1. ' This bail application has been moved on behalf of applicant/accused Hadi Bux who is facing trial in the Court of Special Judge established under the Control of Narcotic Substances Act, 1997, Mirpurkhas in Special Case No,5 of 1999 for having been found in possession of 1200 grams of Charas on 24-4-1999 at 7-00 p.m. By a police patrol party while patrolling on Link Road Daulat Leghari near Sim Nala. The applicant/accused was spotted who on seeing the police party tried to run away but he was caught and from his personal search one T.T. Pistol loaded with 4 bullets and 1200 grams of Charas was recovered which was secured under a Mashirnama prepared on the spot. 50 grams of Charas was separately sealed for sending the same to the chemical analyser.
2. Applicant/accused was taken to Police Station Taluka, Mirpurkhas where an F.I.R. Was lodged by S.H.O. Mehboob under section 9 of the Control of Narcotic Substances Act. After conclusion of the investigation the accused was challaned as stated above.
3. ' A bail application was moved on behalf of the applicant/accused before the Special Judge who rejected the same by his order, dated 14-7-1999. The reason given for rejection of the bail application was that 1200 grams of Charas was recovered and the offence was punishable with death or imprisonment for life as a result of which grant of bail to the applicant/accused was barred by section 51 of the Control of Narcotic Substances Act. Hence this bail application.
4. ' We have heard the arguments of Messrs Muhammad Yousuf Leghari and Agha Khuda Bux, the learned Advocates for the applicant/accused and the State and have perused the material on record as well' as the relevant provisions of law.
5. ' Mr. Agha Khuda Bux has vehemently opposed the bail application on the ground that 1200 grams of Charas was recovered from personal search of the applicant/accused which brought the case of the appliGant/accused under section 9(c) of the Control of Narcotic Substances Act, which provides a sentence of death or imprisonment, for life and further submitted that in view of the provisions of section 51 of the Control of Narcotic Substances Act, an accused who is prima facie found guilty of an offence punishable with death has been disentitled from being enlarged on bail.
6. ' Mr. Muhammad Yousuf Leghari on the other hand has raised the following grounds in support of the bail application; firstly, that the facts and circumstances of the case led to a presumptions that neither the bulk Charas nor the sample of 50 grams was weighed on the spot nor the same was sealed on the spot; secondly, that Seizing Officer did .Not make any effort to associate the persons present on the spot or residents of the locality; thirdly, that the sample of the Charas made for forwarding the same to the Chemical Examiner was admittedly of 50 grams but the. Chemical Examiner on weighing the sample found the Charas to be 59 grams which suggests that some other sample was sent to the Chemical Examiner; and lastly, that the sample was forwarded to the Chemical Examiner after about 4 months and there is no explanation as to whether the same was lying during all this '4 months.
7. ' We have considered the arguments advanced by the learned counsel for the parties. We had asked Mr. Agha Khuda Bux to produce the Mashimama for our, perusal, inasmuch as from perusal of the F.I.R. And the police file we were of the view that no Mashirnama was prepared regarding the alleged arrest of the applicant/accused, seizure and sealing of the Charas. On going through the police file Mr. Agha Khuda Bux stated that no Mashimama is available therein which proves our apprehension that the police party had not prepared any Mashirnama either on the spot or subsequently, and it has in its possession no documentary evidence in support of the allegations of recovery of 1200 grams of Charas from the applicant/accused. In view of this the prosecution case is very adversely affected as grave suspicion and doubt occurs in the mind with regard to the veracity of the prosecution case. Another ground raised by Mr. Muhammad Yousuf Leghari was the delay in sending the sealed sample to the Chemical Examiner. In this connection reference may be made to the case of Abdul Majid v. The State reported in 1998 SCM R 458 wherein a delay of 2 months in sending the sealed narcotics to the Chemical Examiner without there being any plausible and reasonable explanation, was considered to be a circumstance adverse to the prosecution case and was favourably considered in allowing bail to the applicant/accused.
8. Another ground raised by Mr. Muhammad Yousuf Leghari was the failure of the police party to call or associate the persons either present on the spot or of the locality with the alleged arrest, recovery and seizure or to give a plausible explanation for not doing so. The prosecution has not advanced any ground as to why S.I.P. Mehboob did not call for the persons present or the residents of the locality for associating them with the alleged arrest, recovery of seizure. In this connection reliance is placed on the case of State through Advocate-General, Sindh v. Bashir and others reported in PLD 1997 SC 408. Reliance is also placed on the case of Mst. Fahmida v. The State reported in 1997 SCM R 947 wherein association of one person of the locality with the alleged apprehension, search, recovery and seizure was not considered to be sufficient compliance of the procedure for making search.
9. Upon the above discussion we are of the view that the material in possession of the prosecution' does not prima facie make out a case against the applicant/accused punishable with death or transportation for life and the matter requires further inquiry as envisaged in the case of Hafiz Khuda Bakhsh and another v. The State reported in PLD 1988 SC 413. It is also an admitted principle that when a case against the accused is of further inquiry then the embargo contained in section 497, Cr.P.C. Barring grant of bail to the applicant does not apply. On the same analogy the bar contained in the section 51 of the Control of Narcotics Substances Act would not be applicable in a case of possession and recovery of narcotics if the evidence in possession of the prosecution does not prima facie make out a case punishable with death. Accordingly, we hold that the case of the applicant is not hit by the embargo contained in section 51 of the Control of Narcotics Substances Act and on the facts and circumstances enumerated above and the law referred hereinabove he is entitled to be enlarged on bail.
10. ' Accordingly, bail is granted to the applicant/accused subject to his furnishing a security in the sum of Rs,2,00,000 (two lacs) and P.R. Bond in the like amount to the satisfaction of the trial Court.