1. ' MUHAMMAD AFZAL SOOMRO, C.J.-Applicant Khalilur Rehman has approached this Court for grant of bail in F.I.R. No,4/05, under section 9(c) CNS Act, registered at Police Station Excise, Distt.
2. Naushero Feroz.
3. ' The facts succinctly stated are that on 11-4-2005, the complainant with his subordinate staff proceeded for patrolling purpose and when they reached on National Highway Dooro Bihan they saw a Datsun coming from Moro No,C-1517 in which two persons in suspicious condition were found. They were signaled to stop and when they reached at link road Deparia to Sodhjua a person sitting with driver succeeded in running and complainant informed the driver and interrogated him who disclosed his name as Khalilur Rehman. On his personal search Rs,300 and NIC were recovered. On search of the vehicle a plastic patchka containing 12 bags of Charas containing 500 grams each were recovered out of which only 50 grams of Charas was sent for chemical examination. Accused was arrested.
4. ' Learned counsel for the applicant contended that despite direction given by this Court to the trial Court for conclusion of the trial within 2 months the trial Court has not completed the trial; that the applicant has been languishing in jail since 2005 but his case has not yet been concluded and there is no chance of conclusion in near future; that the applicant is a victim of enmity with Excise Inspector Ghulam Mustafa Zardari and Excise Inspector Malik Muhammad Ameen and other subordinate staff against whom F.I.R. No,5 of 2006 has been registered by the State and their bail application has been dismissed on 5-10-2006 by learned Special Judge Anti Corruption; that the applicant has been declared innocent by the Investigating Officer and from the perusal of the report, dated 30-6-2005 of Dy. Inspector General of Police (Operation) Sukkar it reveals that the applicant has been falsely implicated in this Crime by Excise Inspector Ghulam Mustafa and others, that there are two versions of the case which requires further inquiry into the guilt of the applicant; that this Court in Criminal Miscellaneous. No, 183 of 2006 filed by the applicant vide order, dated 9- 10-2006 directed the learned Special Judge CNS Naushero Feroz to pass an appropriate order on the report furnished by the Investigating Officer Naushero Feroze; the learned trial Court passed order on 3-11-2006 and turned down the investigation D.I.G. (Operation) Sukkur and report was submitted to this Court; that the learned trial Court in the order, dated 22-11-2006 has observed that "from the Ending at page 11 to the effect that excise inspectors Ghulam Mustafa Zardari and Malik Muhammad Ameen are responsible for misconduct, excess misuse of official power, corruption and registration of false cases, therefore the case requires further inquiry; that there is no recovery from the exclusive possession of the applicant and the same has been foisted against the applicant; that the names alleged recovery mashirs are not mentioned in the F.I.R. In order to facilitate the prosecution; that coaccused Ghulam Nabi Rahoo as mentioned in the F.I.R. Has been let off by the Excise Police. It is also contended that sample from each bag was necessary to be detached, hence presumption is that only 450 grams was recovered. Learned counsel has relied on the case reported in Noor Muhammad v. The State (2007 YLR 1973) 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 to be 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 cut from the entire property. Admittedly 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 Nadeem v. The State (2007 M LD 1092) a Division Bench of this Court held that slight increase in the quantum of narcotics 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 examination.
5. As far as the custody of the contraband substance is concerned, learned counsel for the applicants relied on Hussain Abid Jaffary v. The State (2006 PCr.U 58), wherein it has been held that possession implied a physical capacity to deal with the thing as one liked to the exclusion of every one else and a determination to exercise that physical power on one's own behalf. It implies dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity to the object.
6. ' As far as delay is concerned, learned counsel .Relied on David Dufaur v. The State (SBLR 2001 SC 132) wherein it has been held applicant in continuous custody and having completed more than two years the accused is entitled to the grant of bail on the ground of delay. In Anwar Ali and another v. The State (2002 PCr.U 186) the learned Division Bench of this Court held that delay would tantamount to negligence and would defeat the very purpose behind which civilized societies pride themselves having a legal order which would serve as a shining example to others. Accused were released on bail.
7. ' Lastly reliance has been placed on Muhammad Aslam v. The State (1999 SCM R 2147) wherein the Hon'ble Supreme Court has observed that despite direction of High Court trial against the accused had not been completed by the trial Court within the specified period. Prosecution was unable to give any explanation for non-compliance of the said order of High Court. Accused was admitted to bail.
8. ' The learned counsel for the State has opposed the bail by contending that the accused is involved in a heinous offence and is not entitled to the concession of bail.
9. ' I have heard the learned counsel for the parties perused the case laws discussed above and scanned the other circumstances.
10. ' The direction of this Court has not been complied with. Accused is behind the bars since, 2005. It is well settled law that fair and expeditious trial is right of an accused person. In case where the applicant accused is able to show ^ that there is unexplained delay on the part of the prosecution to proceed with the case and conclusion of the trial is unexplained Court may enlarge the accused on bail. Furthermore, the entire quantity was not sent for chemical analysis and weighment etc. To confirm the weight of alleged recovered charas. There is enmity between the applicant, complainant and his subordinate. There are proceedings against the I.O. For false involvement of persons. Furthermore, for granting benefit of doubt to accused it is not necessary that there should be many circumstance creating doubts, if a simple 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.
11. ' In the light of the above case laws and discussion, the applicant/accused is entitled to the grant of bail. Accordingly, I grant him bail in the sum of Rs, 100,000 with P.R. Bond in like amount to the satisfaction of the Nazir of the trial Court.