1. ORDER MUHAMMAD TASNIM, J.---Applicant Waheed Raza Pathan has filed this application seeking post-arrest bail, who is wanted in F.I.R. Crime No.74 of 20/6 Police Station, 'B' Section, Khairpur registered for an offence under section 9(a) and (c) Control of Narcotic Substances Act, 1997 and Articles 3 and 4 Prohibition (Enforcement of Hadd) Order 1979.
2. Prosecution story is that the case was initiated on an F.I.R. Lodged, at the instance of complainant SIP Tufail Ali Bhutto on 23-4-2010 at 1530 hours alleging therein that they were available at the Police Station and they received spy information that famous notorious intoxicant dealer Ashfaque Ahmed Pathan and Waheed Rana Pathan (applicant) having Chars, Liquor, Heroin and unlicensed weapons are coming by the bank of Seepage towards south and on such information police party left the P.S. And at about 1400 hours they saw two persons coming by bank of Seepage drain towards Luqman out of them one person was having one bag and another person was having small bag when they reached the police party the were asked to stop on which they tried to run away, they were followed and out of them one person at the distance of 20 paces along with bag while another person succeeded to run away and during running he stumbled and his bag slap from his hand and fell down, who was identified by A.S.-I. Bashir Ahmed and A.S.-I. Talib Hussain to be Ashfaque Ahmed Pathan. The apprehended person disclosed his name to be Waheed Raza Pathan (applicant) and from his left side folder of Shalwar one revolver 6 fire round number erased in working condition which was opened in which one bullet was contained. The police party opened the secured bag which containing 2 pieces of Charas one being big and other one small and 2 half bottles of were vat-1 charas was weighed which was 1200 grams and 100 grams from each piece total 200 grams was separated as sample which was sealed separately whereas 1000 grams were sealed separately and both the bottles of were were sealed; hence the F.I.R. Was lodged as stated above.
3. The learned counsel for the applicant has submitted that from very initiation of the proceedings against the applicant by the S.H.O. And in the entire transaction no private person was associated.
4. She has submitted that allegedly 1200 grams of Charas was recovered from the present applicant as per F.I.R. Which was registered on 23-4-2010 but the samples to the Laboratory were sent by the police on 6-5-2010 much after unreasonable delay which has not been explained by the prosecution. She has further submitted that as per F.I.R. The police acted on receipt of spy information, however no private witness was associated in the process. She also submitted that all the witnesses in the case are police personnel. She further submitted that the case has been planted upon the present applicant and no recovery whatsoever was made from the present applicant and recovery from the present applicant is planted by the police just to implicate the applicant in the crime. She has invited my attention to the press clipping dated 24-4-2010 of Daily KOSHISH wherein S.H.O. Who is the complainant has stated that along with police party he had raided den of the present applicant and has recovered the contraband goods whereas in the F.I.R.
5. The story is entirely different. She stated that on this ground alone bail can be extended to the present applicant as there is contradictory statements by the complainant at 2 places. She further stated that as per F.I.R. Two pieces of Charas were recovered from the applicant but those pieces were not weighed separately but the entire substance recovered from the applicant has been shown 1200 gram in the F.I.R. She also stated that this is a illegality on the part of the police and benefit thereof be extended to the present applicant. In support of her above contentions, she has placed reliance on the case of Hakim Mumtaz Ahmed v. The State (PLD 2002 SC 590), Yar Muhammad v. The State (PLD 1997 Quetta 31), Hamza v. The State (2000 PCr.LJ 1360) and Hakeem Jamali v. The State (2009 PCr.LJ 695).
6. On the other hand learned A.P.-G. For the State has invited my attention to the provisions of CNS Act so also the rules made thereunder. He has argued that provisions of section 103, Cr.P.C. Are not applicable in the cases of CNS. He has further argued that the bail of the present applicant was rightly rejected by the learned Court below and the entire material and the law on the, subject were taken note of by the said Court. He said that in view of recent announcement of honourable Supreme Court of Pakistan in the case of Tariq Mahmood v. The State (PLD 2009 SC 39) bail may not be granted to the present applicant. He has relied upon the judgment reported as 2010 YLR 975 in support of his submissions that Press Clipping alone does not entitle the applicant for concession of bail.
7. I have heard the arguments of the learned counsel appearing for the parties and have gone through the material placed before me so also the judgments cited at the bar.
8. It is settled law that at bail stage deeper appreciation of the evidence cannot be gone into but only it is to be seen as to whether the applicant/accused is prima facie connected with the alleged offence or not. In the present case it is an admitted position on record that police acted on the spy information. In all fairness and in view of the honourable Supreme Court Judgments referred to above police must have associated some private person as witness during the entire process of raiding and recovery. It is also an admitted position that F.I.R. Was registered on 23-4-2010 whereas sample of the substance was forwarded to the Laboratory On 6-5-2010 and such delay has not been explained by the prosecution. To justify the delay no material was brought to my notice by the learned A.P.-G.With regard to the contention of the learned counsel that only police personnel are witnesses in this case, this argument alone does not entitle the present applicant for grant of bail. However, if this aspect is considered along with other material, which are available in this case, the initiation of proceedings by the police on receipt of spy information they would have associated some one from the general public during the entire process. Additionally the police must have acted promptly in terms of rules made under CNS Act and would have forwarded the substance to the Laboratory within the reasonable time but such steps were not taken by the police and samples were forwarded to the Laboratory on 6-5-2010 delay of which has not been explained. There is another aspect of the matter that prosecution story in the F.I.R. Is that the present applicant was apprehended from the bank Seepage Drain towards Luqman whereas in the Press Conference the same S.H.O. Who is complainant stated before the Press that he had raided the den of the applicant from where the alleged substance was recovered. Since there is delay in sending the samples to the laboratory for chemical examination and there is unexplained delay in the process so also no private persons were associated by the police and that the place of wardat is contradictory at two places it creates doubt. It is the consistent view of the superior Courts even if doubt is found at the bail stage, benefit thereof be extended to the accused.
9. In the case of Mumtaz Ahmed (supra) the Honourable Supreme Court of Pakistan has held as under:-- "Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused. Allegations against accused, thus, needed further enquiry."
10. In the case of Hamza (supra) the learned Division Bench of this Court while dealing with the issue of delay in sending samples to the Laboratory has held as under:-- "The perusal of the report of Chemico Bacteriological Laboratory and Chemical Examiner to the Government of Sindh, Karachi shows that the alleged recovered narcotics was sent for Chemical analysis on 16-11-1995 whereas the alleged recovery was made on 4-11-1995. The delay in sending the property was not explained by the prosecution particularly when the Chemical Laboratory is situated in Karachi."
11. Similarly a learned single Judge of this Court in the case of Hakeem Jamali (supra) while dealing with the issue of sending samples of Charas to the Laboratory for chemical examination has held as under:-- "The learned State counsel has failed to account for delay in sending the samples to Chemical Examiner. Besides it, police papers are also silent as to why these samples were sent with such delay to Chemical Examiner. There is no explanation available with the State counsel to show that whether these samples were kept in safe custody or not and who was responsible for their safe custody for such long period of 12 days. In such situation, the dictum laid down in case law cited by the applicant's counsel reported as Mouladad alias Baba v. State 2005 MLD 452 (Karachi) is attracted."
12. On the point of considering Press Clipping at the bail stage, the learned Division Bench of Quetta High Court in the case of Yar Muhammad (supra) has observed as under:-- "The press clipping though not admissible without formal proof yet can be referred while tentatively examining various factors connected with commission of offence. Undisputedly in this case express mention of applicant's name was made in the Murasila immediately recorded at the spot therefore, said press report will not by itself have any legal impact of disproving material on record."
13. Following the rule laid down by the superior Courts in the judgments cited hereinabove, I had allowed this application and admitted the applicant to bail subject to his furnishing solvent surety in the sum of Rs.200,000 (Rs. Two lac) only and P.R. Bond in the like amount to the satisfaction of the learned trial court by a short order dated 29-7-2010 and these are the reasons for the same.
14. The observations made in this order are tentative in nature and shall not have any bearing upon the pending proceedings.
15. Appllication stands disposed of.