ABDUR RASOOL vs THE STATE

ORDER

1. ' SYED MAHMOOD ALAM, J.--- This bail application is directed against the order, dated 6-6-2008, passed by the learned Sessions Judge/Special Judge, Narcotics, Shikarpur, in Crime No,70 of 2008 of Police Station Lakhi Ghulam Shah, under section 9(c) of the Control of Narcotic Substances Act, 1997, whereby the bail application of the applicant was dismissed.

2. ' Precisely, the case of the prosecution is that on 15-4-2008 the complainant Inspector Ali Bux Dhakan of Police Station Lakhi Ghulam Shah along with his subordinate staff during patrolling on a tip-off, ht 1030 hours, apprehended present applicant from the bus stop of village Dodo and recovered two kilograms of Charas in the shape of 73 rods/bars. Ultimately, such F.I.R. Was registered.

3. It is, inter alia, contended by learned counsel for the applicant that the police, despite information well in advance, has failed to associate private Mashirs. He further contended that out of the total two kilograms of Charas, only 110 grams were sent for chemical analysis, therefore, at this stage he can only be held responsible for 110 grams and not the entire property, as such, the offence at the most would be covered by section 9(b) of the C.N.S. Act, which does not attract the bar contained in section 51 of the Control of Narcotic Substances Act. He further contended that the S.H.O. Ali Bux is the complainant in this case and he has himself acted as Investigating Officer, which casts serious doubt upon the veracity of investigation conducted by him. Lastly, the IA learned counsel contended that the applicant's father, namely Ghulam Rasool had made an application to D.-I.G.P.

4. Larkana against complainant Inspector Ali Bux and others and such enquiry was conducted by S.P.O. Lakhi Ghulam Shah, which proved that the applicant was arrested by S.H.O. Ali Bux and others and on failure of the applicant and his father to pay Rs,50,000 to the S.H.O., the applicant was implicated in this case and it was further recommended by the S.P.O. In his report that departmental action be initiated against Inspector Ali Bux Dhakan and A.S.-I. Muhammad Aslam Soomro. The learned counsel contended that in such circumstances the case against the applicant requires further enquiry.

5. ' The learned State Counsel in the above-stated facts and circumstances has conceded for grant of bail.

6. That regarding the first three grounds urged by the learned counsel for the applicant suffice to say that section 103, Cr.P.C. Is not applicable in the cases under the Control of Narcotic Substances Act per section 25 of the Act, 1997; reference ca be made to the case of Afzaal Ahmed v. The State 2003 SCM R 573 and Muhammad Hanif v. The State 2003 SCM R 1237. That regarding the sample of 110 grams it is no illegality, the trial Court can send the rest of the property for chemical examination on the application of the accused. Reference in this regard can be made to the case of Ali Muhammad v. The State 2003 SCM R 54. That regarding the complainant's acting as Investigating Officer in the case, it is also no illegality, reference can be made to the case State v. Bashir and others PLD 1997 SC 408. However, the report of enquiry, dated 2-9-2008, conducted by an honest officer i.e. S.P.O. Lakhi Ghulam Shah indicates that there is some foul play on the part of complainant Inspector Ali Bux, otherwise, looking to the general attitude and conduct of the local police, an officer from the Police Department and that too posted within the same jurisdiction was not expected to give a negative report against his colleague. The matter in this scenario of facts needs further enquiry, coupled with the circumstances as mentioned in F.I.R. Makes the case, doubtful. The applicant has made out a case of bail. Hence by the following short order, dated 23- 9-2008 applicant was granted bail.

7. "For the reasons to be recorded later on bail is granted to the applicant in the sum of Rs,1,00,000 and P.R. Bond in the like amount to the satisfaction of trial Court."

8. ' These are the reasons of the above short order.