NOOR MUHAMMAD Versus State

ORDER

1. Applicant Noor Muhammad was arrested in Crime No.15 of 2006 in an offence under section 9(c) Control of Narcotic Substances Act, 1997 on 25-5-2006 by S.I.P./S.H.O. Imdad Ali Hulio of Police Station Mahota. The bail plea on behalf of the applicant accused was filed in the trial Court but the same was dismissed vide order dated 4-11-2006. The applicant has preferred bail application before this Court for seeking bail on similar ground.

2. The brief facts of the prosecution case as disclosed in the F.I.R., are that on 25-5-2006 at about 1600 hours S.H.O. Imdad Ali Hulio of Police Station Mahota arrested the applicant accused along with subordinate staff in village Bahram Luhur near the Otaq of applicant accused. The law enforcing agency apprehended, him by covering distance of 15/20 paces, he disclosed his name as Noor Muhammad son of Bangui Khan resident of village Bahram Luhur, Taluka Larkana. The applicant accused was found in possession of plastic shopper, the same was checked and it was found that shopper containing Charas having eleven little shoppers. The recovered material was checked and it was found as Charas; the raiding party found Charas as eleven Kilograms out of which half kilogram was taken out as sample and remaining material was sealed. The mashirnama of recovery and arrest was prepared. The applicant along with secured property was brought at police Station where the F.I.R. was lodged against the applicant accused under section 9(c) Control of Narcotic Substances Act, 1997. Hence this application.

3. ?

4. Mr. Muhammad Ayaz Soomro learned counsel for the applicant has contended that the police party had advance information and they proceeded to recover narcotics but they did not associate any independent/private person to witness the recovery or to act as mashir: It is further urged that out of alleged entire eleven kilograms of Charas only half kilogram was taken out from Theli for chemical analyzer as stated in the F.I.R. as well as in the memo of recovery. Mr. Soomro submits that the contents of the F.I.R. and mashirnama of recovery are silent whether the alleged Charas was in form of rod but it is specifically stated that eleven pieces were found in separate plastic Theli but the material was not taken out from each Theli. Mr. Soomro in support of his arguments has relied upon the case of Imtiaz Ali v: The State (2006 MLD 1961), Shahmore v. The State (PLD 2003 Kar. 604) Waris Khan and 2 others v. The State 2006 SCMR 1051 and in the case of Muhammad Hashim v. The State (PLD 2004 SC 856).

5. Mr. Mushtaque Ahmed, Abbasi learned Assistant Advocate General has opposed the grant of bail only on the ground that the applicant accused was arrested at the spot and alleged Charas was recovered from the possession of the applicant by the law enforcing agency. There is no any enmity as alleged by the applicant for implicating him in the said offence. It is further urged that huge quantity of Charas recovered from the possession of the applicant which cannot be foisted against him by the complainant. Learned Assistant Advocate-General concedes that as per F.I.R. and mashirnama, the applicant accused was found in possession eleven thelis containing Charas, the same material was. weighed at the spot and it was found eleven Kilogrmas of Charas and only half Kilogram of that was taken out for the purpose of chemical analyzer report. He also submits that the report if positive.

6. We have heard .the learned counsel for the respective parties, perused the material placed on record and case-law cited at bar. Admittedly the applicant accused was arrested along with plastic thelis (Shoppers) and on seeing the police party the applicant accused tried to escape, however, the law enforcing agency encircled him at the distance of about 15/20 paces and arrested him along with contra band material. The body of the applicant was searched and was found in possession of plastic thelis (Shoppers), on verifying the material Charas was -recovered and was weighed at the spot having eleven Kilograms out of which half kilogram was sealed as sample and remaining was sealed separately and such mashirnama was prepared. In the case of Imtiaz Ali v. The State it was observed that accused involved in that case was having in possession of twenty Kilograms of Charas in the shape of paties/plates but the number of paties/plates were not mentioned either in the F.I.R. or in the mashirnama and the quantity of 250 grams of Charas was taken out from the entire for the purpose of Chemical Analyzer Report. It is further observed in this case whether the sample was taken out separately from each of the patties/plates or only from one of the same. In this case also we have observed that the law enforcing agency arrested the accused while having shopper in his hand containing eleven small shoppers. The entire material was taken out and it was weighed which comes eleven Kilograms of Charas therefore it is obvious that sample was not taken out from each small theli at the time of seizing and half kilogram of Charas was taken out from the entire property. Admittedly in eleven shoppers separate sample was not taken out from each shopper and no conclusive findings could be recorded that all the recovered material was contra band narcotics therefore, the final finding is yet to be recorded by the trial Court regarding the recovery of eleven Kilograms from the possession of the applicant accused. The case of the applicant accused is identical with the case of Imtiaz Ali who was arrested and twenty Kilograms of Charas was recovered in the shape of patties/ plates. For the above reasons we are of the view that the applicant accused has made out a case for grant of bail. Resultantly, bail is granted to the applicant accused with two sureties each in the sum of Rs.500,000 (Five lacs only) and PR bond in the like amount to the satisfaction of the I I trial Court.

7. H.B.T./N-24/K ?????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.