1. ' ABDUR RAHMAN FARUQ PIRZADA, J.---Through this bail application the applicant seeks bail in case vide Crime No,39/2006, P.S Civil Line, Larkana, for offence under section 6/9 C.N.S. Act 1997.
2. ' As briefly stated the prosecution cases as per F.I.R. Registered by S.I.P. Khan Muhammad Hisbani with Police Station Civil Line, Larkana, on 18-6-2006, at 1-00 p.m, is that on 18-6-2006, the complainant along with his subordinate staff left police station, being in police uniforms and armed, in Government vehicle vide Roznamcha Entry No,13/18-6-2006, at 11.30 p.m. For patrolling within their jurisdiction. At about 1200 hours when they reached near the blue-line office, they saw one person carrying one white coloured bag on his shoulder, who tried to slip away while seeing police personnel, but he was apprehened on the spot. On enquiry he disclosed his identity to be Parvez son of Ghulam Shabir Unar. The bag in possession of accused was secured, which was found to contain charas in shape of patties/slabs, which were five in number. Each patti/slab was weighed to be one kilogram. From the recovered property, one slab of one kilogram was sealed separately for sample. Allegedly, accused disclosed that he was taking charas for his personal use as well as for sale purpose. The mashirnama was prepared in presence of mashirs, namely, A.S.-I.
3. Abdul Fatah and P.0 Sabir Ali. Thereafter the F.I.R. Was lodged at Police Station Civil Line, Larkana.
4. ' Learned counsel for the applicant has argued that allegedly five slabs of charas were recovered from the applicant, but only one slab was sent for chemical analysis, as such it would not be possible to ascertain as to whether the remaining four slabs actually contained charas. He has further contended that since the quantity of charas which was sent for chemical analysis weighed one kilogram, hence the chemical report would be conclusive only to the extent of one kilogram of charas; by virtue of that the alleged offence would be covered by section 9(b) C.N.S. Act 1997, which could be punishable to the extent of seven years. He has further submitted that the applicant has continuously remained in custody in the present case since 18-6-2006.
5. ' Learned State Counsel has opposed the bail application, while submitting that the alleged offence involves the quantity of five kilograms of charas and is prima facie covered by section 9 (c) C.N.S. Act 1997.
6. I have heard the learned counsel for the applicant and the learned State counsel. It is admitted position that out of five patties/slabs of charas, only one patti/ slab was separately sealed and sent for chemical analysis. Fairly speaking, the chemical report was not sought for the remaining four patties/slabs, and at the most the chemical analysis report could be obtained with regard to one patti/slab which weighed one kilogram. At the present stage, when the chemical report available on record is to the extent of one slab weighing one kilogram, it cannot be ascertained as to whether the remaining four slabs actually contain charas or not. For the purpose of bail the benefit of doubt arising at this stage, in view of the tentative assessment of the material available on record, can be accorded to the accused.
7. ' Learned counsel for the applicant has placed reliance upon the D.B authorities, Imtiaz Ali v. The State 2006 MLD 1961 (Karachi) and Nadeem v. The State (2007 MLD 1092) in these authorities the facts of the case are virtually identical to the facts as mentioned in the present case.
8. ' In 2006 MLD 1961, it was laid down as under:-- "The point in favour of the accused/ applicant, involved in the case, is that the contents of the F.I.R.
9. And the mashirnama of recovery and arrest clearly mention that 20 kilograms of Charas were allegedly recovered from the possession of the applicant in the shape of "Patties/ Plates" but the number of the patties/ plates is not mentioned either in the F.I.R. Or in the mashirnama. Same further stated that the quantity of 250 grams Charas was taken out of the entire recovered material for the purpose of chemical analysis, but without making any further mention as to whether the same was taken out separately from each of the patties/plates, or only from one of the same, and with no further mention if the sample was taken out from the patties separately; so also, if taken out separately, there is no mention that the same was ever sealed separately by the recovery officer.
10. ' In PLD 2004 SC 856 Hon'ble Supreme Court acquitted accused of the said reported case with the observations that the narcotics material having been recovered in the shape of rods and the sample not having been taken out of the same, separately, no conclusive finding could be recorded that all the rods were of contraband narcotics; hence the proper and final findings is yet to be recorded as to all the "patties" being of Charas and not otherwise."
11. ' In 2007 MLD 1092 it was laid down as under:- "After hearing the arguments and keeping in view section 9 of the C.N.S. 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 of specific substance, 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 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 case of Mst. Bibi v. The State 2005 MLD 386, Muhammad Uzair Siddiqui v. The State PLD 2005 Peshawar 81, Jangrez Khan v. The State 2005 PCr.LJ 1506 can be referred."
12. ' It was further observed in the above mentioned authority:- "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 narcotic then it should be main criteria for the prosecution to establish that the entire recovered substance is a narcotic etc. And for that purpose it has to take all precautions and make the case fool-proof.
13. 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 that 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 longer 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 packet or 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 happen 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 Government 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 let at the mercy of police who are appearing in such type of cases as a complainant, witness and custodian of the property."
14. ' The learned. State counsel cited case of Fazal Ahmed v. The State (2003 SCMR 573). I have gone through the cited authority, and in my humble view the facts of this case are distinct from the facts of the present case. In the ruling reported in 2003 SCMR 573, the sample was taken from the quantity of heroin which was recovered as a whole from the accused, whereas in the present case the Charas was allegedly found in the shape of five separate slabs/ patties, out of which only one slab/ patti was sent for chemical analysis report. Moreover this ruling of Hon'ble Supreme Court was fully discussed by the Hon'ble Division Bench of this court in 2007 MLD 1092, and by way of an elaborate order, the bail was granted to the accused.
15. I have given considered thought to the facts and circumstances of the case. Admittedly the charas in question was found in the shape of five separate slabs/patties, however only one slab/patti was sent for the chemical analysis report. Obviously no Expert opinion can be available regarding, remaining four slabs/patties, as to whether they contained any narcotic substance or not. The present case is clearly on a different footing from those cases, where out of one common stock of narcotics, a sample is taken out; in the latter case there can be no doubt about the nature of the narcotic substances as a whole, even if a meager quantity from that entire compact substance is taken out for chemical analysis report.
16. ' Since only one slab/ patti of charas was separately sent for the chemical analysis report, which weighed one kilogram, the chemical report would be conclusive only to the extent of one kilogram of charas. The question whether the entire recovered substance is covered by the definition of narcotics would be properly determined at the stage of trial, after sufficient evidence is brought on record. However at present stage, as a result of tentative assessment, the chemical analysis report 4o the extent of only one slab/patti weighing one kilogram, prima facie may constitute an offence under section 9(b), C.N.S. Act 1997, which is punishable to the extent of seven years.
17. ' As per prosecution case, the incident occurred near Blue-line office, Ghinti crossing of Larkana, which is apparently situated in the midst of the city, being a thickly populated area. However, no private person from the locality was associated as witness/ mashir in the case. Although as per section 25 of C.N.S. Act 1997, the provisions of section 103, Cr.P.C. Would not be applicable, but still each case has to be seen it its true perspective, with regard to the background and natural circumstances. In present case as a natural circumstance, some persons from the locality must have been available who had witnessed the incident. It is but natural to expect that the police ought to have engaged some private persons belonging to the locality of place of incident, as natural witnesses of the case. In that event more credibility would have been attached to the police proceedings.
18. In view of the foregoing facts and circumstances of the case, and the rulings of law of Division Bench of this court cited at the bar, I find the case of applicant covered by the provisions of section 497(2), Cr.P.C. Accordingly bail application is allowed, and the applicant shall be released on his furnishing solvent surety in the sum of Rs,500,000 (Rupees five lacs), and P.R bond in the like amount to the satisfaction of trial Court.