Abdul Khaliq V. The State,

2023 M L D 98 [Balochistan (Sibi Bench)] Before Muhammad Hashim Khan Kakar and Gul Hassan Tareen, JJ ABDUL KHALIQ ---Applicant Versus The STATE--- Respondent Criminal Bail Application No. (s) 137 of 2022, decided on 31st August, 2022. (a) Control of Narcotic Substances Act (XXV of 1997) --- ----Ss. 51 & 9--- Possession of narcotics ---Bail---Scope ---Section 51 of Control of Narcotic Substances Act, 1997, transpires that bail shall not be granted to an accused charged with an offence where the offence is punishable with death--- Section 51 of Control of Narcotic Substances Act, 1997, provides a bar on grant of bail when the offence is exclusively punishable with death--- When the upper limit of the punishment is death and the lower limited is 14 years' impri sonment then it suggests an inference that grant of bail in the offence under S. 9(c) of Control of Narcotic Substances Act, 1997, is not barred---Grant of bail is barred when the offence is exclusively punishable with death. Abdul Shahid Qureshi v. The State 2003 PCr.LJ 202 ref. (b) Control of Narcotic Substances Act (XXV of 1997)--- ----S. 36---Qanun- e-Shahadat (10 of 1984), Arts. 59 & 60--- Report of Government Analyst --- Expert opinion---Facts bearing upon expert opinion--- Scope ---Since opinion of a che mical analyst is conclusive under S. 36(2) of Control of Narcotic Substances Act, 1997, and is relevant under Art. 59 of the Qanun- e-Shahadat, 1984, therefore, fact which supports or is inconsistent with such opinion, is also relevant under Art. 60 of the Qanun -e-Shahadat, 1984. (c) Criminal Procedure Code (V of 1898) --- ----S. 497--- Bail---Scope ---Bail cannot be withheld as punishment and benefit of doubt can be extended even at bail stage. Sarwar Khan Kakar for Applicant. Jameel Akhtar Gajani, Addition al Prosecutor General, Abdul Mateen, Deputy Prosecutor General, Awais Afzal, Assistant Commissioner Bakhtiar Abad, Muhammad Anwar, Investigating Officer and Miran Khan, Naib Tehsildar Levies for the State. Date of hearing: 25th August, 2022. ORDER GUL HA SSAN TAREEN, J. ---Accused -applicant Abdul Khaliq facing trial in case Crime No. 18/2022, dated 23rd May, 2022, under section 9(c), the Control of Narcotic Substances Act, 1997, ("CNSA"), registered at Police Station Bakhtiar Abad, was declined bail by the Special Judge, Control of Narcotic Substances Act, 1997, Sibi ("trial Court") vide order dated 6th July, 2022 ("impugned order").

2. The prosecution case as per contents of the Murasila is that on 23rd May, 2022, Naib Risaldar Meeran Khan along with other levies contingents was on road gasht. At about 05:30 p.m., near Shaheed Sawali Levies Chowki, a black colour Vigo vehicle bearing registration No. KC -5, was coming fast from Quetta towards Sindh. While overtaking, it fell down from the road. He along with levies contingents rushed to the site where he found four persons, occupying rear seat, wearing uniforms of forces. Among them, two were having walky- talky sets and rifles while the other had 9- MM pistol. The driver disclosed his name as Abdul Khaliq Khan son of Abdul Razzaq Khan. One from the persons occupying the rear seat Muhammad Qaseem son of Abdul Ghani succumbed to the injuries at the spot. The person occupying the front seat disclosed his name as Muhammad Asif. On search of the vehicle, 70 packets Charas were recovered from beneath the seats. The accused -applicant was apprehended at the spot and a Murasila was sent to the Levies Station for registration of the case, in pursuance whereof, FIR No. 18/2022 was registered.

3. Learned counsel for the accused -applicant Mr. Sarwar Khan Kakar, Advocate contended that the contraband Charas was sent to the Forensic Science Laboratory ("FSL"). The Narcotics Testing Laboratory found that the substance does not contain any narcotic and psychotropic drug subs tance. The learned counsel also referred to the cross -examination of PW-1. Concluding his arguments, he requested that the accused- applicant may be enlarged on bail.

4. Conversely, Mr. Jameel Akhtar Gajani, the learned Additional Prosecutor General, suppor ted the bail refusal order.

5. We have heard arguments and the record perused.

6. Before dilating upon merit of the case we prefer to discuss first embargo imposed by section 51 of the CNSA, on grant of bail with regard to the case of accused- applicant. Fo r ease of reference, sections 9(c) and 51 are reproduced hereunder: "9. Punishment for contravention of sections 6, 7 and 8. ---whoever contravenes the provisions of sections 6, 7 or 8 shall be punishable with--- (a) ----- (b) ----- (c) death or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up -to one million rupees, if the quantity; of narcotic drug psychotropic substance or controlled substance exceeds the limits specif ied in clause(b). Provided that if quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life" 51. No bail to be granted in respect of certain offences: ---(1) Notwithstanding anything contained in sections 496 and 497 of t he Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death. (2) In the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount."

7. The section 51 of CNSA transpires that bail shall not be gran ted to an accused charged with an offence where the offence is punishable with death. Whether section 51 of the CNSA places an embargo in case of grant of bail in an offence under section 9(c) of the CNSA, as the said offence likewise is punishable with de ath. Section 51, of the CNSA provides a bar on grant of bail when the offence is exclusively punishable with death. When the upper limit of the punishment is death and the lower limit is 14 years' imprisonment then it suggests an inference that grant of ba il in the offence under section 9(c) of the CNSA is not bar. It is bar when the offence is exclusively punishable with death. Reliance is placed on case Abdul Shahid Qureshi v. The State, published in 2003 PCr.LJ 202. Anyhow while granting bail in a case under section 9(c) of the CNSA, though the alleged offence falls within the ambit of prohibitory clause of section 497(2), Cr.P.C, yet the perusal of record shows, after the alleged recovery, the contraband Charas was sent to the FSL for chemical analysis. The seven (07) reports of FSL dated 31st May, 2022 are stereotyped and contain the findings which are reproduced hereunder: "8. Opinion/conclusion: The submitted sample has been analyzed through above mentioned test and finally found not identified as Has hish and does not contain any narcotic and psychotropic drug substances. The column No. 3 of para No. 7 is reproduced for more better understanding of the matter. a. After presumptive and confirmative tests, results of the tests are Negative. b. As per test protocol the submitted sample is not identified as Hashish." The complainant Meeran Khan appeared in the trial Court as PW- 1. He while replying to suggestion No. 39, replied as under:

Since in the cases under CNSA, much reliance is placed upon the report of the Chemical Analyst, therefore, the opinion of the chemical analyst is of much significance in view of section 36(2) of the CNSA which reads: "(2) Notwithstanding anything contained in any other law for the time being enforced, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall, unless rebutted, be conclusive." Since the opinion of a chemical analyst is conclusive unde r section 36(2) of the CNSA and is relevant under Article 59 of the Qanun- e-Shahadat Order, 10 of 1984 (Q.S.O), therefore, fact which supports or is inconsistent with such opinion, is also relevant under Article 60 of the Q.S.O. For ease of reference, Arti cle 60, Q.S.O is reproduced hereunder: "60. Facts bearing upon opinions of experts. Facts, not otherwise relevant are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant." In this case the opinion of the chemical analyst prima facie makes out a case of further inquiry per section 497(2), Cr.P.C. as the recovered contraband is, prima facie not Charas. The bail cannot be withheld as punishment and benefit of doubt can be extended even at a bail stage.

7. Resultantly, this bail application is accepted and the accused -applicant is released on bail subject to furnishing bail bond in the sum of Rs. 500,000/ - (Rupees five hundred thousand only) with PR of the like amount to the satisfaction of the Additional Registrar of this Court or the trial Court. The observations made hereinabove are tentative assessment just for the purpose of the disposal of the instant bail application and not intended to influence the mind of the trial Court which is free is apprais e the evidence strictly in accordance with law.

8. During the course of arguments, we were surprised to come across the fact that according to the report of chemical analyst, the recovered contraband is not Charas. On Court's notice, the Assistant Commissioner Bakhtiar Abad along with Investigating Officer of the case and complainant appeared in person before the Court. The Assistant Commissioner stated that in this case, the Director General, Levies has already ordered an inquiry under the Chairmanship of the Deputy Commissioner Bakhtiar Abad to find out the true facts of the case and also produced a letter bearing No. 645 dated 18th August, 2022. Before parting with the order in hand, while keeping in view the peculiar circumstances of the case, particularly the allegations levelled against the investigating agency and FSL report, Investigating Officer and Assistant Commissioner Bakhtiar Abad were directed to appear in person who stated that the Director General Levies has already constituted a committee t o find out true facts. After completion of the inquiry, the Deputy Commissioner shall place outcome of the inquiry report before Registrar of this Court for our perusal in Chamber. SA/170/Bal. Bail granted.