SHEHZAD KHEZAR HAYAT vs The STATE

' SHAH JEHAN KHAN AKHUNDZADA, J.---Accused-petitioner Shehzad Khizar Hayat facing prosecution in case F.I.R. No.168 dated 28-3-2013 under section 9(c) Control of Narcotic Substances Act, 1997 registered at Police Station Nasir Bagh District Peshawar was refused bail by the learned Additional Sessions Judge-IV, Peshawar vide his order dated 10-4-2013. Now he has approached this Court for his release on bail.

2. The prosecution case as per contents of the Murasila is that on 28-3-2013 Haroon Khan S.H.O.

Along with his other police contingents was on gasht and during gasht received information that huge quantity of contraband Charas would be smuggled through Suzuki (Carry van) bearing Registration No.5163/FDZ towards Punjab via Sakhi bridge. So, on receipt of above information he made a barricade at Sakhi Bridge Check Post. At about 16.30 hours the vehicle in question came from tribal area which was stopped. Three persons were sitting in it, out of whom the driver disclosed his name as Faisal son of Ghulam Mustafa, the person occupying the front seat with the driver disclosed his name as Shahzada Khizar Hayat (accused-petitioner) while the third one occupying the rear seat disclosed his name as Muhammad Tauseef, all residents of Punjab Province. The above named persons were deboarded from the said Suzuki and carried out their personal search but nothing was recovered from them. On search of the vehicle five packets each containing one kilogram Charas pukhta (total five Kilograms) were recovered from its secret cavities made for loudspeaker on the roof of the vehicle, out of which 5/5 grams were separated for analysis through FSL and the remaining was sealed into separate parcel. The accused were arrested on the spot and a Murasila was drafted and sent to the Police Station for registration of the case where on the basis of it F.I.R. No. 168 was registered under the aforesaid section of law.

3. I have heard the learned counsel for the accused-petitioner and learned counsel for the State and have also gone through the record of the case.

4. Without dilating upon the merits of the prosecution case or the plea of defence, suffice it to say that the alleged recovery of contraband Charas has been made on 28-3-2013 and the samples separated from it for analysis were sent to the FSL on the same day but perusal of the record would show that no report of FSL is available on the file, but the FSL report regarding the vehicle in question is available on record. Non-availability of FSL report in respect of the contraband Charas allegedly recovered makes the case of the accused-petitioner arguable for the purpose of bail because there is no proof whether the contraband was Charas or otherwise, hence the case of the accused-petitioner requires further probe and falls within the ambit of subsection (2) of section 497, Cr.P.C. Which entitles him to the concession of bail on this ground alone. Needless to mention here that this is not the first case in which the report of FSL is not available but out of hundred cases of similar nature in ninety five cases the reports of FSL are missing or still awaited and due to this omission and negligence of the Investigating Officer the accused are released on bail by the Courts on this ground. The learned Advocate-General be asked to issue direction in this respect to the Prosecuting Agencies concerned to do the needful in time.

5. Resultantly, this bail application is accepted and the accused-petitioner is released on bail provided he furnishes bail bond in the sum of Rs.1,00,000 (Rupees One lac) with two sureties each in the like amount to the satisfaction of learned Illaqa/ Judicial Magistrate. The sureties must be local, reliable and men of means. Copy of this order be sent to the learned Advocate General Khyber Pakhtunkhwa for compliance.

' The above are the reasons of my short order announced on 6-5-2013.