1. 'SALMAN ANSARI, J.---This bail application has been moved on behalf of applicant Liaq Shah son of Badam Khan, who has been implicated in this case on lodging F.I.R. No,14 of 2008 and a case under section 6/9(c) of the C.N.S. Act, has been registered.
2. 'Brief facts of the case being that on 20-6-2008 S.-I/S.H.O. Asif Ali of Police Station A.N.F. Clifton Karachi, received an spy information that narcotic peddlers Awal Khan and Liaq Shah were present at the last stop of Muslim Coach, Kemari Karachi. On arrival of the raiding party they found three persons present there, two armed with pistols. Upon seeing the police party an encounter took place whereby one passerby was injured. Police managed to apprehend the applicant/accused Liaq Shah and recovered from his possession a pistol and one shopping bag containing 1300 of Charas while the other disclosed his name as Zarkan Khan. Both the accused were charged under section 9(c) of the C.N.S. Act, 1997 and the Arms Ordinance for firing on the raiding party.
3. 'Accused/applicant Awal Khan was granted bail by the learned Special Judge Court No,1, C.N.S. Karachi, while the bail application of the present applicant/accused was rejected.
4. ' The learned counsel for the applicant/accused has argued that the injured person namely Fazal- ur-Rehman has exonerated the accused and this has been mentioned in the order of the learned Special Judge. The information was that allegedly three persons were selling narcotics, it is a matter of further inquiry as to which accused were selling the narcotics and which were standing by. The learned counsel has relied upon 2000 PCr.LJ. 657 (Karachi) (Gul Hassan Dero v. The State), in which the narcotics substance recovered exceeding 1 kilogram but not 10 kilograms. The embargo of bail contained in section 51(1) of the C.N.S. Act, did not apply hence the accused were granted bail, 2004 YLR 439 (Taj Ali Khan v. The State), in which 500 grams of Charas were recovered and it was held that it was a borderline case between clauses (b) and (c) of section 9 of the Control of Narcotic Substances Act, 1997 and whether under such circumstances maximum punishment of 14 years provided in the alternative would be awarded or not and the accused were granted bail.
5. ' The learned State Counsel has opposed the bail application and submitted written arguments that section 51 of C.N.S. Act, 1997 provides punishment for life imprisonment or death in such cases and that the recovery has been made, chemical report is positive and the affidavit of the injured person exonerating the accused has no evidentiary value and the bail should be rejected.
6. Having heard arguments of the learned counsel for the applicant/accused and the State Counsel and perused the case law cited, considering that the co-accused Awal Khan has been granted bail by the Special Judge Court No,1, C.N.S. Karachi, A in my opinion, there is very little difference in the allegations against the accused person who has been granted bail and that of the present applicant/accused. No matter whether the accused granted bail had run away from the spot but he was named in the F,I,R., even otherwise considering that the facts of the case fall within the ambit of the citations relied upon as above in my opinion, the case of the applicant/accused would fall on the borderline of the offense under sections 9(b) and 9(c) of the C.N.S. Act, it has yet to be seen whether the maximum punishment would be awarded to the accused under the circumstances, which would "need discussion and further inquiry". Considering that an affidavit has also been filed by the injured person in this case which has been discussed by the learned Judge in his order rejecting the bail application of the applicant/accused, its evidentiary value is yet to be seen nevertheless, I find the case of the applicant being one of further inquiry. I therefore, allow bail to the present applicant on his furnishing surety in the sum of Rs,2,00,000 (Rupees Two lacs) and P.R. Bond in the like amount to the satisfaction of the trial Court.