1. ' ABDUL RASHEED KALWAR, J.---By this order I want to dispose of bail application filed by applicant in respect of Crime No,5/2007 P.S Kamaldero District Naushahro Feroze. On behalf of State S-L P. Abdul Fateh Dharejo S.H.O of P.S. Kamaldero registered above F.I.R. Under S.9(c) Control of Narcotic Substances Act, in respect of an incident, having been taken place at 1340 hours on 18-4-2007 and the F.I.R. Was lodged at 1500 hours on the same day.
2. ' The facts in nutshell as per F.I.R. Are that the complainant along with his subordinate staff was on patrolling in the area. When they reached near High School Kamaldero; a spy informed them; that, a person was carrying Charas in Quenqui Motor-cycle Rikshaw and was coming on protective bund. Police succeeded in intercepting the Quenqui motor-cycle Rikshaw which had been driven by the applicant. The accused/applicant was arrested by the complainant. Upon personal search of the applicant, one plastic bag containing charas was recovered from him. On opening the plastic bag three pieces of charas were found which were weighed in presence of mashirs. Total weight of charas was 1015 grams. Out of them, two pieces having total weight 1000 grams were sealed together and a piece of 15 grams was sealed separately as a sample. A mashirnama of search, recovery and arrest was prepared in presence of mashirs which was signed by the police mashirs. They arrested applicant, Quenqui motor-cycle Rikshw and the charas were taken into custody by the police and were brought at P.S. Where F.I.R. Was lodged.
3. ' The applicant had applied for post arrest bail, before the court of Special Judge C.N.S. Naushahro Feroze, where his bail plea did not find favour with the court and as such dismissed on 8-6-2007 hence this application.
4. ' Mr. Ghulam Shabbir Dayo learned counsel for applicant submits as under:
1. The sample of Charas was not taken from all the pieces but only separate piece of 15 grams had been sent for chemical examination by the police which alone takes the case out of the ambit of section 9(c) of the CNS Act but at the most offence can be of Section 9(a) CNS Act, Section, 9(a) is punishable with two years and does not fall within the prohibitory clause of section 497, Cr.P.C.
5. Learned counsel further submits that the case requires further enquiry whether the applicant has committed the offence u/s 9(c) CNS Act or not.
2. The complainant himself is complainant and the 1.0. Of the case as such has violated Article 18
(4) of Police Order 2002.
6. ' The learned counsel has relied 2007 M.L.D. 1092, 2007 SCM R 1437, 2006 SCM R 1051 and 2007 P.Cr.L.J 89.
7. ' Learned A.A.-G. Has opposed the bail on the ground that applicant is habitual offender and had been involved in number of cases. The Chemical Examiner has given the positive report of the charas. The applicant is not entitled to any concession of bail. He in support of his contention has relied upon the case reported as 2002 PCr.LJ 965.
8. ' I have heard the argument, gone through the case papers as well as the case law cited by the learned counsel and learned AAG. It is admitted position that the samples have not been drawn from all the pieces of Charas recovered but only one piece of 15 grams has been taken as a sample and sent to Chemical Analyser.
9. ' The complainant S-I.P. Had investigated the case in violation of Section 18(4) of Police Order 2002.
10. ' Article 18 (4) reads as under:-
(4) All registered cases shall be investigated by the investigation staff in the district under the supervision of the head of investigation: ' Provided that the Government may, by a special or general order, may entrust investigation of offences under Local and Special Laws as defined in the Pakistan Penal Code and punishable with imprisonment for a term not exceeding three years with or without any other punishment, to the police station staff.
11. ' Tentatively assessing the arguments in the light of position .On record it is very difficult to treat remaining 1000 grams of Charas or Narcotic Substance. Resultantly the quantity. Of Charas prima facie recovered from applicant makes out case of Section 9 (a) CNS Act, punishment with maximum imprisonment of 2 years or with fine or with both which does not fall within prohibition contained in section 497, Cr.P.C. It is also an unresolved and unanswered question that as to why complainant 1.0 who did not belong to investigation section, was interested to conduct investigation without having regard to provisions of Article 18(4), of Police Order 2002. The investigation conducted by S-I.P. Complainant appears to be tinted with malafides and creates serious doubts.
12. ' Reference is made to the authorities cited as in the cases of Nadeem v. The State (2007 M LD 1092), Daulat Khan v. The State (2007 SCM R 1437), Waris Khan and 2 others v. The State (2006 SCM R 1051) and Muhammad Farooq Khan v. The State (2007 PCr.LJ 89).
13. ' In view of above observations and cited case law, the case of further enquiry in favour of accused has been made out. The case law cited by learned AAG cannot be benefited from because learned AAG has not produced any documentary proof in support of his contention as such his objection as to grant bail is without substance. Resultantly I am of the considered view that applicant/accused is entitled to the concession of bail which I extend him subject to furnishing solvent c surety in the sum of Rs,1,00,000 & PR bond in the like amount to the satisfaction of the trial court.