1. 'MUHAMMAD ISMAIL BHUTTO, J.---Learned counsel for the applicant submits that the applicant has been involved falsely in this case. Alleged recovery of 1000 grams of Charas has been shown against him in shape of pieces, out of which only ten grams was sent for chemical examination.
2. Number of pieces is also not given in the Mashirnama of F.I.R. Nor it is mentioned that sample of 10 grams was taken from each piece of Charas, therefore, present applicant can be held responsible for only 10 grams which falls under section 9(a) of CNS Act, 1997. Even otherwise, only one Kg of Charas has been allegedly recovered from the possession of applicant which falls under section 9(b) of CNS Act, 1997 which carries punishment upto 7 years and does not fall within prohibitory clause of section 497 Cr.P.C. He further submits that to increase the gravity of offence, further recovery of Charas from the house of co-accused Muhammad Azeem has been shown on the information of present applicant, who is not the owner of said house. He submits that section 6 of CNS Act, 1997 will not apply to the case of present applicant and so far section 25 of CNS Act, 1997 is concerned, it has been held that if the recovery is from highway, bus stop or railway station then association of private mashirs is necessary, but if recovery is from house then private persons can be associated. He has relied upon 2007 M LD 1092, unreported orders of this Court passed in Cr.B.A.
3. No,221 of 2009 and Cr.B.A. No,49 of 2009. In the light of above submission, learned counsel has prayed for grant of bail to the applicant.
4. 'On the other hand, learned SPP for ANF submits that ANF police on the information of informer raided the house of co-accused Muhammad Azeem where three persons were available, out of whom one person namely Rustam ran away throwing the bag containing 5 Kgs. Of Charas while two persons were apprehended at the spot. 5 Kgs. Charas was recovered from co-accused Muhammad Azeem in shape of slabs while one Kg of Charas was recovered from the possession of applicant in shape of pieces so also from the house of Muhammad Azeem further 70 Kgs of bhang and 12 litres of country made wine was recovered from there so also on the information given by applicant police further recovered 12 Kgs Charas from the house of co-accused Muhammad Azeem including golden ornaments and cash of Rs,68,000, one unlicensed SBBL gun, one 222 machine gun and 11 rounds of 7.62 mm and 7 cartridges. He further submits that accused are not interested to proceed with the case as they are seeking adjournment in presence of P.Ws. He relied upon 2001 M LD 1922 Peshawar, wherein bail was refused on the ground that 1040 grams of Charas was recovered from the accused. Section 25 of CNS Act, 1997 says that there is no necessity of association of private persons to witness the recovery. It is barred in narcotics cases. In view of above arguments, he opposed for grant of bail to the applicant.
5. I have heard learned counsel for the applicants and learned A.A.-G so also have gone through the material available on record. Admittedly, police has raided the house of co-accused Muhammad Azeem and arrested two accused with contraband substances and only one Kg of Charas in shape of pieces was recovered from the applicant but neither there is number of piece nor weight of each piece was given nor it was mentioned that from which piece of Charas, 10 grams was separated for chemical analysis. Present applicant cannot be held responsible for joint recovery as pleaded by learned SPP that on his information further 12 Kgs of Charas was recovered from the house of co- accused Muhammad Azeem. It is also not the case of prosecution that applicant is relative of co- accused Muhammad Azeem so also it is not mentioned in the F.I.R. That on whose information accused came to know about presence of Charas in the house of Muhammad Azeem. It is only to increase the gravity of offence. It is said that applicant gave information about availability of further Charas for whom he cannot be held responsible at bail stage. At the most, applicant can be held responsible for quantity of one Kg which was allegedly recovered from him and it falls under section 9(b) of CNS Act, 1997 which does not fall within prohibitory clause of section 497, Cr.P.C. In case of 2006 SCM R 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. The State that when half kilogram Charas was sent for chemical examination out of 2 Kgs, then the accused cannot be held responsible for entire lot.
6. In the light of above authorities, present applicant can only be held responsible for only ten grams sent to the chemical examiner. It is also clearly mentioned in the report of chemical examiner that envelope No,6 is regarding sample sent for chemical analysis for applicant Rahib. It is in shape of one piece of ten grams, which shows that sample was not taken from each piece of Charas and ten grams of Charas falls under section 9(a) of CNS Act, 1997 which carries punishment of two years.
7. 'In view of above circumstances, I am of the considered view that the applicant has made out a case of further enquiry. Hence, this bail application is allowed and applicant is enlarged on bail subject to his furnishing solvent surety in the sum of Rs,300,000 (three lacs) with PR bond in the like amount to the satisfaction of the trial Court.