This is a post arrest bail application in case FIR No, 252 dated 9.6.2003 under Sections 6/9 of the Control of Narcotic Substances Act 1997 registered with police station Gulberg, Faisalabad.
2. Briefly stated the facts of the case are that on 9.6.2003 at about 7.30 p.m. Ali Asghar S.I. alongwith Abul Hassan, Sana Ullah, Abdul Hameed, Munir Ahmad, Muhammad Abdullah, Basharat Shafqat, Safdar Ali and Abdul Razzaq Constables was on patrol duty when a rickshaw stopped near the police party and two culprits whose names were subsequently known as Jannat Mir and the present petitioner started running after having alighted from the said rickshaw. They were chased by the police party and were apprehended. From the person of Jannat Mir 3 Kg Charas was recovered regarding which a separate case has been made out against him. From the person of the petitioner two packets of Charas weighing 2 Kg of Charas were recovered, out of which 10 grams contents were removed and made into a sample sealed parcel. The said narcotic was recovered, taken into possession vide recovery memo which was attested by Munir Ahmad and Abul Hassan constables. The petitioner was searched and from his pocket Rs, 300/- cash, I.D. Card and driving licence were also recovered which were also taken into possession. Ali Asghar then drafted complaint which was sent to the police station on the basis of which formal FIR was lodged.
The sample sealed parcel was sent to the office of Chemical Examiner whose report confirmed the contents to be that of Charas.
3. It is contended on behalf of the petitioner that a fake case has been made out and the prosecution story set out in the FIR does not inspire confidence because if the petitioner was carrying Charas with him, there was no need to stop the rickshaw just near the police party as no one had signaled the rickshaw to stop and there was no necessity for the petitioner to run after having alighted from the rickshaw. It is contended that if the petitioner intended to run then the said object could have been successfully secured through fleeing by rickshaw. It is further. contended that two packets were allegedly recovered from the petitioner and out of them only 10 gram Charas was taken and made into a sample sealed parcel and it is not known that out of which one packet the said 10 gram Charas was taken and about the second packet there is no material to suggest that its contents were that of narcotics as no independent sample for Chemical analysis had been prepared out of the second packet. It is further contended that sending of only 10 grams contents out of a huge quantity of 2 Kg Charas for Chemical analysis is violative of the principle laid down in Na sir Khan vs. The State (1997 M LD 1473).
4. The learned counsel for the State has opposed the petitioner's bail application on the ground that huge quantity of nacotics was recovered from the petitioner's custody which could not be planted and that there is no mala fide on the part of the police officials for making out this case against the petitioner and that the offence charged against him falls within the prohibitory clause and as such concession of bail cannot be extended to him.
5. From the record it is borne out that from the petitioner's custody two packets of Charas weighing 2 Kg. were recovered and out of the said packets 10 grams contents were made into a sample sealed parcel. It is not clear that whether the entire Charas was mixed up together and out of the blended mixture 10 grams Charas was taken into possession for sample sealed parcel or the same was made out of one packet. The petitioner was apprehended at a busy public place but no person from the public was associated in the investigation. The recovery witnesses are only police constables. The quantity sent to the office of the Chemical Examiner is too little and it had been laid in Nasir Khan vs. The State (1997 M LD 1473) that at least 2/3rd quantity of the recovered narcotics intoxicant should be sent to the public analyst for test and examination for determination of the proper forum for the trial and as well as the quantum of sentence to be awarded to the accused, if found guilty but in this case the said principle has been violated. Sending of 10 grams contents in a sample sealed parcel out of two packets weighing 2 Kg cannot be regarded as sufficient to hold the presumption that the contents of both the packets were that of Charas on the basis of Chemical Examiner's report, declaring 10 grams contents to be that of Charas.
6. We have perused the file and have observed that the complaint all the recovery memos, rough sketch of site-plan. Zimnies and statements of the witnesses under Section 161 Cr.P.C. had been recorded in one hand but some proceedings have been signed by the Inspector SHO whereas others have been signed by Ali Ashgar S.I. Both these investigating officers cannot have identical handwriting and it can be easily inferred that this record has A not been recorded either by Ali Asghar or by the Inspector SHO but by some one else whose name does not figure in the record.
Thus the very recovery memo according to which the chards had been recovered from the petitioner has become a dubious document as its contents are not in the handwriting of Ali Asghar S.I which according to the prosecution case bad been drafted by him.
7. In view of these circumstances the case of the petitioner is a matter of further enquiry and as such he is admitted to bail in the sum of Rs, 15,000/- which one surely to the satisfaction of the trial Court.