ABDUL KHALIQ Versus State
ORDER
1. MUHAMMAD AFZAL SOOMRO, C J .--Applicant Abdul Khaliq is involved in F.I.R. No.3201 of 2006 under section 6/9(c), C.N.S. Act, registered at Police Station Pakistan Coast Guards.
2. The brief facts of the prosecution are that a spy information was received that a huge quantity of narcotics is being brought from Quetta; to Karachi. Upon this information a mobile patrolling party was organized and when they reached at Super Highway near Sabzi Mandi Naib Subedar Muhammad Sharif disclosed about the suspected vehicle. On 14-8-2006 at 1230 hours one Toyota Hi Lux Registration No.CN 5776 was stopped by them, two persons namely Muhammad Yaseen and Abdul Khaliq were present in the same, on search of the vehicle 148 Kgs. of Charas in the shape of rods and 2 Kgs. Charas in the shape of Gardha were found, Mashirnama was prepared on the spot and 9 samples were taken of 10 grams each.
3. It is contended by the learned counsel for the applicant that the case against the applicant is false and foisted one in order to fill up the - lacuna by the prosecution; that the F.I.R. was lodged by Coast Guards Authority on 14-8-2006 and challan was submitted on 2-9-2006 without explanation of delay; that no application was filed by the Coast Guards Authority before the trial Court for taking permission of extension of time regarding late submission of challan; that according to the Coast Guards Authority, F.I.R. No.3201 of 2006 was lodged on 14-8-2006 by the complainant Muhammad Sharif but the challan was submitted on 2-9-2006 which shows F.I.R. No.2301 of 2006 which creates serious doubt and the benefit of which should go to the accused; that the Coast Guard Authority has overwritten the registration number of the vehicle in the challan as CN 7556 instead of CN 5776; that the applicant is neither owner of the vehicle nor driver nor any driving licence has been recovered from him. The Coast Guard Authority has mentioned that Yasseen was the driver of the said vehicle whereas he does not know the driving; that the Mushirnama does not show that the samples of the recovered Charas were sealed and signed on the spot which is a lacuna in the case; that admittedly the whole Charas was recovered in the shape of rods but the prosecution has taken only 9 samples from the whole case property and not from each rod and that total weight of the samples becomes 90 grams which comes under the definition of 6/9-A, C.N.S. Act carrying punishment for two years; that the inventory of seized goods submitted along with the challan does not show the name of the present applicant neither time of occurrence and place of occurrence has been shown; that the prosecution has not mentioned in the record about the ownership of the seized vehicle, nor they made the applicant accused or a witness through the recovery is alleged to have been effected from the special cavities of the vehicle; that the applicant/accused was coming from Quetta to Karachi by bus and he was standing at Sabzi Mandi Bus stop from where he was taken and the real culprits were left; that the applicant was never involved in any case and is a peaceful citizen and lastly that the involvement of the applicant is false and due to some misunderstanding as such the applicant is liable to be released on bail. In support of his contention he has relied upon the cases of 2001 SCMR 14, 2003 PCr.LJ 540 and 2007 PCr.LJ 139.
4. Learned Standing counsel has strongly opposed the grant of bail and contended that there is enough material available with the prosecution that the applicant is involved in the crime and is not entitled to the concession of bail.
5. I have heard the learned counsel for the parties and scanned the material available on the record.
6. The F.I.R. was lodged by Coast Guards Authority on 14-8-2006 and challan was submitted on 2-9-2006 without explanation of delay. There is lacuna in the prosecution case as the prosecution has mentioned Yaseen as the driver of the said vehicle whereas he does not know the driving the Mushirnama does not show that the samples of the recovered Charas were sealed and signed on the spot. Admittedly the whole Charas was recovered in the shape of rods but the prosecution has taken only 9 samples from the whole case property and not from each rod and that total weight of the samples becomes 90 grams which comes under the definition of 6/9-A, C.N.S. Act carrying punishment for two years. In 2005 PCr.LJ 1080 a Division Bench of this Court held that entire quantity was not sent for chemical analysis and weighment etc. to confirm whether or not the weight of alleged recovered Charas was of one kg or less, case being for further inquiry entitling accused to concession of bail and accused was admitted to bail. In 1995 SCMR 1345 it was held that for granting benefit of doubt to accused it is not necessary that there should be many circumstances creating doubts, if a simple circumstances creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.
7. In view of the above discussion, the applicant/accused was granted bail in the sum of Rs.200,000 with P.R. bond in like amount to the satisfaction of the trial court by short order dated 11-1-2008 and these are the reasons for the same.
8. S.A.K./A-137/K Bail granted.