1. ' MRS. QAISER IQBAL, J.---Applicant Muhammad Farrukh Khan Zai has resorted to file post arrest bail application in Crime No.2 of 2007 under section 9(c) Control of Narcotic Substances Act, 1997 registered at P.S. Excise (PIO) Karachi.
2. ' Succinctly the prosecution case as emerges from the First Information Report lodged on 11-2-2007 reflects that Inspector Muhammad Iyaz Baloch along with is staff was patrolling in mobile vehicle at Quaid-e-Azam International Airport Karachi on spy information in presence of the mashirs apprehended applicant found one envelope in his hand along with documents pertaining to his identity. Ticket of Colombo in the name of the applicant. On checking of the bag, the applicant was found carrying 265 leather belts. On opening of belts found containing small packets of heroin powder with net weight of 2.5 K.G. a sample of 50 grams with thellies (packets) was separated for chemical examination, the remaining property was sealed in plastic bags. The bail application filed before Special Judge was rejected hence this bail application.
3. Mr. Shaukat Hayat has contended that the alleged recovery of 2.5 K.G. Was effected from 265 leather belts in the form of small bags out of which 11 plastic bags of tube size were sent to the chemical examiner with gross weight of 54.400 grams and were found containing heroin powder. It is next urged that the investigating officer had secured powder in small bags therefore entire property was required to be sent to chemical analysts to prove that each one contained heroin powder, thereby a small quantity of recovery heroin powder was proved in consonance of law. In support of the above contentions reliance has been placed on Waris Khan v. The State (2006 SCM R 1051), Muhammad Hashim v. State (PLD 2004 SC 856), Dost Khan v. The State (2007 SCM R 1437), Sahib Zada Jehangir v. The State through ANF (2007 PCr.LJ 1113), Nadeem v. The State (2007 M LD 1092), Muhammad Farooq Khan v. The State (2007 PCr.LJ 89) and Muhammad Nawaz v. The State (2007 M LD 1846). It appears that total commodity recovered from the possession of the applicant was not sent to the chemical examiner/ analyzer nor it would be presumed that sample was taken out from each and every bag.
4. ' Learned State counsel has opposed the bail application on the ground that the mode of investigation by the complainant was in conformity with law on account of provided under section 51 of Control of Narcotic Substances Act, 1997 on the grant of bail the applicant is not entitled to the concession of bail.
5. ' Upon appraisal of the contention of the learned counsel for applicant it transpires in case of Ali Muhammad v. The State (2003 SCM R 54) accused was convicted by the trial Court, appeal was dismissed by a Division Bench of this Court on the premises that 10 grams separated from one bag of 30 K.G. Charas was enough to hold the conviction of the accused. In case of Muhammad Hashim v. The State (PLD 2004 SC 856) on the strength as that of convict in case of Muhammad Ali have given the verdict as under:-- "It is a jail appeal, therefore, record of the case perused with the assistance of learned State counsel carefully it emerges therefrom that vide recovery memo. Exh.P/1-A.4 grams of charas was taken out from total 288 rods. Nothing is available on record to show whether sample for examination by Chemical Examiner was taken out from each rod to ascertain that 288 rods were of charas or some other commodity, having resemblance with the colour of charas like oil Cake
(Khal) etc. It is to be noted that under Act, 1997, stringent sentences have been provided if offences charged against the accused within any component of section 9 is proved. Therefore, for such reason, Act, 1997 has to be construed strictly and the relevant provisions of law dealing with the procedure as well as furnishing the proof like the report of expert, etc. Are to be followed strictly in the interest of justice, otherwise in such like cases is would be impossible to hold that total commodity recovered from his possession was charas. However, in given facts and circumstances of the case, it would be presumed that sample was taken out from only one rod. As far as remaining rods are concerned, in absence of any sample taken out from them, it would not be possible to hold that they were the rods of charas or otherwise. Therefore, taking into consideration this aspect to the case, we are of the opinion that for such reason, the case of the prosecution has become doubtful, as such, sentence awarded to appellant by the trial Court and maintained by the High Court is not sustainable."
6. ' In Cr. Petition No. 2-K/2002 reported in Daulat Khan v. The State (2007 SCM R 1437) the leave has been granted to consider the effect of withdrawal of sample of contraband charas from one packet for sending the same to the chemical examiner for examination. On account of the conflicting views of Hon'ble Supreme Court, one beneficial to the accused be extended, in this view I am supported from the dictum laid down in the case of Muhammad Nawaz v. The State (2007 M LD 1846).
7. Having regards to the above facts and circumstances of the case the applicant Muhammad Farrukh Khan Zai is admitted on bail subject to furnishing solvent surety in the sum of Rs.200,000 (Rupees two hundred thousand only) with two sureties and P.R. Bond in the like amount to the satisfaction of the trial Court.