1. ORDER SYED ZAKIR HUSSAIN, J.---The case pertains to recovery of narcotics substance i.e. Charas as reported against in the F.I.R No.152 of 2010 lodged at Police Station Market Larkana against the applicant for the offence punishable under sections 6/9 of C.N.S. Act, 1997 on the allegation that he was found at the relevant time to have been in possession of the charas while he was on his way on motorcycle and the police apprehended him when on patrolling duty from the public place i.e. Road. The facts further show that the search of the person of the applicant was conducted on which the said narcotics substance, weighing 1050 grams, was secured from the fold of his shalwar, 150 grams sample charas was obtained: sealed in parcel, remaining 900 grams was sealed separately and memo was prepared to such effect. The applicant and the property in question were brought to the police station. Where the instant F.I.R was registered. The matter was referred to the Investigating Officer namely A.S.-I. Abdul Ghafoor Chandio.. The witnesses were not taken from the public although available with no legal excuse. The mashirs are police officials taken out of the same police party; the seizing officer is the complainant whereas the mashirs are his subordinates who are not supposed to support their officer.
2. Learned counsel pinpointed that the F.I.R does not carry any detail as to the shape of the secured narcotic substance, for where such substance consists of more than one piece, the sample charas is required to be secured from each of them so as to fix the culprit with each piece. In the instant case, it is hard to construe that the narcotic substance so secured, was one piece in keeping with the quantity or weight thereof.
3. Learned counsel states that the sample charas being 150 grams in weight, falls within the ambit of provision of section 9(b) of the said Act, and for the purpose of grant of bail, the applicant can prima facie, be held responsible to that extent only, and thus the case of the applicant becomes bailable. On merits also, as the learned counsel stated, there appears violation of section 103, Cr.P.C. In the matter. The police officials are the mashirs and part and parcel of the same police party of one and the same Police Station, and therefore, the case merits consideration.
4. There is no expert report available either in the record or with the State Counsel and therefore: it cannot be said that the sample charas, if dispatched to the B expert, for test, has been found as narcotic substance, the benefit of such aspect goes to the accused specially in a case of a tentative assessm ent of like nature, until such lacking is over. Even in a case of remand under section 167, Cr.P.C, a Court is bound to ensure that some substantial material justifying the remand, is available, C else, no one whether his name appears in the F.I.R. Or not, is not open to be subjected to confinement by remand. The charge has been submitted without expert report in the matter the learned trial Court has not taken notice of the fact(s) that the expert report did not accompany the charge-sheet nor was it made available in court otherwise; similarly, no public witness is appearing in the matter; the memo. Does not furnish any plausible explanation thereagainst; the evidence and the story, both do revolve around the police officials; and that the guilt of the applicant is subject to proof. The learned Judge has also not taken the notice of the law already in his knowledge, that every accused is innocent unless proved guilty and similarly, a chain of culprits is legally open to be let free in order to prevent punishment to an innocent person.
5. The bail order surprisingly shows certain observation, strange and unprecedented in nature, since the personal knowledge of the Judge appears to have been inserted thereby, in order to constitute a ground to support the bail rejecting order, which is scandalous to both the accused and the society. Besides, no judge is supposed to be biased in law even in a matter of his on cause, for the law always carries for him, a presumption of fairness in all matters whether pertaining to others or his on people. The prosecution material does not carry the information furnished by the learned Judge in the order in question on his on, which shows that he is personal to the accused and such conduct does not match the judicial norms and status of the learned Judge. The matter may be referred to the Registrar for forwarding a copy of this order to the learned Judge as future guidance, and in public interest at large.
6. Learned State Counsel concedes and does not oppose the request in question.
7. In the circumstances, this bail application is allowed. The applicant is hereby granted bail in the sum of Rs.50,000 with P.R. Bond in the like amount to the satisfaction of trial Court..