INAYAT ULLAH vs THE STATE

' MALIK HAMID SAEED, J.--- In this case the police has allegedly recovered 3-1/2 Kgs. Of Charas (Pukhta) and 250 grams of Charas (Garda) from the possession of Inayatullah Khan during the course of Naka Bandi made on 2-9-2004 at Namak Mandi Chowk, Peshawar. The accused Inayatullah Khan was accordingly booked under section 9, C.N.S.A. Vide F.I.R. No,397, dated 2-9- 2004 in Police. Station Shah Qabool, Peshawar. Out of the recovered contraband, 4 grams from Pukhta Charas and 4 grams of Garda Charas were separated in Parcels Nos.1 and 2 for chemical analysis. The accused/petitioner applied for bail before the learned Sessions Judge, Peshawar, but the learned Additional Sessions Judge-III, Peshawar vide his order, dated 28-9-2004 has refused bail to the accused/petitioner, hence this application for bail.

2. On the previous date of hearing, the learned counsel for the petitioner had contended that according to the report of the Laboratory, the sample was received on 17-9-2004 i,e, about 15 days of the registration of the case and while placing reliance on Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001, he had vehemently argued that the Seizing Officer did not send the sample to the Public Analyst within 72 hours, hence has violated the Rules, making the case against the accused/petitioner as that of further inquiry. The S.H.O. Who was present in the Court verbally informed the Court that the sample was delivered to the Moharrir of the police station for onward dispatch to the Laboratory on the very day of the seizure. Thus, he was directed to produce the Moharrir who dispatched the sample and the constable who took the same to the Laboratory before the Court.

3. Today, the Moharrir and constable concerned appeared before the Court and produced the letter vide which the samples were forwarded to the F.S.L. Laboratory. Perusal of the said letter reveals that although the same were sent to the Laboratory on 13-9-2004, yet received in the Laboratory on 17-9-2004, as the letter is having the date of 13-9-2004 and also the receipt of the Laboratory dated 17-9-2004. In these circumstances, if the date of 13-9-2004 is taken into consideration, even then it can be said that the samples have been sent to the Laboratory after about 12 days.

' Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001 provides that:-- "(2) Samples may be dispatched for analysis under the cover of a Test Memorandum specified in Form-I at the earliest, but not later than seventy-two hours of the seizure. The envelope should be sealed and marked "Sec-et Drug Sample/Test Memorandum."

' The argument of the learned counsel for the petitioner in the circumstances is forceful as the samples in question have been sent to the Laboratory with sufficient delay without any explanation on record as to in whose custody the parcels in question were lying for 12 days. The dictum of the august Supreme Court of Pakistan in the case reported in PLD 1972 SC 277 is that for purposes of bail, law not to be stretched in favor of prosecution and the benefit of doubt, if any arising, must go to accused. It is also well-established principle that while considering the question whether a case fell within the prohibition contained in subsection (1) of section 497, Cr.P.C. The Courts are not supposed to keep in view only the maximum sentence provided in the relevant law. If in a particular case, the Court is in a position to come to a conclusion on the data placed before it even at bail stage, that the prosecution case taken to its extreme would not entail the maximum punishment, it would go out of the prohibition.

5. In the peculiar circumstances of this case, when the parcels staining sample .Of the recovered contraband were not sent to the Laboratory as per period prescribed in the C.N.S. (Government Analysts) Rules, 2001 and when again the samples in question were sent to the Laboratory on 13-9- 2004 by hand through constable Bakht Zeb, but the same were not delivered on 13-9-2004 and instead delivered it on 17-9-2004 (again lying with the constable for 5 days), makes the case against the accused/petitioner as that of further inquiry, entitling him to the concession of bail under subsection (2) of section 497, Cr.P.C.

6. For the aforesaid reasons this application is accepted and the accused/petitioner is allowed bail, provided he furnishes bail bonds in the sum of Rs,3,00,000 with four sureties each in the like amount to the satisfaction of the Illaqa/Judicial/Duty Magistrate. The sureties should be local and men of means.