1. ' MUHAMMAD TASNIM, J.---Granted.
2. Granted subject to all just exceptions.
3. Applicant is arrested in Crime No.402 of 2011 registered under section 6/9(c) C.N.S. Act, 1997, at Police Station Korangi Industrial Area, Karachi. In the first place the applicant applied for bail before learned Special Court-II (C.N.S.), Karachi, but his bail application was dismissed by the learned trial Court per order dated 27-5-2011. Feeling aggrieved against the aforesaid order present bail application has been filed.
2. ' The facts as set out in the F.I.R. Are that on 26-4-2011 the complainant SIP Syed Zahid Hussain Shah along with six staff members was busy in patrolling in the area received spy information that at Ground Sector 8/D, Korangi Industrial Area, Karachi. One person is available alongwith charras, on such information the complainant party reached at the pointed place at 0040 hours and on pointation of spy apprehended one person who- on inquiry disclosed his name as Shah Muhammad alias Shaho son of Agha Jan. He was having a plastic shopper of green colour containing charras weighing 1-1/2 kgs. Consisting of four patties each weighing 250 grams and one patti of half kg, On personal search cash amount of Rs.60 were also recovered from right side pocket of his shirt. Recovered charras was taken into custody and sealed and accused was arrested.
3. ' Learned counsel for the applicant has submitted that there is delay Of eleven days in sending the sample to the Chemical Examiner which violates the provisions of Rule 4 of Control of Narcotic Substances (Government Analysts Rules) 2001. He also submits that delay in sending sample has not been explained by the prosecution. He also says that delay in sending sample has seriously prejudice the case of applicant as according to him due to delay the alleged recovered substance has been tampered by the police. He further submits that recovered substance was not weighed on the spot approximately it was stated in F.I.R. That the recovered substance is about one and a half kilograms. Learned counsel says that in the first place no recovery was effected from the applicant, secondly it is a borderline case and it is yet to be decided as to whether case falls under.
4. Section 6/9-B or 6/9-C of C.N.S. Act, 1997. Learned counsel says that there is doubt in weight of the alleged recovered substance and mashirname of recovery also bears the signatures of police personnel only. Learned counsel says that it is a fit case of further enquiry. In support of his contentions learned counsel for the applicant has relied upon the case of TAJ ALI KHAN V. THE STATE (2004 YLR 439).
5. ' On the other hand, learned A.P.-G. Says that applicant was arrested on the spot and the alleged recovery was made from him. He further says that it is night time, no private witness was available on the scene. However, he could not justify that delay in sending the sample for chemical examination.
6. ' I have heard the learned counsel for the parties and have perused the record.
7. ' A tentative assessm ent of the record shows that in the F.I.R. Weight of alleged recovered charras has been proximately shown to about one and a half kilograms. Learned A.P.-G. Has confirmed that the alleged recovered substance was never weighed at the time of preparation of mashirnama.
8. Since there is delay of eleven days sending the sample which has not been explained and it is yet to be determined as to whether the quantity of 500 grams marginally exceeds the upper limit of 1000 grams, therefore, being a borderline cast between clause 'B' and 'C' of section 9 C.N.S. Act. In the case of HAMZA V. THE STATE (2000 PCr.LJ 1360) a 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."
9. ' Similarly, a learned Single Judge of this court in the case of HAKEEM JAMALI V. THE STATE (2009 PCr.LJ 695), while dealing with the issue of sending samples of Charras 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."
10. ' In my view this case requires further enquiry in terms of subsection (2) of section 497, Cr.P.C.
11. Accordingly, the present applicant is admitted to bail on his furnishing solvent surety in the sum of Rs. 1,00,000 (Rupees one hundred thousand) with P.R. Bond in the like amount to the satisfaction of learned trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.