PATHAN KHOKHAR vs The STATE

ORDER

SHAHNAWAZ TARIQ, J.---Through the captioned post arrest bail application, applicant Pathan Khokhar has impugned the order dated 06.11.2014, passed by the Court of learned Sessions Judge/Special Judge, CNS, Kamber Shahdadkot, whereby his earlier bail application was declined.

2. Relevant facts pertaining to the prosecution case are that complainant SIP Wazir Ali Bhutto during patrolling recovered 2050 grams charas from the possession of accused, hence instant FIR.

3. Learned counsel for the applicant contended that applicant is innocent and has been falsely implicated in this case. He further contended that alleged recovered substance was sent for chemical examination with the delay of 09 days, which has made the case of prosecution doubtful.

He further contended that despite prior information complainant has failed to associate the private person to act as mashir at the time of alleged recovery. He relied on the order dated 20.1.2014, passed by the Single Judge of the High Court of Sindh in Criminal Bail Application No.S-31 of 2014, whereby applicant was enlarged on bail who was found in possession of 2000 grams Charas keeping in view the line drawn in the case of Ghulam Murtaza v. The State, reported in PLD 2009 Lahore 362. It is significant to mention that hon'ble Supreme Court has already revisited the said judgment and it was held that said cage law will not be considered at the time of bail. He further relied on the case of Muhammad Nadeem v. The State and another (2010 MLD 773), wherein 04 kilograms Charas was recovered from the possession of the accused, however, after lapse of three years, said case was not concluded, where upon he was enlarged on bail. He also relied on the case of Noor Khan v. The State (2012 MLD 1542), whereby the accused was granted bail in a case of possessing 3600 grams Charas on consideration of another judgment passed by the same Court vide order dated 01.8.2012. He further relied on the case of Jamal-ud-Din alias Zubair Khan v.

The State (2012 SCMR 573), whereby the Hon'ble Supreme Court has held that while hearing petition for bail Court has to consider the minimum aspect of the sentence awarded for the alleged offence in the schedule. The above cited case law are distinguishable from the .Peculiar circumstances or instant case.

4. While controverting the contentions raised by the learned counsel for the applicant, learned D.P.G. Has vehemently contended that entire recovered narcotics was sent for chemical examination and as per report, the recovered substance was found as Charas. He further contended that applicant has led to point out any kind of enmity for his false involvement in this case.

5. Perusal of the material available on record and consideration of arguments advanced by learned counsel for the parties as well as the case law emanate that applicant was apprehended by complainant during patrolling and Charas weighing 2050 grams was recovered from his possession in presence of police officials. By virtue of application of section 25 of CNS Act, provisions of section 103, Cr.P.C. Have been excluded, thus, the arguments of the learned counsel for the applicant has no force regarding non associating of public witnesses at the time of recovery of narcotics. It is well-settled that police officials are good witnesses and their statement could not be discarded if any kind of enmity or it will is not brought on record. In case of Muhammad Mushtad and another v. State (2008 SCMR 742), the hon'ble Supreme Court has observed that police officials are also competent witnesses and their testimony cannot be discarded merely for the reason that they are the employees of police force.

6. While considering the contention raised by learned counsel for applicant regarding sending of sample with delay to the Chemical Examiner, it is pertinent to mention that Rules Nos.4 and 5 of Control of Narcotic Substances Act (Government Analysts) Rules, 2001, impose no bar on the investigation officer from sending the sample beyond 72 hours of seizure of the narcotic substance.

The referred rules are directory in nature and not mandatory and sending the sample beyond the stipulated period in above rules, in absence of any allegation of tampering, would not frustrate the entire case of prosecution. Reliance inthis context can be made in the case of Nasrullah v. The State (2011 PCr.LJ 277) and Yousuf Gul v.The State (PLD 2009 Peshawar 39). Indeed, the applicant has failed to allege any kind of animosity against the complainant for his false involvement nor any complaint was made to the high ups in this regard, therefore, accused could not take the benefit by agitating the technical grounds at this initial stage. Admittedly, entire recovered substance was sent to the chemical examiner and as per such report the entire substance was charas.

7. Considering the above facts and circumstances, the applicant has failed to make out the case for grant of bail under the ground of further inquiry as envisaged under section 497(2)

Cr.P.C.Consequently, instant bail application stands dismissed. However, the learned trial Court is directed to conclude the trial within 30 days and adopt all possible measures including the coercive method to ensure the appearance of the PWs and submit such compliance reports to this Court through the Additional Registrar of this Court.