MUHAMMAD CHATTAL vs THE STATE

ORDER

' FAIZ MUHAMMAD QURESHI, J.---The present applicant is seeking bail in Crime No,66 of 2000 registered with Police Station Sijawal under sections 6/9, Control of Narcotic Substances Act, 1997.

The present applicant moved bail application before the Special Judge (CNS), Larkana, but without success, hence this bail application.

2. Complainant/S.H.O. Mir Sabir Hussain Khaskheli of Police Station. Sijawal on 26-8-2000 alongwith his subordinate staff set out for patrol and during patrol he received spy information that two persons are bringing the narcotics on motorcycle 125 from Garhi Khairo side and on such information at about 11-30 a.m. Complainant alongwith subordinate reached at pointed place and found two persons coming on motorcycle from Garhi Khairo side and on seeing police party the persons sitting on motorcycle fell down and the present applicant was apprehended at the spot, while co-accused made his escape good and complainant secured 30 K.Gs. Charas from the Vardat and on enquiry the present applicant disclosed his name to be Muhammad Chattal and also disclosed the name of co-accused to be Muhammad Nawaz. Thereafter, the accused and property were brought at the Police Station and F.I.R. Was registered.

3. Learned counsel for the applicant has argued with vehemence that in F.I.R. Two accused have been shown and one of them made escape good and his name was disclosed to be Muhammad Nawaz and his name does not appear in challan copy. According to the counsel for the applicant, 30 K.Gs. Charas has not been recovered from the possession of the present applicant, but from the place of Vardat and only one K.G. Charas was separated out of 30 K.Gs. Charas for sending the same to expert and according to her, the seizing authority should have retained 1/3rd quantity of recovered narcotics and have to send 2/3rd to the Public Analyst. According to her, if the case is preceded against the present applicant, he will be charged with one kilogram and at the most the punishment would be seven years and from that point of view the case of the present applicant is not being covered by prohibitory clause of section 497(1), Cr.P.C. She has further submitted that in the challan copy the name of the absconding accused has been shown as Suhrab and from where the name of Suhrab has been brought in challan copy by police is baffling enigma and the conduct of the complainant party becomes dubious. In support of her contention, she has placed reliance on a case Nisar Khan v. State reported in 1997 M LD 1473, 1998 PCr.LJ. 955, 2001 SCM R 14, 2000 M LD 842 and finally prayed for grant of bail.

4. On the other hand Mr. Abdul Fatah Mughal, Advocate for the State has conceded that only one kilogram of Charas has been sent to the expert and it is not yet ascertained as to what happened to the rest of the quantity and has further contended that at the most the offence of the present applicant would be falling under section 9(b) of the Control of Narcotic Substances Act, 1997 and has frankly recorded his no objection to the grant of bail.

5. We have considered the arguments rendered by the counsel for the parties and have gone through the material available on the record and the impugned order.

6. Admittedly the recovery has been effected from the place of Vardat but not from the possession of the present applicant as mentioned in the contents of the F.I.R. Admittedly out of 30 kilograms Charas only one kilogram has been sent to expert for analysis. The name of Muhammad Nawaz has been disclosed by the present applicant, but no efforts have been made by police to lay their hands on the accused namely Muhammad Nawaz and it is starting to note that the name of Muhammad Nawaz does not appear in challan copy, on the contrary, the name of one Suhrab appears in challan copy as absconder. In view of sending one kilogram Charas to expert at the moment the present applicant can be saddled with one kilogram Charas and in that event the case of the present applicant would be falling within the purview of section 9(b) which is punishable ,,with seven years. Reliance can also be plated on the case of Gulzaman v. State reported in 1999 SCM R 1271 wherein the Honourable Supreme Court has held while granting bail to the accused that accused is presumed to be innocent till he is proved guilty beyond reasonable doubt by the prosecution and the prosecution at the moment has created dent in its own case, matter calls for further inquiry. The law cited by the learned counsel for the applicant is also applicable in the present case, we are of the considered view that the present applicant has been able to make out a good prima facie case for grant of bail at the moment, particularly when no objection has been recorded by the learned counsel for the State Mr. Abdul Fatah Mughal.

Accordingly, the applicant is granted bail on furnishing security in the sum of Rs, one lac and P.R.

Bond in the like amount to the satisfaction of trial Court.