1. ' IMAM BUX BALOCH, J.--- Applicant is seeking bail in Crime No,95/2009 registered with Police Station Taluka for an offence under section 9(c) C.N.S. Act, 1997.
2. ' Briefly, the facts of prosecution case as per F.I.R. Are that on 25-11-2009. Inspector Aijaz Ali Massan S.H.O. Police Station Taluka along with his subordinate staff was on patrol duty within his jurisdiction, during the course, he receiving spy information about presence of a person at Syed Mohsin Shah Road carrying Charas on which they proceeded at the pointed place and reached there at about 4-30 p.m. Where one person was found standing with a black colour plastic bag. On seeing the police party, the said person tried to slip away but was apprehended who disclosed his identity to be the present applicant and later in presence of official Mashirs namely A.S-I. Gada Hussaisn and HC Altaf Hussain, the personal search of accused/applicant was taken under which two currency notes of Rs,50 were recovered from his side pocket of shirt and 1100 grams of Charas was secured from said plastic bag in different pieces, out of which 200 grams were sealed separately for chemical analysis for which accused disclosed that he intended to sell it and then accused was arrested and necessary Mashirnama was prepared and subsequently, the accused arrested along with case property recovered from his possession was brought at P.S and the F.I.R.
3. Was lodged to the effect.
4. ' After usual investigation, the applicant/accused was sent up to stand trial before trial Court where the bail application moved on behalf of the applicant was declined vide impugned order dated 14- 12-2009 giving rise to the present application.
5. ' It is mainly contended by the learned counsel that all the P. Ws. Are police officials and subordinates of the complainant hence they are inimical, partisan and hostile to the present applicant. He pointed out that there are no details given in the F.I.R. Regarding number, shape, weight or size of the contraband allegedly recovered from the possession of the applicant. He contended that allegedly 200 grams were taken out of 1100 grams for chemical analysis but there is no description given in F.I.R. That whether the sample from each piece of Charas was taken or not therefore, at the most applicant/accused can be held responsible to the extent of 200 grams and thus prosecution case against the present applicant would fall under section 9(b) CNS Act, 1997 which does not fall within the prohibitory clause of section 497, Cr.P.C.
6. ' On the other hand, learned counsel for the State has conceded to the above position and raised no objection to the grant of bail.
7. I have carefully considered the submissions placed by learned counsel for the parties and perused the material brought on record. It seems that at the time of arrest, the applicant was carrying black plastic bag from which allegedly 1100 grams Charas was secured in the shape of different pieces out of which 200 grams were separated for chemical analysis. It is consistent view being taken by the honourable apex Court while granting bail that at the bail stage, 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. Besides this, 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., which , at least in the case in hand, could be determined at the trial as there is no mention in the F.I.R. Whether the sample was taken from each piece of narcotic substance or not and even the shape, size and number of pieces of alleged contraband is not disclosed in the F.I.R. It is to be considered, that the slight increase in the quantum of narcotic substances could enhance the punishment exorbitantly and even sentence of death could be provided therefore when slight change in the quantum of substance was affecting very seriously the life of human being the allegation of prosecution in respect of recovery of specific substances, was to be checked very strictly and to be proved beyond doubt, to which the trial Court failed to appreciate while declining the bail plea to the applicant. If any authority is needed, in the circumstances of the case, one may refer to a full bench judgment passed by the Honourable Apex Court in the case of Muhammad Hashim v. The State PLD 2004 SC 856 and a Division Bench decision in the case of Nadeem v. The State 2007 M LD 1092.
8. From the above discussion, it appears that at this stage, case against the present applicant at the most, falls under section 9(b) CNS Act and the guilt of applicant in the commission of offence calls for further inquiry as the entire quantity of narcotic of which applicant/accused has been allegedly involved, is to be established as narcotic, at the trial, hence the applicant was able to make out a case for grant of concession of post-arrest bail which was allowed by my short order dated 1-3- 2010 and these are the reasons for the same.