The petitioner namely Shafaqat Ali seeks post-arrest bail in case FIR No.462 dated 31.10.2014 offence under Section 9(c) of The Control of Narcotic Substances Act, 1997 registered at Police Station Narang District Sheikhupura.
2. Precisely the allegations against the petitioner are that from his possession Charas weighing 1250 grams was recovered.
3. Heard. Record perused.
4. As per prosecution case the petitioner was apprehended on the basis of suspicion and from a polythene envelope in his right hand, Charas weighing 1250 grams was allegedly recovered.
Record reveals that the petitioner is amputated from his right hand and it was impossible for him to carry the polythene envelop in the said hand. In order to meet the said lapses, though supplementary statements were recorded, to the effect that the petitioner was carrying polythene envelop in his left hand but this circumstance is sufficient to create a reasonable doubt with regard to the alleged recovery. The alleged recovery through attracts the mischief contained in Section 9( c ) of The Control of Narcotic Substances Act, 1997, but in view of above reason the case of the petitioner requires further inquiry and probe in terms of Section 497 (2) of The Code of Criminal Procedure 1898. In this eventuality the bar contained in Section 51 of The Control of Narcotic Substances Act, 1997 cannot be stretched into service.
5. There is yet another aspect that the sample was sent to the office of Chemical Examiner with a considerable delay, which carries no explanation. The petitioner has no criminal antecedents and is behind the bars since 31st of October, 2014, awaiting his trial, which is not in sight in near future.
Thus keeping the petitioner behind the bars would serve no useful purpose. Reliance in this respect can be placed on the case of "JAMAL-UD-DIN alias ZUBAIR KHAN versus THE STATE" (2012 SCM R 573).
6. In the light of above discussion, we thus allow the instant petition and enlarge the petitioner Shafqat Ali on post-arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00,000/- (rupees two lac only) with two sureties in the like amount to the satisfaction of the learned Trial Court.
The petitioner shall appear before the learned Trial Court on each and every date of hearing till the final disposal of the main case.
7. Needless to observe that the above observations are tentative in nature and these are confined to the instant bail petition.
8. Before parting with this order we deem it appropriate to observe that during the proceedings of the instant petition the learned Deputy Prosecutor General pointed out that the sample parcels were sent to the office of Chemical Examiner on 14.11.2014, but the report is still awaited. Thus we directed the Director General, Forensic Science Agency, Punjab, Lahore, to appear personally before this Court and explain as to how many cases of narcotics for chemical analysis are pending in his office and also why the report of Chemical Examiner in the instant case is not prepared inspite of lapse of five months.
9. On 18.03.2015 concerned Section Officer appeared on behalf of the Director General, Forensic Science Agency, Punjab, Lahore, who submitted that the report in this case has already been transmitted to the concerned Police Station on 30.12.2014. We thus directed SHO concerned to appear before this Court and to explain as to why the said report was not forwarded to the concerned Court and why it has been told to this Court that the said report is still awaited. It was informed by the Section Officer in attendance that Director General, Forensic Science Agency Punjab, Lahore, though was directed to appear personally before this Court but according to the Section Officer, he is supervising the task of DNA tests of the dead bodies concerning the incident of Yuhana Abad, Lahore. He also apprised that almost 150 samples are being received daily in their Agency but daily average of Chemical analysis is 80 cases.
10. On the basis of his statement we directed the learned A.A.G to submit report regarding the establishment of some more laboratories in view of Section 34 of the Control of Narcotic Substances Act, 1997. It was further directed that the Director General of the Agency shall appear before this Court on the next date of hearing, who shall submit his report regarding the pendency of the samples lying in the agency. We also asked the concerned Officer of the Home Department of the Government of the Punjab to appear before this Court on 30th of March, 2015.
11. On the said date Director General, Forensic Science Agency, Punjab, Lahore, appeared before the Court and submitted that a letter was written to the Secretary, Home Department for providing manpower at the end of last year. On the basis of his statement we eventually directed learned A.A.G and learned Standing counsel, who were in attendance on Court's call were directed to procure the attendance of the Secretary Narcotics, Government of Pakistan, Islamabad and the Home Secretary (Punjab) Lahore before this Court alongwith a report that what action has been taken at their respective ends on the application filed by the D.G. PFSA for providing manpower to the said laboratory, in view of Sections 34 and 35 of The Control of Narcotic Substances Act, 1997, and the case was adjourned for 13.04.2015.
12. On 13.04.2015, Joint Secretary NDC, appeared in the Court and submitted that up till now 87 posts of both scientists and Lab Assistants have been advertised and this recruitment will be completed up till 30.06.2015. He also submitted a report in this behalf which was made part of the record. In view of his statement he was directed to complete the said process till 30th of June, 2015, and he was relieved from his appearance. However, Secretary Narcotics, Federal Government sought time for obtaining instructions from the concerned quarters regarding the establishment of the Forensic Science Laboratory, so on his request the case was adjourned for today.
13. Today report was submitted on behalf of Secretary, Narcotics Control Division and the Joint Secretary Control Division attended the proceedings alongwith the learned Standing counsel. In the report submitted by the Secretary, Narcotics Control Division he has candidly conceded that it is the responsibility of the Government to notify Narcotics Testing Laboratories under Section 34 of The Control of Narcotic Substances Act, 1997. It is stated that the said Division has directed the Anti- Narcotics Force for preparation of PC-I for establishment of one Federal Narcotics Testing Laboratory at Islamabad/ Rawalpindi and four Narcotic Testing Laboratories at Regional Directorates within 30 days for submission to the Planning & Development Division and Finance Division. Moreover the said Division has already taken up the case with the Government of Punjab NCD vide letter dated 20th of February, 2015 for transfer of the equipment alongwith trained staff to ANF for the closed Benazir Bhutto Hospital (BBH) Narcotics Testing Laboratory Rawalpindi, for its proper utilization.
14. The Joint Secretary in attendance states that in addition to this, the Government has also requested to the donor countries/organizations, e.g, China, Russia, KSA and UNODC to help for the establishment of Forensic Laboratory for Research and Development alongwith Narcotics Testing facility. China has committed to provide the forensic testing equipment which is likely to be delivered by the end of this year. It has been undertaken by the Joint Secretary in attendance that these steps will mature and complete by the end of this year positively.
15. With this undertaking for the time being, he is relieved with the direction to take all necessary steps for discharging the duty enshrined in Section 34 of The Control of Narcotic Substances Act, 1997.
16. Needless to observe that in terms of Section 34 of The Control of Narcotic Substances Act, 1997, The Federal Government and Provincial Governments are bound to establish and notify the Narcotics Testing Laboratories within their respective domain but since 1997 no positive steps have been taken in this regard. Both the Federal Government as well as the Provincial Government are directed to take all the necessary measures for establishing the Narcotics Testing Laboratories in terms of Section 34 of The Control of Narcotic Substances Act, 1997, at the earliest.
17. With these observations the instant petition is disposed of.
18. Office is directed to transmit a copy of this order to the Secretary, Narcotics Control Division, Federal Government Islamabad, as well as Home Secretary, Punjab, for compliance.