2024 S C M R 913

[Supreme Court of Pakistan]

Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi and
Musarrat Hilali, JJ
SAGHEER AHMED---Petitioner
Versus
The STATE and another---Respondents
Criminal Petition No. 1241-L of 2023, decided on 13th March, 2024.
(Against the order dated 20.10.2023 of the Lahore High Court Lahore
passed in Cr.Misc. No. 62731-B of 2023).
Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(1), Sr.
No. 3(c)---Control of Narcotic Substances (Government Analysts) Rules,
2001, R. 4(2)---Constitution of Pakistan, Art. 185(3)---Possession and
transportation of 1420 grams charas---Bail, grant of---Further inquiry---
Delay in sending samples to the Forensic Science Laboratory---Safe
custody of samples with the police not established---Accused was
arrested on the same day of the registration of the FIR---As per the
report of the Punjab Forensic Science Agency, the sample of the charas
was received by Forensic Science Laboratory after a delay of more
than a month---Provisions relating to the sending of samples to the
forensic Science Laboratory were 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 was nothing on record
to show to whom the alleged recovered narcotics were handed over at
the police station for safe custody during that period---Fact of the safe
custody of the recovered narcotic substance is to be established or
proved by the prosecution during the trial; however, the unreasonable
delay of more than one month in the present case could be considered
at the time of deciding the bail, which made the case of the petitioner
(accused) one of further inquiry---Accused was behind the bars since
his arrest and the trial had not concluded so far, even after a
considerable period had elapsed---Moreover, the maximum sentence
for the alleged offence was fourteen years, and as such, it did not
attract the bar of Section 51 of Control of Narcotic Substances Act,
1997---Petition was converted into an appeal and the same was
allowed, and the petitioner was allowed bail after arrest.
Saeed Ahmed v. State through P.G. Punjab and another PLJ 2018 SC
812 and Abbas Raza v. The State 2020 SCMR 1859 ref.
Akhtar Nawaz Raja, Advocate Supreme Court (via video link Lahore)
for Petitioner.
Irfan Zia, D.P.G. and Muhammad Mushtaq, S.I. for the State.
Date of hearing: 13th March, 2024.
ORDER
SYED HASAN AZHAR RIZVI, J.---The petitioner has invoked the
jurisdiction of this Court under Article 185(3) of the Constitution of the
Islamic Republic of Pakistan, 1973, calling in question the order of the
Lahore High Court, Lahore, dated 20.10.2023 whereby his application
for bail after arrest in FIR No. 6996/23 dated 06.08.2023 for the offense
under Section 9(1)(3)(c) of the Control of Narcotic Substances Act, 1997
("Act of 1997") registered at Police Station, Kahna, Lahore, was
dismissed.
2. The brief facts of the case are that on 06.08.2023 at about 01:55
a.m. the petitioner was intercepted by the Complainant and other
police contingents at Kachawa Graveyard and was found carrying
charas weighing 1420 grams; hence this case.
3. At the very outset, it has been argued by the learned counsel for
the petitioner that the petitioner has been falsely roped in the present
case against the facts and circumstances. He contends that there is a
delay of more than one month in sending the case property to the
Forensic Science Laboratory for analysis, which raises serious
questions regarding the safe custody as well as the transportation of
the case property and creates doubts in the story of the prosecution.
Lastly contends that the learned High Court has not properly
evaluated the material available on the record, therefore, by declining
bail to the petitioner grave miscarriage of justice has been done.
4. On the other hand, the learned Law Officer argued that the
petitioner is specifically nominated in the FIR and from his possession
a considerable quantity of narcotics has been recovered, therefore, he
does not deserve any leniency from this Court.
5. We have heard learned counsel for the parties at some length and
have perused the material available on the record.
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.
7. The accused is behind the bars since his arrest and the trial has
not concluded so far, even after a considerable period has elapsed.
Moreover, the maximum sentence for the alleged offence is fourteen
years, and as such, it does not attract the bar of Section 51 of Act of
1997. The liberty of a person is a precious right guaranteed under the
Constitution of the Islamic Republic of Pakistan, 1973. The denial of this
right should only occur when guilt is established without a second
thought.
8. Keeping in view the facts and circumstances narrated above and
the quantity of recovered narcotic substance and seeking guidance
from the cases titled Saeed Ahmed v. State through P.G. Punjab and
another (PLJ 2018 SC 812) and Abbas Raza v. The State (2020 SCMR
1859), this petition is converted into an appeal and the same is allowed.
The petitioner is allowed bail after arrest subject to his furnishing bail
bonds in the sum of Rs.100,000/- (Rupees one hundred thousand only),
with one surety in the like amount, to the satisfaction of the learned
trial Court. He shall be released forthwith, if not required to be detained
in any other case.
Before parting, it is clarified that the observations made
hereinabove are tentative in nature and the Trial Court shall be free to
decide the case, on merits, without being influenced in any manner
from the same, strictly in accordance with law. Above are the reasons
of our short order of even date.
MWA/S-9/SC Bail granted.
;