1. ' RAJA QURESHI, J.--- Bail has been sought by the applicant in respect of Crime No,52 of 1997 registered at Police Station Kazi Ahmed for offences under section 6/9 under Anti-Narcotics Substances Act, 1997. Briefly the facts of the case are that the applicant was found to be in possession of 2 kilograms of Charas on 24.7-1997 at 15-45 hours near his house situated in Aftab Colony, Kazi Ahmed by S.H.O. Muhammad Suleman Bhutto of Police Station Kazi Ahmed.
2. Consequent to search and seizure, the aforementioned case was registered, investigated and the applicant has been sent to face trial before the Court of the learned Sessions Judge and Special Court Narcotics, Nawabshah vide Sessions Case No,287 of 1997. The learned counsel for the applicant has contended before us that it is apparent on the face of the record that upon search and seizure, as is reflected in the F,1,R. 2 Kgs. Of Charas was weighed, out of which half Kg, was separately sealed for the purposes of sample to be sent for chemical examination and the remaining 1.5 Kgs. Charas was separately sealed. He has invited our attention to the Chemical Examiner's Report which has been placed on record and upon perusal of the same,' it transpires that the said quantum of Charas, reflected on the label of the parcel, which was sent to the Chemical Examiner, is 500 grams of Charas, whereas when the test was performed by the Chemical Examiner, the total weight of the above parcel sent to him are reflected to be having contents of 245 grams only and not 500 grams as are reflected on the label of the parcel sent for chemical examination. The learned counsel has further contended that as per the provisions of section 9(b) of the Control of Narcotics Substances Ordinance, if the contraband in question is less than one Kg. Then the maximum sentence provided is of 7 years not falling within the prohibitory clause to section 497, Cr.P.C. Our attention has further been invited to an earlier F.I.R. Bearing No,5 of 1996 which had been registered on 10-2-1996 under sections 353/34, 504, P.P.C. And section 337- A(ii), Qisas and Diyat Ordinance. In this F.1.R., no challan had been presented against the applicant since its registration i,e, 10-2-1996 and challan was only presented on 13-8-1997 after the present F.I.R. Was registered against the applicant on 24-7-1997. As such mala fides are attributed to the police investigating into the matter against the applicant. The learned counsel has further contended that no private Mashirs were taken for the purposes of searching the applicant nor does the record speak to the effect as to whether any effort was made in such direction to obtain private Mashirs instead of police personnel. The learned counsel has relied upon a reported judgment Farid Khan v. The State 1988 PCr.LJ p.2069 where out of 750 Purries of heroin powder weighing one gram each which were recovered from the possession of the accused but only tow Purries of heroin powder were sent to the Chemical Examiner for Report. Hence bail was granted to the applicant in the referred case by taking into consideration the quantum of contraband which was sent to the Chemical Examiner. Similarly, reliance has also been placed in Abdullah v. The State.
3. 1986 PCr.LI p.899 wherein 15 packets of heroin were stated to have been recovered but only two packets were sent to the Chemical Examiner. Consequently, bail was granted. Further reliance has been placed by the learned counsel on a reported judgment in Nizam Hussain v. The State 1988 PCr.LJ 164 of a Division Bench, where no independent witnesses from the public were associated in the recovery proceedings despite a positive report of the Chemical Examiner and his case was not being hit by the prohibitory clause to section 497(1), Cr.P.C. Bail was accordingly allowed. The learned counsel has further invited out attention to yet another reported judgment Nasir Khan v.
4. The State 1997 M LD p.1473 wherein a Division Bench of the Lahore High Court has observed that under section 9(b) quantity of recovered narcotics which is required to be despatched to the Chemical Examiner, seizing authority at best could retain 1/3rd quantity of the recovered narcotics with them and send the rest of the 2/3rd to the public analyst for test and examination for determination of the proper forum for trial and the quantum of sentence to be awarded to the accused, if found guilty. Further contention of the learned counsel before us is that the applicant has been embroiled on account of police enmity i,e, to the effect that an earlier F.I.R. Was registered which was never challaned but was challaned subsequent to the registration of the present F.I.R.
5. Reliance has been placed on a reported judgment Muhammad Akhtar v. The State 1997 PCr.LJ p.735 wherein it has been held that enmity of the accused with the police was established because of filing of a Constitution petition in the High Court agianst the S.H.O. By the wife of the accused and that the raiding party had violated the mandatory provisions of section 103, Cr.P.C. By not associating any respectable person of the locality in the recovery proceedings. Further, only one gram of heroin out of 17 grams was sent to the Chemical Examiner for analysis and his Lordship was pleased to hold that in the said circumstances, the case would be one of further inquiry and bail was granted accordingly. On the other hand, the learned State Counsel has opposed the grant of bail on the premise that 2 Kgs. Of Charas is stated to have been recovered but the learned Stale Counsel has not been able to justify the action of the police in terms of presentation of challan at a belated stage being subsequent to the registration of the present F.I.R., not associating the private Mashirs through the same may find exception under section 25 of the Narcotic Substances Act of 1997. He has further not been able to explain as to the missing quantum of Charas which was sent to the Chemical Examiner i,e, 245 grams instead of 500 grams.
6. We have dispassionately considered the submissions made before us and we are of the view that, at best the case of the applicant would be in relation to 500 grams of Charas which are stated to have been sent to the Chemical Examiner, which attracts the provisions of section 9(b) providing a maximum sentence of 7 years being less than one Kg. And, therefore, the case of the applicant would require further inquiry. Even otherwise, the prosecution launched against the present applicant smacks of police enmity against him. Consequently, it appears to be a case of further inquiry, hence we direct the applicant to be released on bail in this case on his furnishing one surety in the sum of Rs,5,00,000 (rupees five lac only) and P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court. Application allowed.