NASIR KHAN AFRIDI vs THE STATE

1. ORDER MUHAMMAD TASNIM, J.-Applicant was booked in Crime No.730 of 2010, under sections 6/9 C.N.S., Act, 1997, Police Station Mominabad. Applicant seeks bail through this application.

2. Brief facts, as per F.I.R., are that complainant H.C. Fazlur Rehman's No.1250, posted at Police Station Mominabad, lodged the F.I.R. On 28-12-2010 at 1230 hours and alleged that H.C. Fazlur Rehman's No.1250, with PC Muhammad Bashir 26275, PC Hamidullah 2187, PC Nisar Ahmed 28543, PC Muhammad Ejaz 24667 arrested accused Nasir Khan Afridi son of Muhammad Ali Afridi allegedly having 115 rods of charas weighing about 1150 grams and sale amount of Rs.200 came to the room of duty officer and produced accused along with the alleged recovered charas, accordingly F.I.R.

3. As above was registered against the applicant.

4. Applicant filed bail application before the learned trial Court, which was dismissed per order dated 25-1-2011.

5. Learned counsel for applicant in support of present bail application has submitted that complainant has no right under the law to arrest present applicant under C.N.S. Act, 1997 and he was not competent to lodge F.I.R. He further argued that alleged arrest was made in thickly- populated area, but having alleged spy information police officials did not associate any private witness at the time of arrest and/or recovery from the present applicant. He has further argued that alleged recovery of charas was not sealed at the spot nor the same was weighed, but on presumption it was recorded in F.I.R. That about 1150 grams of charas has been allegedly recovery from the present applicant. Learned counsel has stated that it is not mentioned in the police papers that as to whether alleged recovered charas was ever sent for chemical examination or not. He further submitted ' case of the prosecution is doubtful and applicant is entitled to bail, as this case requires further enquiry.

6. Conversely learned D.P.-G. Has vehemently opposed the grant of bail and has supported the order passed by the learned trial Court. Learned D.P.-G. Has argued that association of private witnesses was not called for. He further submitted that recovered charas has been sent for Chemical Examiner.

7. I have heard the learned counsel for the parties and have perused the record.

8. It is admitted position that on spy information police acted and arrested present applicant, but no private witness was associated though he was arrested from a thickly-populated area in case of Hakim Mumtaz Ahmed v. The State (PLD 2002 SC 590), the honourable Supreme Court of Pakistan while dealing with the need of private witness at the time of arrest or recovery has observed as under:-- "Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused. Allegation against accused, thus, needed further enquiry."

9. In the case in hand as per prosecution case 1150 grams of charas was allegedly recovered from the applicant. The quantity of 1150 grams marginally exceeds the limits of 1000 grams, therefore this is a border line in between Class-b and Class-c of section 9 of the Control of Narcotic Substances Act, 1997. This aspect needs further enquiry to determine the guilt of the applicant. At the bail stage deeper appreciation of the record cannot be gone into, but only it is to be seen as to whether the applicant is prima facie connected with the commission of offence or not.

10. In view of facts and circumstances of the case and the case-law on the subject, I am of the view that applicant's case requires further enquiry as contemplated under section 497(2), Cr.P.C., resultantly applicant was admitted to bail in the sum of Rs.50,000 (Rupees Fifty Thousand only) with P.R. Bond in the like amount for the reasons to be recorded separately on 4-5-2011 and these are the reasons for the same.

11. Any observation made in this order is of tentative in nature and shall not affect the trial of the case..