1. ORDER MUHAMMAD TASNIM, J.--- Through instant application the applicant/ accused Maqsood Zaman seeks bail in Crime No.103 of 2011 for the offence under sections 6/9 (b-c) of the Control of Narcotic Substances Act, 1997 by Police Station S.I.T.E-B, Karachi.
2. In the first place the applicant/ accused approached the learned trial Court for grant of bail, but the same has been rejected by order dated 16-3-2011.
3. The prosecution story as per F.I.R. Is that on 20-2-2011 S.-I. Raja Nisar Ahmed along with police personnel PC Muhammad Saeed and PC Mujeeb-ur-Rehman was busy in area patrolling on private motorcycle for suppression of crimes. During patrolling he received spy information to the effect that two boys were selling charas near Swat Hotel, Haroonabad, on such information he along with other police personnel reached at pointed place and with the help of spy informer apprehended one person who disclosed his name as Maqsood Zaman son of Muhammad Zatnan and at 1600 hours due to non-availability of private witnesses conducted personal search of the accused in presence of police personnel and recovered charas in the shape of pieces weighing about 1050 grams from a black colour plastic bag holding by the accused in his right hand, which was taken into police custody and sealed at the spot. The accused was duly arrested. On taking further personal search of the accused recovered cash amount of Rs.200 as sale amount, which was also taken into police custody, whereas his other companion, whose name disclosed by the arrested accused as Shah Jahan son of Shireen, succeeded to escape good throwing one piece of charas Weighing about 300 grams, which was also taken into police custody. Thereafter, the case against the accused was registered at police station.
4. Learned counsel for the applicant/ accused in support of his bail application has submitted that at the time of arrest of the applicant/accused neither any private witness was associated as witness nor alleged recovery was made by the police in presence of some private persons of the locality, though the alleged incident took place in a thickly-populated area. He has further submitted that the alleged recovered charas was never weighed but on presumption it was stated that alleged recovered charas is weighed about 1050 grams. Learned counsel further contended that the alleged recovered charas was sent to the Chemical Examiner for examination after delay of about 11-days, which has not been explained by the prosecution and such delay has caused serious prejudice to the present applicant/accused. Lastly he has contended that the prosecution has itself mentioned in the F.I.R that the applicant/ accused is charged for section 619(b-c) of C.N.S: Act, as the case of the applicant/ accused is borderline case, therefore, he is entitled to the concession of bail.
5. Conversely, learned D.P.-G. Appearing on behalf of the State has vehemently opposed the grant of bail to the applicant/accused on the ground that there is ample material evidence available on record which connects the present applicant/accused with the commission of offence. However, she has supported the impugned order of the learned trial Court whereby bail application of present applicant/accused was dismissed.
6. I have heard the learned counsel for the parties and have perused the record of this case.
7. It is well-settled principle of law that at bail stage only tentative assessment has to be made and deeper appreciation has to be avoided. It is an admitted position that no private person was associated as witness at the time of arrest or recovery from the applicant/accused. It is also an admitted position that the alleged arrest was made in a thickly-populated area. It is also an admitted fact that the prosecution has not mentioned as to whether after effecting alleged recovery of charas from the applicant/accused it was weighed by the police, but the F.I.R is silent. It is also an admitted position that the alleged recovered charas was sent to the. Chemical Examiner for examination after delay of about 11-days, which the learned D.P.-G. Was unable to explain that delay during course of the arguments. The case of the prosecution has been set up in the F.I.R.
8. Under section 6/9 (b-c) of C.N.S. Act A and due to the aforesaid admitted position the case of the prosecution requires further inquiry in terms of subsection (2) of section 497, Cr.P.C.
9. The Hon'ble Supreme Court of Pakistan in the case of Hakim Mumtaz Ahmed and another v. The State (PLD 2002 SC 590) while dealing with the issue of citing private witness at the time of recovery has observed that despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused. The allegation against the accused needed further inquiry.
10. Similarly, with regard to the alleged recovery of 1050 grams of charas it has been consistently held by the Hon'ble Apex Court that if the recovery is marginally exceeded 1000 grams it is a borderline case and the Court seized of bail application has to keep in mind maximum sentence likely to be awarded to the B accused. Thus, in view of the dicta laid clown in the case of Noor Ali Khan v. The State (2003 M LD 1637) the present applicant/accused is entitled to, the concession of bail, as his case is also a borderline case. Additionally, the delay in sending the samples to the Chemical Examiner has not been explained by the prosecution.
11. In the circumstances of the case, the case of applicant/accused requires further inquiry, therefore, he was granted bail while passing short order dated 4-5-2011. These are the reasons of the said short order.
12. The observations made herein above are tentative in nature and shall not affect the merits of the case triable by the trial Court.
13. This bail application stands disposed of in the above terms..