ScriptScript2010 S C M R 1160

[Supreme Court of Pakistan]

Present: Zia Perwez, Syed Zawwar Hussain Jaffery and Sarmad Jalal Osmany, JJ

KHUDA BUX----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.13-K of 2009, decided on 11th May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Constitution of Pakistan (1973),
Art.l85(3)---Possession of narcotics---Bail, grant of---Six separate pieces were recovered---Two pieces
weighing about 50 grams were forwarded for Chemical Examination, which prima facie did not appear
either to be random or representative sample---Question of imposition of maximum sentence, under
circumstances, was to be determined during trial---Accused had already remained under custody for over
9 months---Prima facie case for grant of bail was made out, petition for leave to appeal was converted
into appeal and accused was admitted to bail, in circumstances. 

Nadir Khan and others v. The State 1988 SCMR 1899 ref.

Mahmood A. Qureshi for Petitioner.

Shahadat Ali Awan, Prosecutor-General, Sindh for Respondent.

 
ORDER

ZIA PERWEZ, J.---This petition is directed against the order dated 3-4-2009 whereby the learned single
Judge of the High Court of Sindh, Circuit Court, Hyderabad dismissed Criminal Application No.S-85 of
2009 seeking bail for the offence recorded under F.I.R. No.161/2008 of Police Station `A' Section
Nawabshah, for the offence under section 9(c), Control of Narcotic Substances Act, 1997.

2. It is stated in the F.I.R. that the accused on seeing police party near Taj Colony on 28-7-2008 at about
1-30 tried to escape. After his arrest in presence of Mashir one plastic packet containing six pieces of
Charas weighing 1300 grams were recovered. The recovered pieces were sealed into separate packets out
of which 2 small pieces weighing 50 grams were sealed in one packet and forwarded for chemical
examination.

3. Mr. Mehmood A. Qureshi learned Advocate Supreme Court for the petitioner contended that the case is
lodged due to political rivalry with Shar Tribe of the area in this regard he has also referred to various
F.I.Rs. available on record showing recovery of Narcotic Substance against other member of the same
Shar Tribe in like manner and circumstances. He further contended that no sample has been drawn from
the recovered pieces. Two small pieces forwarded for chemical analysis were not the part of the large
pieces therefore they do not constitute representative sample drawn from such pieces. Therefore, even the
positive chemical report will support recovery of Narcotic Substance only to the extent of 50 grams and at
the most be awarded a sentence upto 2 years only on conviction for such quantity.

4. Mr. Shahadat Ali Awan learned Prosecutor-General, Sindh has opposed this petition. He contended
that the recovery as reflected in the F.I.R. is the only determining feature in such cases. That the merits of
the case are not to be examined at the bail stage and application is liable to be dismissed he relied on the
case of Nadir Khan and others v. The State 1988 SCMR 1899.

5. Perusal of record in the light of the argument advanced before us and a plain reading of the F.I.R.
shows that six separate pieces were recovered. Two pieces weighing about 50 grams were forwarded for
chemical examination which prima facie do not appear either to be random or representative sample. The
question of imposition of maximum sentence under the circumstances is to be determined during trial.
Petitioner has already remained under custody for over 9 months.

6. In the case of Nadir Khan (supra) involving recovery of 49 bags of narcotic substance it was held that
in view of the large number of bags it was not necessary to take sample from each bag. The samples
drawn in a random manner from different bags constituted representative samples. We are in respectful
agreement with the view however, two separate pieces not drawn from the large pieces as is reflected in
the F.I.R. can hardly be considered as representative sample drawn from the quantity recovered, therefore,
this case is distinguishable on fact.

7. For the foregoing reasons as a prima facie case for grant of bail is made out we convert this petition
into appeal and admit the petitioner to bail subject to furnishing of solvent surety in sum of Rs.100,000
with two sureties each in the like amount before the learned trial Court.

H.B.T./K-14/SC                                                                                              Bail granted.