Hamid Ullah Versus State
Order
Muhammad Tariq Afridi, J .--- The petitioner / accused Muhammad Adnan seeks post arrest bail in case FIR No.274, dated 13.10.2024, registered under Section 11(b) of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2019 read with Section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 at Police Station Shahbaz Khel, District Lakki Marwat.
2. The brief facts of the case are that on 13.10.2024, at 10:10 hours, a police patrol led by Muzaffar Khan, ASI, spotted a person armed with a Kalakov on the metalled road of Tattar Khel Langer Khel. Upon seeing the police, the person affempted to escape, but was tactfully overpowered and disarmed after failing to produce a license for the Kalakov folding butt bearing No.K620 with fitted magazine containing 23 rounds of .223 bore. He was physically searched which led to the recovery of 509 grams of methamphetamine, wrapped in a white coloured bag, from his side pocket. The Kalakov, ammunition, and the methamphetamine were taken into possession vide recovery memo of the same date. The accused identified himself as Hamid Ullah son of Nasrullah resident of Aba Khel. He was arrested. Videography of the process of search, seizure, and arrest was made and saved in a memory card. The murasila was drafted and sent to the police station, leading to the registration of the captioned FIR.
3. Arguments heard. Record perused.
4. Perusal of the record reveals that the recovery was allegedly effected on 13.10.2024, while the sample parcel of the recovered methamphetamine was sent to the Forensic Science Laboratory (FSL) on 23.10.2024. The relevant provision that relates to the dispatch of samples for testing or analysis to the FSL is contained in Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001. It provides that the samples may be dispatched for analysis under the cover of a Test Memorandum specified in Form-I at the earliest, but not later than seventy-two hours after the seizure. In the instant case, as noted above, the sample parcel was sent to the FSL beyond seventy-two hours after its seizure. Moreover, a copy of Register-XlX is available on the record, however, it does not reveal the name of the police official who transmitted the sample parcel to the FSL. Therefore, the prosecution is yet to establish not only the factum of the recovery, but also its safe custody and secure transmission to the FSL. However, at the moment, the aforesaid discrepancy makes the instant case arguable for the purpose of bail. Reliance can also be placed on Sagheer Ahmed v. The State (2024 SCMR 913), wherein the Supreme Court observed:
6. The record shows that FIR was registered on 06.08.2023 and the accused was arrested on the same day. While, as per the report of the Punjab Forensic Science Agency dated 27.10.2023, the sample of the charras was received by Forensic Science Laboratory on 08.09.2023, after a delay of more than a month. The provisions relating to the sending of samples to the forensic Science Laboratory are provided in Rule 4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001, which provides that the samples may be dispatched for analysis under cover of Test Memorandum specified in Form-I at the earliest, but not later than seventy-two hours of the seizure. There is nothing on record to show to whom the alleged recovered narcotics were handed over at the police station for safe custody during that period. The fact of the safe custody of the recovered narcotic substance is to be established or proved by the prosecution during the trial; however, the above-noted unreasonable delay of more than one month could be considered at the time of deciding the bail, which makes the case of the petitioner one of further inquiry.
5. As far as the offence under Section 15 of the Khyber Pakhtunkhwa Arms Act, 2013 is concerned, suffice it to say that it does not attract the prohibition contained in Section 497 Cr.P.C., and the grant of bail in such cases is the rule, while refusal is the exception. However, there is nothing on the record which could bring the instant case within the exceptional limb of this provision.
6. Consequently, this petition is allowed. The petitioner/accused is admitted to bail, provided he furnish bail bonds to the tune of Rs.1,00,000/- (Rupees One Hundred Thousand) with two sureties in the like amount to the satisfaction of the concerned Judicial Magistrate / MOD, who shall ensure that the sureties are local, reliable, and men of means.
7. Before parting, it is worthwhite to mention that the observations made hereinabove are purely tentative in nature, therefore, they shall not influence the mind of the trial judge at the trial, where the case shall be decided on its own merits in accordance with law.
8. The foregoing are the reasons for my short order of even date.
JK/118/P Petition allowed.