1. ' Learned counsel argued that he is pressing his bail application on the ground that out of 15 Kgs., Charas recovered in the shape of patty (strips) from a carton only 500 grams has been sent. He submits that in these circumstances at the most the accused can be saddled with the responsibility to the extent of 1 Kg. From which a piece of 500 grams has been separated. He submits that the superior Courts have consistency in grant of bail to the accused persons on the ground that at the time of grant of bail amount of narcotic is to be taken in mind from which sample has been obtained and not the entire lot which has allegedly been recovered. He has referred an unreported order of this Court, dated 15-1-2006 of which one of us (Justice Nadeem Azhar Siddiqi) was member of the bench as well as in the cases of Muhammad Hashim v. The State PLD 2004 SC 856, Waris Khan and 2 others v. The State 2006 SCMR 1051, Shahmore v. The State and PLD 2003 Karachi 230.
2. ' On the other hand Mr. Muhammad Ismail Bhutto learned counsel for the State has argued that the sample obtained from a piece or packet can verify the contents of the entire lot and it is not necessary that samples from each and every slab of charas is to be sent for chemicalexamination.
3. He submits that 500 grams Charas was sent which is sufficient to testify the entire lot. He has relied upon the case of Afzaal Ahmed v. The State 2003 SCMR 573.
4. ' After hearing the arguments and keeping in view section 9 of the CNS Act, 1997 we are of the opinion that the punishment to an accused person has been provided keeping in view the quantity of narcotic which is recovered from an accused person and to establish, that entire quantity was specific substances, for which accused has been branded, need verification and for that purpose it has been made practice by the prosecution that the sample is obtained from each piece or packet and A sent for chemical examination to establish that the said piece or packet contained same substances which has been verified by the Chemical Examiner. From the subsections of section 9 it can be gathered that a slight increase in the quantum of narcotic substance can enhance the punishment exorbitantly and even sentence of death can be provided. In the circumstances when a slight change in the quantum of substances is affecting very seriously the life of human being then the allegation of prosecution in respect to the recovery of specific substance is to be checked very strictly and to be proved beyond doubts. We have also gone through the above authorities as well as the other authorities of superior Courts and have found that in most of the cases the view of the Peshawar High Court is that the accused can only be saddled with the responsibility of the substance of which a piece has been separated and has been sent for chemical examination. In this reference cases of Mst. Anara Bibi v. The State 2005 MLD 386, Muhammad Uzair Siddiqui v. The State PLD 2005 Peshawar 81, Jangres Khan v. The State 2005 PCr.LJ 1506 can be referred.
5. ' The Hon'ble Supreme Court in the case of Muhammad Hashim v. The State PLD 2004 Supreme Court 856 which is a full bench judgment, has observed that when out of 288 rods allegedly recovered from the accused persons 4 grams has been taken as sample for chemical examination then accused cannot be made answerable to the entire lot, while in the case of Waris Khan and 2 others v. The State 2006 SCMR 1051 recovery of 48 Kgs., was not taken conclusively when only one packet was sent for chemical examination. This Court has taken view in the case of Nazan Shah v.
6. The State 1998 PCr.LJ 1540 that when half kilogram charas was sent for chemical examination out of 2 Kgs., then the accused cannot be held responsible for entire lot. In another judgment in the case of Muhammad Chuttal v. The State reported in 2001 YLR 654, it has been held that when one Kg., Charas out of 30 Kgs., has been sent for chemical examination then accused can only be dealt with keeping in view his involvement in respect to 1 Kg., Charas only. In another case of Imtiaz Ali v.
7. The State reported as 2006 MLD 1961 it has been held that when 20 Kg.,Charas is recovered in the shape of Pattis and plates and only 250 grams was sent for chemical examination and when it was not mentioned whether the sample has been taken from each patti/plate then the punishment for entire lot cannot be provided. In another unreported judgment, dated 15-1-2007 in Criminal Bail Applicant No,633 of 2006 (Noor Muhammad v. The State) it has been observed that from 11 shoppers allegedly recovered from the accused, sample was not taken from each shoppers then it could not be established that all the shopper contained contraband substances, therefore, accused cannot be burdened with the allegation of 11 Kgs., Charas. In the said authority, reliance has been placed on the case of Imtiaz Ali v. The State reported as 2006 MLD 1961. The authority which has been cited by the learned State counsel is in respect to the recovery of 600 grams Heroin out of which 1 gram was sent for chemical examination and it was held that the quantity of the sample was not fatal to the prosecution case. With utmost respect to the Hon'ble Supreme Court, we observe that in the said authority it has not been mentioned that 600 grams of heroin was in different packets or in a single packet or pieces therefore this authority does not contradict the above view taken in the other authorities. At the most this authority justify that any quantity of sample, which is sufficient for examination, can be obtained. The view of the Sindh High Court in the case of Fazal Shah v. The State reported in PLD 1999 Karachi 465 is that when 150 grams Charas was sent from 2 Kgs., of charas, allegedly recovered from the accused, then the accused can be burdened with entire recovery. In that case this Court has also taken the view that there is no specific provision or settled principle of law as to whether entire quantity or what quantity of sample to be seat for chemical examination. Moreover in the said authority it is not apparent as to whether 2 Kgs., Charas, allegedly recovered from the accused, was in the shape of patties or in a separate packets or it was a lump of 2 Kgs., in such event it cannot be said that single sample from one packet/patti will testify material contained in other packet/patties etc. After going through the authorities as well as keeping in view section 9 of the Act, 1997 we are of the view that when the punishment is provided on the basis of quantum of recovery of narcotics then it should be main criteria for the prosecution to establish that entire recovered substance is a narcotic etc. And for that purpose it has to take all pre-cautions and make the case fool proof. The case against the accused is to be proved till the time of finish by establishing that the accused was involved in the matter of specific quantity of narcotic substance of which allegation has been levelled. We have noticed and it is also a matter of routine that entire recovered narcotic substance in a sealed condition remained a case property in police malkhana for a logner period and produced in Court at the time of examination. The authenticity of that substance can be questioned at any time, until a piece for chemical examination is taken from each packetor patti or whatever may be the shape of the narcotic substance. The case property remained in possession of complainant which in most of the cases is the State through the police itself therefore, the possession of the incriminating article in the custody of complainant itself is a matter of concern, it can also happened that our honest and God fearing police officials may sometime change the narcotic substance with other similar substance to gain some money as in some cases we have noticed that F.I.Rs have been lodged against the police officials by other Govt. Agencies that the narcotic substance has been changed by the complainant of the F.I.R. Himself as in place of charas oil cake or stale charas etc. By mixing with other substance has been placed. Now-a-days anything can be expected keeping in view the trend of the society and specially of the police therefore, in such a situation it will be advisable that in case of narcotic substance, the entire recovered property, after obtaining sample from each pack/piece, be deposited with the Court to be kept in strong room or some other proper arrangement be made. In such a way it will be possible that justice is done to a person against whom an allegation has been levelled. At the moment it has become easier for the police to show alleged recovery of any quantity and sending small quantity of narcotic for Chemical Analyzer and after producing two police officials as witnesses, in all respects, get the accused punished to whatever sentence they want. In such circumstances, certain instructions and steps are necessary keeping in view section 516-A of Criminal Procedure Code, so the accused persons may not be left at the mercy of police who are appearing in such type of cases as a complainant, witness and custodian of the property.
8. ' In the circumstances, at this stage we are of the opinion that until prosecution establishes the entire quantity of narcotic of which accused has been allegedly involved is established to be narcotic through sample from each pack, he is entitled to bail in the sum of Rs.500,000 and P.R.
9. Bond in the like amount to the satisfaction of the trial Court.