2021 Y L R 841
[Peshawar]
Before Waqar Ahmad Seth, C.J
MUALLIM---Petitioner
Versus
STATE---Respondent
Criminal Miscellaneous Bail Application No. 580-P of 2020, decided on 30th March, 2020.
(a) Criminal Procedure Code (V of 1898)---
----S.497---Khyber Pakhtunkhwa Control of Narcotic Substances Act (XXXI of 2019), Ss. 9(d) & 2(e)---Transportation of narcotics---Bail, grant of---Delay in sending samples to Forensic Laboratory---Seizing officer being below the rank of Sub-Inspector--- Effect--- Accused was alleged to have been apprehended while transporting 10 kilograms of charas--- Accused was not required to the local police for further investigation---No prospect of the commencement of his trial in the near future existed, let alone its conclusion---Samples was dispatched to the Forensic Laboratory after an unexplained delay of 4 days---Seizing officer was below the rank of Sub-Inspector---Mere heinousness of crime did not disentitle the accused to the concession of bail when ultimate conviction could repair the wrong caused by mistaken relief of bail---Petition was allowed, in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Heinous nature of crime---Scope---Heinousness of crime will not disentitle an accused to the concession of bail when ultimate conviction, if any, can repair the wrong caused by the mistaken relief of bail.
Miss Shabbina Noor for Petitioner
Atif Ali Khan, A.A.G. for the State
Date of hearing: 30th March, 2020
Judgment
WAQAR AHMAD SETH, C.J---Petitioner Muallim son of Aurangzeb resident of Zakha Khel Nizam Khel Barg Landi Kotal, Tehsil Landi Kotal seeks his release on bail in a case registered vide FIR No. 1395 dated 22.11.2019 under section 9-D, Control of Narcotic Substances Act, at Police Station, Hayatabad, Peshawar, after the refusal from the Court of learned Additional Sessions Judge-VIII/JSC, Peshawar vide order dated 27.02.2020.
2. As per brief contents of FIR, Asghar Khan, Assistant Sub-Inspector of P.S. concerned on 22.11.2019 along with Police Nafri were on routine patrolling in the vicinity received spy information that huge quantity of notorious will be smuggled through motorcar bearing registration No. ABX-773; thus, he placed barricade on the place of occurrence. In the meanwhile motorcar in question appeared on the crime scene which was stopped. On query the driver disclosed his name as Muallim (present accused/petitioner). The vehicle was subjected to search which led to the recovery of 10 packets of charas weighing 1000 grams each, (Total 10 Kilogram), whereafter; the Seizing Officer separated 5/5 grams each from the entire stuff for the purpose of Forensic Science Laboratory, sealed in to parcels. While remaining quantity of charas was sealed into another parcel by affixing stamps mark as "HA". On recovery of narcotics, arrested the accused, the Seizing Officer recorded the Murasila and dispatched it to the Police Station concerned, on the basis of which FIR well mentioned in the first para of this judgment was registered against the present accused/petitioner.
3. After his arrest the accused applied for his release on bail to the learned lower Court which was declined to him by the learned Additional Sessions Judge-VIII/JSC, Peshawar vide order dated 27.02.2020, and now he has come to this Court for the same relief.
4. Argument of learned counsel for the parties heard and available record perused anxiously.
5. Without entering into the other aspect of the case no doubt huge quantity of charas weighing 10000 grams of charas was recovered from the secret cavities of vehicle, whether the accused/ petitioner could be awarded a sentence attracting prohibitory clause or not, when the fact that he is no more required to the local Police for further investigation/ interrogation and when he is in jail since his arrest for the alleged recovery of the aforesaid stuff and there is no prospect of the commencement of his trial in the near future let alone its conclusion, this Court does not see any strong reasons to withhold the concession of bail to the accused/petitioner when speedy trial is his indefeasible right.
6. Perusal of the record further reveals that the recovery has been effected on 22.11.2019 from the vehicle as per detailed mentioned above, while the samples were dispatched to the Director Forensic Science Laboratory, Peshawar on 26.11.2019 after the unexplained delay of 04 days. It is pertinent to mentioned that the safe custody which is the mandatory requirement to be cared, the prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable safe and secure where there is no application for sending the samples to the Forensic Science Laboratory and that the recovery stuff for samples has been dispatched after many days as in the case in hand, there would always be a room of further scope into the guilt of the accused/petitioner.
7. Admittedly the Seizing Officer in this case is ASI who is "below the rank" of Sub-Inspector is not authorized to seize such narcotics drugs, psychotropic substances and controlled substances and other materials used in the manufacture thereof and any other Article which he has reason to believe to be liable to confiscation under this Act and any document or other Article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act specially in the light of section 2(e) KP Control of Narcotic Substances Act, 2019.
8. There is no previous history of the accused/petitioner; therefore, needless to remark that mere heinousness of crime will not disentitle an accused to the concession of bail when ultimate conviction if any could repair the wrong caused by the mistaken relief of bail and such being the position the petition for the grant of bail is allowed and accordingly accused/petitioner is admitted to bail on furnishing bail bonds amounting to Rs. 6,00,000/- with two sureties each in the like amount to the satisfaction of Alaqa/Duty Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.
9. In case, the petitioner failed to produce Fards equivalent to the bail bonds, he may produce two Government Officials for the purpose or he may deposit the bail bond amount in cash before the Allaqa/Duty Judicial Magistrate, who shall further deposit the same in the Government Treasury. However, the petitioner in case of deposit bail bond amount in cash, shall also furnish undertaking to the effect that he shall neither shift his abode to any other place nor shall go outside the city and will appear in the trial Court whenever received notice from the learned trial Court.
10. Above are the reasons of short order of even date.
SA/173/P Bail granted.
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