' CH. EJAZ YOUSAF, J.--- This petition for leave to appeal is directed against order, dated 18-9-2007 passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Criminal Miscellaneous No,270-M of 2007 filed by the petitioners, for suspension of sentence of the petitioner during pendency of appeal, was rejected.
2. Briefly stated, facts of the case as gathered from the available record are that the petitioners were convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to undergo R.I. For 14 years along with a fine of Rs,1,00,000 each or in default thereof to further undergo R.I. For one year each, in case F.I.R. No,136, dated 21-3-2001 registered, under sections 9(c), 14 and 15 of the C.N.S. Act, 1997, with Police Station Airport, Rawalpindi.
3. It would be pertinent to mention here that on 14-3-2001 a consignment, comprised of three cartons, containing knitting needles, were booked in the name of Hussain Bitimar, P.O. Box No,12061, Nairobi, Kenya, through Customs Clearing Agent Atif Hussain, proprietor of Atlantic Cargo. The said Cartons were checked by the Customs Authorities. On opening of these cartons it was found that the needles were wrapped in brown paper which was found sprinkled with powder substance of white colour. The wrapping paper weighing 2800 grams in all was seized and sealed at the spot.
Samples were also taken out for sending to the Chemical Examiner.
4. Sardar Muhammad Latif Khan Khosa, learned Advocate Supreme Court, appearing on behalf of the petitioner has submitted that as per earlier report, though the allegedly recovered material contained heroin yet as per detailed report (Exh.D.A.), dated 30-4-2007 furnished by Pakistan Council of Scientific and Industrial Research, the paper and the coating material both did not contain heroin or any narcotic material. He maintained that in case two conflicting reports a case of further inquiry, in favour of the petitioner was made out. It is further his case that as per said report since the total quantity of the contraband material was 2% in case of brown paper with mild coating and 6% in case of brown with white coating of the total recovered material and the petitioners are in jail since 21-3-2001, i.e, from the time of their arrest, their appeal is also pending since 24-4-2007 and there is no likelihood of the same being heard in near future, therefore, the petitioners may be released on bail.
5. Mr. Muhammad Siddique Khan, learned Deputy Prosecutor-General, Punjab, while controverting the contentions raised by the learned counsel for the petitioner has submitted that since guilt of the petitioners was fully brought home, at the trial and it was proved by the prosecution through independent and reliable evidence that the petitioners were involved in transportation of contraband material, therefore, they were rightly convicted for the offence and thus, were not entitled for the grant of bail. He has however, not controverted that total quantity of the recovered paper was 2800 grams, and there were conflicting reports.
6. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also gone through the available record with their assistance, carefully. It would be pertinent to mention here that learned Judges in the High Court while rejecting bail application have not touched merits of the case but have rejected the same by simply saying that since on conviction of the petitioners the initial presumption of innocence available to them was dislodged and the contentions raised require deeper appreciation of evidence hence, the application was liable to rejection. Observations made in para.5 of the impugned order are explicit in this regard..We are also not inclined to comment on merits of the case lest it may prejudice the case of either of the parties before the Appellate Court yet, since both the parties have admitted that the petitioners are in jail since 21-3-2001, there is no likelihood of their appeal being heard in the near future, the material sprinkled on the paper was only 2% of the paper in case of brown with mild coating and 6% in the case of brown with white coating which if calculated would come only to 5.6 and 16.8 grams only, which is quite a small amount, as per report furnished by the Pakistan Council of Scientific and Industrial Research, the recovered material including the coating material did not contain "heroin" and there are two conflicting reports therefore, in our view the petitioners have made out a case for suspension of their sentences. Accordingly, this petition is converted into appeal and allowed. The petitioners Khalid.Mehmood Butt son of Muhammad Saddique Butt and Rauf Ahmad Qureshi son of Zahoor Ahmad Qureshi are allowed bail in the sum of Rs,2,00,000 (Rupees two lac each) and P.R. Bonds in the like amount to the satisfaction of the Additional Registrar of the Lahore High Court, Rawalpindi. Bench, Rawalpindi.
' These are the reasons of our short orders of even date announced in open Court.