ORDER SHEET
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Date Order
with signature of Judge
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DATE OF HEARING 13.07.2015
M/s. Rasheed A. Rizvi, Mehmood Alam Rizvi, Shaheryar
Qazi and Shahid Soomro Applicant.
Mr.
Abdullah Rajput learned APG Sindh for State.
SYED
HASAN AZHAR RIZVI J; Applicant/accused has approached to this court after
rejection of his Bail Application by the learned Special Judge, Control of Narcotic Substances, Hyderabad in Bail Application
No.06/2015 on 30.01.2015.
Heard
learned Counsel for the Applicant, learned APG for the State and perused the
record coupled with cases law carefully with assistances of parties’ Counsel.
I am of the humble
view that the Full Bench of Lahore High Court in the case of Ghulam Murtaza
versus the State reported in PLD 2009 Lahore 362 keeping in view the
accumulated judicial wisdom and experience and balancing the same with the
interests of justice in the overall social and economic context, in the case
under Section 9(c) of the Control of Narcotic Substances, Act in case of
recovery of charas exceeding 04 kilograms and upto 05 kilograms normally approved
and prescribed sentence of R.I. for 7 years and 06 months and fine of
Rs.35,000/- or in default SI for 06 months and 15 days. In the present case 5
kilograms charas was allegedly recovered from the vehicle wherein applicant and
co-accused were sitting.
The Honourable
Apex Court in the case of Jamal-ud-Din alias Zuabir Khan versus the State
reported in 2012 SCMR 573, it has been observed that:-
“as the quantum of sentence has to be commensurate with the
quantum of substance recovered, we doubt the petitioner can be awarded maximum
sentence provided by the Statute. Needless to say that the Court while hearing,
a petition for bail is not to keep in view the maximum sentence provided by the
Statute but the one which is likely to be entailed in the facts and
circumstances of the case”. The fact that petitioner has been in jail for three
months yet commencement of his trial let alone its conclusion is not in sight, would also tilt the scales of justice in favour of
bail rather than jail”.
In another case of Ameer Zeb Vs. State
reported in PLD 2012 Supreme Court 380 a five members Bench of Apex Court held,
that since the act prescribed different punishment which depends on the
quantity of narcotics, therefore, it was necessary to ensure that samples were
taken from each packet (if there were more than one) and which must be
separately sealed and sent to the laboratory. It would be useful to reproduce
the following extract from the said judgment:-
“It is our
considered opinion that a sample taken of a recovered substance must be a
representative sample of the entire substance recovered and if no sample is
taken from any particular packet/cake/slab or if different samples taken from
different packets/cakes/slabs are not kept separately for their separate
analysis for the Chemical Examiner then the sample would not be a
representative sample and it would be unsafe to rely on the mere word of mouth
of the prosecution witnesses regarding the substance of which no sample has
been taken or tested begin narcotic substance.
Following
the case of Ameer Zeb supra, the Full Bench of Honourable Supreme Court in a
recent case of Khuda Bakhsh Vs. The State wherein only one sealed parcel was received to the FSL
according to their report which did not contain additional sealed
parcels/packets and contention of the prosecution was that separate samples
were removed from each packet of the seized material therefore, it was held
that:-
“Therefore,
whilst it has been established that the seized substance sent for chemical
examination was charas we cannot presume that the entire quantity of the seized
material was charas too, since separate smaples taken from each packet were not
so sent for examination.
In the present
case, according to story of the prosecution five kilograms charas was recovered
in five packets and 10/10 grams from each packet was taken as samples separately
but according to FSL report only one sealed parcel containing 50 grams was
received to them but neither in the FIR nor in challan nor in mashirnama of
arrest and recovery it is stated that all the five samples of 10/10 grams were
mixed and sealed in one packet, which creates doubt and fatal to the case of
the prosecution. The mashirnama of arrest and recovery is also silent as to the
manner of weighing narcotic and the scale use, which makes the case of the
present Applicant of further inquiry.
Also
the contraband was sent to chemical examiner with the delay of three days but
no explanation is given by the prosecution for such delay and even it is not
clear that specimen which was to be received by the Chemical Examiner on the
same day or at the most on next day, was delivered to him after three days as
to where said specimen remained during that period and what was its safe
custody.
For what has been
discussed above the case against the Applicant calls for further inquiry into
his guilt within the purview of subsection (2) of Section 497 Cr.P.C.
Above are the
reasons of my short order dated 13.07.2015 whereby present bail application was
allowed and the Applicant was admitted to bail subject to furnishing solvent
surety in the sum of Rs.10,00,000/- (Rupees One Million only) and P.R. Bond in
the like amount to the satisfaction of the learned Trial Court.
Observations made hereinabove are of tentative nature and the trial
Court shall not be influenced by any such observation.
J
U D G E
Karachi
Dated _________________