1. ' SYED SHAFQAT ALI SHAH MASOOMI, J.---By this application, the applicant has sought post arrest bail in Crime No,07 of 2009 registered with Police Station Valeed Larkana for an offence under sections 6/9 of Control of Narcotic Substances Act 1997.
2. ' Briefly the facts of the prosecution case are that on 9-1-2009 ASI Asghar Ali Kango of Police Station Valeed Larkana lodged report on behalf of the State, alleged therein that the present applicant/accused during the commission of offence in Crime No, 4 of 2009, under sections 324, 353, P.P.C. And 13 DAO, while keeping with him 1140 grams of charas has committed offence punishable under section 6/9 Control of Narcotic Substances Act, 1997.
3. ' In the main case, the facts of the prosecution case are that on 9-1-2009 at 1415 hours the complainant ASI Asghar Ali Kango lodged F.I.R. On behalf of the State at Police Station Valeed Larkana alleging therein that on 9-1-2009 he along with his subordinate staff while on patrol duty when reached at link road leading towards Miro Khan Nakka, they noticed three persons coming on 125 motorcycle they were suspected, therefore the police party in order to check, signaled them to stop on which they while getting down from their motorcycle took out pistols from their folds and started firing upon police party. The police party retaliated the same. The encounter continues for about ten minutes. One of the culprits succeeded to escape, while two of them were tactfully apprehended by the police party. One of them was captured along with pistol which was taken into custody by police, the same was containing with two live bullets, and the said captive on enquiry disclosed his name to be Akbar Malgani and on his personal search a plastic shopper as recovered from his fold, it was containing charas in shape of pieces and on weighing it became 1060 grams, out of which 100 grams were sealed separately for chemical analysis. Another captive disclosed his name to be Suhrab Sandano and on his personal search charas in shape of pieces was recovered from his jacket, which on weighing become 1140 grams, out of which 100 grams were sealed separately; cash of rupees one hundred was also recovered from his possession. All this Was done in presence of mashirs, namely, PC Mumtaz Ali and PC Hubdar Ali. The motorcycle was also seized under section 550, Cr.P.C. Accused Akbar Malgani disclosed about the pistol recovered from his possession to be unlicensed one. The complainant prepared such mashirnama on spot with signatures of mashirs named above. The apprehended accused along with case property were then brought at Police Station where complainant lodged F.I.R. To the above effect.
4. ' The applicant moved bail plea in the trial Court which was dismissed vide order dated 16-2-2009.
5. It is mainly contended by Mr. Aftab Ahmed Gorar, counsel for the applicant that the applicant is innocent and he has falsely been implicated in this case by the police; that the F.I.R. Is delayed for about two hours, while distance between place of wardat and police station is only three kilometers but no plausible explanation has been furnished for such delay; all the prosecution witnesses are police personnel of the same police station and are subordinates of complainant. He has further argued that out of alleged recovery of 1140 grams of charas, only 100 grams were sealed separately for chemical analysis and the report if comes in positive that will only be in respect of 100 grams which falls under section 9(b) which does not fall within the prohibitory clause of section 497, Cr.P.C. He further argued that the alleged charas was in pieces but the number of the pieces has not been mentioned either in the F.I.R., or in mashirnama of recovery, and it has also not been mentioned that the same was taken out from the each piece of the alleged recovered charas. He further submitted that the applicant has been granted bail in connected main case vide Crime No, 04 of 2009 of Police Station Valeed, by the learned 2nd Additional Sessions Judge, Larkana vide his order dated 31-1-2009. In support of his submissions, learned counsel for the applicant has relied upon the following citations:--
(1) Imtiaz Ali v. The State (2006 M LD 1961)
(2) Nadeem v. The State (Nadeem v. The State) (sic).
(3) Muhammad Nawaz v. The State 2007 M LD 1846.
(4) Unreported case in Cr. B.A. No, 528 of 2008 re: Hakim Ali v. The State decided by this Court.
6. ' Learned State Counsel has supported the impugned order and opposed the grant of bail.
7. ' I have carefully considered the arguments advanced by the learned counsel for the parties and properly assessed the material placed on record. It appears that 1140 grams of charas was allegedly recovered from the applicant/accused in the shape of pieces while only 100 grams were taken out of the entire recovered material for the purpose of Chemical Analysis but it is not mentioned that as to whether the sample was taken from each piece or only from one of the same therefore, no conclusive finding could be recorded that all the pieces were of A contraband narcotics, hence the proper and final finding is yet to be recorded at the trial. Besides all this, no weapon was recovered from the applicant/accused nor he caused any injury to anybody and that he has already been granted bail in main case in Crime No, 4 of 2009 of Police Station Valeed by the learned 2nd Additional Sessions Judge, Larkana vide order dated 31-1-2009.
8. ' The learned counsel has relied upon cases very identical to the case in hand. In the case of Imtiaz Ali (supra), learned Division Bench of this Court held that the contents of the F.I.R. And the mashirnama of recovery and arrest clearly mention that 20 kilograms of charas were allegedly recovered from the possession of the applicant in the shape of "Patties" but the number of patties is not mentioned either in the F.I.R. Or in the mashirnama. The same further stated that a quantity of 250 grams charas was taken out of the entire recovered material of 20 kg for the purpose of Chemical Analysis. Bail was granted. In the case of Muahammad Nawaz v. The State 2007 M LD 1846, the accused was found in possession of 10 kgs charas in the shape of lOg packets packed in the plastic bags each containing one kg charas out of which only one kg was sent to the Chemical Analyser while no samples out of remaining 9 kgs charas were sent. The authorities for and against were cited therefore, it was held by learned Full Bench of this Court that where conflicting views have been given by the Hon'ble Supreme Court then the one beneficial to the accused should be followed.
9. Since, in the case in hand, out of the entire contraband alleged recovered from the applicant/accused only 100 grams were sealed separately for sending it to Chemical Analyser therefore, at the most case against the applicant falls under section 9(b) of C.N.S. And it carries punishment for 2 years. It has been stated that even the above sample taken out was not sent to the Chemical Analyzer by the Investigating Officer.
10. ' However, the observations made hereinabove are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of trial Court which is free to appraise the evidence strictly according to merits of the case.
11. In the given circumstances, the case against the applicant/accused calls for further inquiry. The applicant/accused is granted bail on furnishing solvent surety in the sum of Rs, 100,000 and P.R.
12. Bond in the likd amount to the satisfaction of trial Court.