1. ' MUHAMMAD AFZAL SOOMRO, CJ.--- Applicant Abdul Nabi has approached for bail in Crime No,2 of 2007 under section 6/9(c), C.N.S. Act, 1997 registered at Excise, Karachi.
2. ' The facts giving rise to this application are that on 27-3-2007 at 2-45 p.m. While complainant along with other officials of Excise was on patrolling in, Korangi No,1, Karachi, on spy information he arrested the applicant and recovered 2 Kgs. Of Charas in the shape of rods from his fold of his Shalwar, memo. Of arrest and recovery was prepared on the spot and he was arrested.
3. ' It is contended that as per version of the prosecution the Charas weighing 2 Kgs. Was recovered in the shape of rods, totaling 200 rods only 2 rods weighing 10 gms each were sent to the chemical examiner, hence accused is supposed to be in possession of only 20 gms of Charas which falls under section 6/9-(a), C.N.S. Act, for which only two years maximum punishment is provided and as per the dictum of the Honourable Supreme Court in Hashim v. The State PLD 2004 SC 856 whole rods should have been sent for chemical examination; that the complainant himself has investigated the matter which is violative of Article 18(4) of the Police Order 2002; that till date no chemical report is produced by the prosecution in the trial Court, as per Rule 5(3) of the Government Analyst Rules 2001, the custody of the accused in jail is totally illegal; that the accused is in jail for more than 13 months and that too without framing of charge; that as per version of the prosecution 2 Kgs of Charas were recovered from the fold of the Shalwar which is not possible in the circumstances and creates doubt in the alleged recovery of 2 Kgs.
4. ' The learned counsel for the applicant has relied on the case of Noor Muhammad v. The State 2007 YLR 1973 wherein it has been held by a Division Bench of this Court that the accused was arrested having a shopper in his hand containing eleven small shoppers. The entire material was taken out and it was weighed which comes eleven Kg. Of Charas, therefore, it is obvious that sample was not taken out from each small Thelies at the time of seizing and half kg. Charas was taken out from the entire property. Admittedly from eleven shoppers separate sample was not taken out from each shopper and no conclusive finding could be recorded that all the recovered material was contraband narcotics and bail was granted to the accused. In the case of Nadeem v. The State 2007 M LD 1092 a Division Bench of this Court held that slight increase in the quantum of narcotic substance can enhance the punishment and in the same position the accused can only be saddled with the responsibility of the substance of which a piece has been separated and has been sent for the chemical examiner.
5. ' He has also relied on the case of Liaquat Ali v. The State 2000 PCr.LJ 1317 (Karachi), wherein it has been held that accused was behind the bars for the last more than one year, but trial had not been concluded. Bail was granted to accused. Reliance is also placed on the case of Muhammad Farooq Khan v. The State 2007 PCr.LJ 89 (Karachi).
6. ' The learned counsel for the State while opposing bail contended that the applicant has been arrested with narcotics and is not entitled to bail as in such type of cases bail may not be granted.
7. She also contended that the complainant/Investigating Officer can investigate the case and there is no harm in the same; that if the quantity of contraband is more than one kg then the case comes within the prohibitory clause and that on the ground of delay the applicant is not entitled to bail.
8. ' I have heard the learned counsel for the parties, perused the case-laws discussed above-and scanned the other circumstances.
9. Admittedly the applicant is in jail for more than one year without trial, even charge has not been framed; the Charas was allegedly recovered from the fold of Shalwar weighing 2 Kgs. Which is not possible. Only 20 gms. Were sent for chemical examination as such presumption can be drawn that only such quantity has been recovered from the accused. It is settled principle of law that for granting benefit of doubt to accused it is not necessary that there should be many circumstances creating doubts, if a single circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. In the case of Ghulam Abbas and others v. The. State PLD 2005 Kar. 255, it has been held that the delay was acknowledged as the statutory right by the legislation but for the best known wisdom same has been withdrawn but bail has always been conceded by the apex Court even when such provisions were not available on statute book and even in some cases where such restriction was imposed the Court conceded bail on the ground of undue delay. The principle as has been laid down in the above case appears to be that the delay in each case is to be judged and weighed on its own merits. Inordinate delay if not explained amounts to abuse of process of law even in cases of capital punishment where the prosecution is loath in submitting the challan, slow in producing witnesses, failed to produce the accused without any justification or delaying tactics used by any person other than the accused including the complainant. There is consensus of opinion that if the delay is so shocking and scandalous, it would amount to abuse of process of law. Even where the directions of the superior Courts are not complied with without any justifiable reason, same could furnish a good ground for bail. Even in cases, on the assessment of police papers and conduct of the prosecution it could be seen that there is no future likelihood of conclusion of the trial in foreseeable future as for instance where proceedings against absconding accused took time or where the trial for any other reason could not be concluded, Court may be lying vacant for long time or where dispute as to the jurisdiction of Court took unreasonably long time for decision as was held by the apex Court in the case of Muhammad Saeed Mehdi, the object of the criminal trial is to face trial and not to punish as under trial prisoner, expeditious trial was recognized right of accused person.
10. ' In the case of Taj Wali and 6 others v. The State PLD 2005 Kar. 128, a Division Bench of this Court observed that the complainant was highly interested as he having detected offence, would like to see that accused was convicted. Complainant thus should not be made Judge of his own cause, his version should be investigated by another officer and a check could be placed on manipulation of evidence by complainant against innocent person which was very essential in present day's time. Activities of police officials who were themselves becoming complainants, witnesses and Investigating Officers should be checked and investigation of cases should be entrusted to officer superior to the complainant which act would ensure fair play between parties.
11. ' The Honourable Supreme Court in the case of Jaggat Ram v. The State 1997 SCM R 361 has held that maximum punishment prescribed for the offence was life imprisonment and the accused had remained in custody for a continuous period of more than one year. Trial of accused could not possibly conclude in the near future. Petition for leave to appeal was consequently converted into appeal and was allowed, resultantly accused was admitted to bail.
12. It is well-settled law that fair and expeditious trial is right of an accused person. In case where the applicants accused are able to show that there is unexplained delay on the part of the prosecution to proceed with the case and conclusion of the trial, delay is unexplained Court may enlarge the accused on bail. The applicant is languishing in jail for more than one year. The quantity can be given importance only when the same is linked with the applicant by cogent evidence. Similarly, the ban contained in section 51 will be attracted only when there are reasonable grounds for believing the applicant guilty of the alleged offence. In the case of Gul Zaman v. The State 1999 SCM R 1271, Bahadur Khan v. The State 2000 SCM R 677 and State v. Syed Abdul Qayum 2001 SCM R 14 the Honourable Supreme Court of Pakistan has clearly held that this Court was competent to grant bail in appropriate cases, notwithstanding the provisions of section 51. Keeping in view the abovementioned facts and circumstances of case, I am of the tentative view that there are no reasonable grounds for believing the applicant guilty of the offence and it requires further inquiry into his guilt. He is, therefore, directed to be released on bail on furnishing surety in the sum of Rs,50,000 with P.R. Bond in like amount to the satisfaction of the Nazir of this Court.
13. ' The observations made herein above are tentative in nature and trial Court should not be influenced by the same while deciding the case. The trial Court should decide the case on the basis of evidence produced before it.