It was vide order dated 8.3.2005 that the learned Special Judge /Additional Sessions Judge-II Peshawar dismissed the application for grant of bail to the accused-petitioner; on the grounds that the contraband exceeded 1000 grams and the case fell under Section 9(c) of the Control of Narcotic Substances Act, 1997, which was covered by the prohibitory clause of Section 497 Cr.P.C. that a prima facie case existed against the accused petitioner and the offence also affected the society at large.
4. The learned counsel for the petitioner submitted that it was 'a border line case between the provisions of Section 9(b) and Section 9(c) of the Control of Narcotic Substances Act, .1997, and that there was delay in sending the samples to the FSL, hence, it was not sure that whether the samples were kept in proper custody, or not. He relied on the precedent case reported as 2005 P.Cr.L.J. 345 in which 1350 grams of charms powder (Garda) was allegedly recovered from the possession of Mst. Razia petitioner. The grounds for release of that petitioner were that she was a female. a widow, and mother of a suckling baby as stated in the petition, and that the maximum punishment could not be awarded even if the charge was established.
5. In this case, petitioner has been shown as a boy, but his exact age has not mentioned. The application of the Investigating Officer to the Chemical Examiner FSL Peshawar is dated 25.2.2005, while it is mentioned in the Zimni dated 2.3.2005 that the charas in this case had been sent to FSL but the opinion was not received till then. The report of the Chemical Examiner dated 30.3.2005 is available on the file, which showy that the parcels were received in the Laboratory on 12.3.2005. The prosecution has to explain, the delay between. 25.2.2005 and 12.3.2005 in the light of sub-rule (2) of the Rule 4 of the Control of Narcotic Substances (Government Analysis) Rules, 2001, and to prove that the samples were safe during the said period.
Keeping in view the circumstances of this case in the light of the young age of the petitioner, the quantity of the charas, and the investigation, the accused-petitioner is entitled to the grant of ball at this stage. I, therefore, allow this petition and order the release of the ,accused-petitioner on bail on his furnishing bail bond in the sum of Rs, 50,000/- (rupees fifty thousand only) with two sureties, each in the like amount, to the satisfaction of the learned trial Judge. who shall ensure that the sureties are local, reliable and persons of means.