SOHAIL alias GANG vs THE STATE

ORDER

1. ' ARSHAD NOOR KHAN, J.--- The accused has filed present application with the prayer to release him on bail as he has been challaned to face trial under sections 6/9(c), Narcotics Act, 1997, vide Crime No,60 of 2007 of Police Station Mahmoodabad.

2. ' The facts as contained in the F.I.R. Are that on 17-3-2007, the complainant, Rehmatullah Udho, A.S.- I.P. Was on patrolling duty along with his subordinates and during the course of the patrolling he received a spy information that narcotic dealer Sohail alias Gangoo was selling Charas in the nearest street of Moula Madad Hotel, Chanaser Goth. On such information, the complainant along with police party reached at the pointed place where he found the said person selling the Charas, who on seeing the police party, after throwing black bag fled away in the narrow street. He, therefore, secured the said black bag and on search of the said black bag, he recovered 17 packets of Charas in the shape of rods weighing 21 Kgs. He separated one rod for chemical examination and sealed it separately and the remaining quantity of the Charas was also sealed separately and after preparation of Mushirnama returned to the police station and lodged the F.I.R. As stated above.

3. ' The accused was arrested on 11-10-2007 and after his arrest he was produced before the learned lower Court where the challan was submitted. The accused filed application for bail before the learned lower Court, who after hearing the learned counsel for the parties, dismissed the same.

4. Hence the present application for bail.

5. ' I have heard Mr. Hameedullah Dahri, Advocate for the accused and Ms. Naheed Naz, Advocate for the State.

6. ' The learned counsel for the accused vehemently contended that the accused was arrested after more than six months from the alleged date of the incident and after his arrest, no identification parade has been held. According to him, the alleged sample of the Charas was sent to the Chemical Examiner after 51 days of the said recovery, whereas, he was under obligation to send it within 72 hours under sub-Rule (2) to Rule 4 of the Control of Narcotic Substances (Government Analysts) Rules, 2001. According to him, the recovery has not been alleged from the possession of the accused, as such, the case for further inquiry has been made out and the accused may be released on bail; in support of his contentions, he has relied upon the case of Muhammad Chattal v. The State reported in 2001 YLR 654, the case of Anwar v. The State reported in 2005 M LD 950 and the case of Muhammad Hassan Khan and another v. The State reported 2007 PCr.LJ 514.

7. ' Ms. Naheed Naz, learned counsel for the State has vehemently opposed the contentions advanced by the learned counsel for the applicant/accused and has contended that huge quantity of Charas was recovered when the accused fled away from the spot throwing black bag from which huge quantity of Charas was secured and according to her the evidence of police officials may be treated as good evidence of the any other independent witness could be subject, however, to their cross-examination. She further contended that the delay in sending the Charas to Chemical Examiner was not material and fatal to the case of the prosecution for the simple reason that the same were found positive by the Chemical Examiner, as such no case for bail has been made out at this stage.

8. ' The notice of the present application has also been served on Mr. Ashfaq Hussain Rizvi, Special Prosecutor, A.N.F. But he chooses to remain absent.

9. ' I have considered the arguments advanced by the learned counsel for the parties and have gone through the material available before me.

10. ' According to the contents of the F.I.R., on receipt of spy information about selling the Charas by one Sohail alias Gangoo, the complainant Rehmatullah A.S.-I.P. Reached at the pointed place where he found one person selling the Charas who on seeing police party fled away from thereafter throwing black bag and on search of it, 21 Kgs. Of Charas was recovered. From the said piece of evidence contained in the F.I.R., it is evident that the accused was selling Charas but no purchaser was present at the alleged time of sale of the Charas because no statement of the purchaser seems to have been recorded by the Investigating Officer, as such the allegation contained in the F.I.R. That the said Sohail alias Gangoo was selling Charas seems to be a vague and fallacious statement.

11. ' Nowhere in the F.I.R., the complainant Rehmatullah A.S.-I.P. Has stated that he knows the present accused previously. Admittedly the accused has been arrested after about more than six months from the date of alleged incident and after his arrest it was obligatory on the part of the Investigating Officer to get the identification parade of the accused held before the Magistrate from the other witnesses who were allegedly present at the time of arrest of the accused but admittedly no identification parade has been held which badly reflected on the case of the prosecution. The samples have also been sent to Chemical Examiner after inordinate delay without just and sufficient explanation. The case-law relied upon by the learned counsel for the accused on this aspect of the matter fully supports his version. For all the aforesaid reasons, I find that a case of further inquiry has been made out and he is entitled for bail.

12. ' The application is, therefore, allowed; the accused shall be released on bail subject however, to his furnishing solvent surety in the sum of Rs,5,00,000 (Rupees five lacs only) with P.R. Bond in like amount to the satisfaction of the learned trial Court.