FIAZ AHMAD ANJUM JANDRAN, J. Through instant petition under Section 497 Cr.P.C, petitioner (Haider) , seeks post-arrest bail in F.I.R No. 56, dated 07.02.2021, registered under Section 9-C of the Control of Narcotics Substances Act, 1997, at Police Station Shalimar , Islamabad.
2. Briefly , the allegations set-forth in the F.I.R are that on 07.02.2021, at about 02:40 p.m, petitioner was apprehended from Green Area, opposite Street No. 73, Sector F-11/1, Islamabad, on the basis of spy information with a shopping bag containing 1 164 grams heroin .
3. Learned counsel for the petitioner contends that case of the petitioner falls within the parameters of borderline criteria; that there is delay in sending sample parcel for chemical analysis; that petitioner is first offender; that investigation is complete and he is no more required for further probe, therefore, entitled to the concession of bail.
Learned counsel relied upon case law reported as 2016 P .Cr.L.J 1315 (Islamabad).
4. Conversely , learned State Counsel contends that petitioner was caught red handed by the police while in possession of 1 164 grams heroin, therefore, not entitled to the concession of bail.
5. Arguments heard, record perused.
6. Record reveals that allegedly 1164 grams heroin in white colour shopping bag was recovered from the possession of petitioner . The quantity of 1 164 gram is in excess of marginal side of borderline criteria.
7. In such like cases, the Hon'ble Suprem e Court of Pakistan granted bail on the basis of borderline criteria and in this respect reliance is placed upon cases of "Aya Khan and another v. The State" (2020 SCMR 350) and "Saeed Ahmed v. The state etc" (PLJ 2018 SC 812) wherein 1100 and 1350 grams substance recovered, marginally exceeds 1 K.G. and benefit of bail was extended to the accused. In another judgment reported as (Naimatullah and another v. The State) , (2017 MLD 1097 ) it was held that in cases where recovery of narcotic substance does not exceed the limit between 900 to 1500 grams, case is of border line between clauses (b) and (c) of CNS Act, 1997.
8. Perusal of record reveals that 1164 grams heroin was recovered from the petitioner/ accused on 07.02.2021 and sample separated from it for chemical analysis was sent to the N.I.H on 12.02.2021, with a delay of five days for which no plausible explanation has been advanced, though they are under duty bound to transmit the sample parcel within 72 hours and in this regard guidance is sought from "Muhammad Shafiq V. the State" (2016 P.Cr.L.J. 1315) , wherein it has held that "lapse on the part of the police in sending the contraband substance for chemical analysis within the stipulated period has made the case of the accused that of further inquiry ."
9. Moreover , investigation to the extent of petitioner has already been completed and he is no more required for further probe. In such a situation, further incarceration of the petitioner would serve no useful purpose and the bail cannot be withheld as a punishment. In this respect reliance is placed upon "Nanzoor and 4 others v. The State"
(PLD 1972 SC 81 ) wherein the Hon'ble Apex Court held that:- "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reason able grounds appear to exist to disclose their complicity . The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
10. The petitioner retains no history of like nature offence and this fact has been testified by the Investigating Officer, present in the Court, therefore, being first offender , considering the quantity of narcotics substance recovered, his case is considered for grant of post-arrest bail.
11. In line with above discussion/findings, tentative assessment of the available record guides to hold that the quantity of recovered substance is in excess of marginal side of borderline criteria, sample separated for chemical analysis was sent to the N.I.H with a delay of (05)five days, petitioner retains no criminal record, is a first offender , investigation to his extent has already competed while there is no chance that trial will be concluded in coming future days, hence case for grant of post arrest bail is made out.
12. Consequently , for what has been discussed above, instant bail petition is allowed, petitioner (Haider) is admitted to post-arrest bail subject to furnishing bail bonds in the sum of Rs. 100,000/- (Rupees one Lakh) with one surety in the like amount to the satisfaction of the learned Trial Court.
13. Needless to mention that this is tentative assessment for the purpose of this petition only, which shall not affect/influence trial of this case in any manner .