' MUHAMMAD TASNIM, J.---Applicant/accused Asghar son of Hukoom Dad is booked in Crime No,788 of 2010 registered under sections 6/9-B, 6/9-C of CNS Act, 1997, at Police Station Mochko. In the first place the applicant approached the learned trial Court and moved bail application which was dismissed per order date 29-1-2011 by learned Special Judge-II (CNS), Karachi. Feeling aggrieved against the aforesaid order present bail application has been filed.
2. The facts as stated in the F.I.R. Are that SIP Akhtar Hussain posted at Police Station MOCHKO along with other subordinate staff, namely, PC Muhammad. Aslam, PC Parvaiz Akhtar and PC Driver Muhammad Raheem was busy in area patrolling at about 0015 hours they reached near Pakistan Hotel, Muhammad Khan Colony, Itahad Town, where he saw two suspicious persons who were sitting aside on road and they tried to hide from the police party the complainant tried to apprehend them with the help of subordinate staff but one of them escaped, however, while running he threw one Chattar of charas; SIP apprehended other one who disclosed his name as Zahid Khan son of Janan Mehar and disclosed the name of the absconder as Asghar son of Hukoom Dad; due to night time and non-availability of private witnesses PC Muhammad Aslam and PC Muhammad Raheem conducted the personal search of the accused Zahid Khan son of Janan Mehar and recovered one piece of Charas weighing 250 grams from his right side pocket of his shirt; absconding accused., namely, Asghar son of Hukoom Dad at the time of escape threw away one Chattar of Charas weighing 1030 grams which was also taken into possession; 10/10 grams Charas from each separately sealed recovered from the possession of accused Zahid and recovered Charas from the absconding accused were sealed for chemical analyses and other separately sealed on the spot; from the search of accused Zahid recovered cash Rs,200, mobile phone China set Blue Tooth and NIC colour copy taken into possession; the act of the accused Zahid Khan son of Janan Mehar falls above under section and the arrested accused whereas the act of the above accused falls under sections 6/9-C, 6/9-B, Narcotics. Control Act.
3. Learned counsel for the applicant has submitted that the applicant was not arrested at the spot but on the statement of co-accused Zahid Khan, no recovery was effected from the present applicant but it is alleged in the F.I.R. That at the time of arrest of co-accused the present applicant ran away by throwing the packet in his hand which was containing 1030 grams of Charas. Sample of Charas allegedly recovered from the present applicant was sent to the Chemical Examiner after delay of seven days. Learned counsel for the applicant has submitted that delay in sending the sample to the Chemical Examiner has seriously prejudiced the case of present applicant. It is argued that no private witness was associated at the time of arrest of present applicant. Learned counsel has submitted that the case of the present applicant is a borderline case and is yet to be decided at the trial as to whether punishment upon the applicant will be inflicting under section 6/9(b) or 6/9(c) of CNS Act, 1997.
4. In support of her contentions learned counsel for the applicant/accused has relied upon a Full Bench Judgment of the Lahore High Court in the case of Ghulam Murtaza and another v. The State (PLD 2009 Lahore 363), Nawaz v. The State (2004 YLR 1118), Muhammad Shahid v. The State (2009 YLR 167), Akhtar Jan v State 2009 YLR 45, Asghar Ali v. The State (2009 PCr.LJ 660) and Ghafoor Ahmed v. The State (2009 YLR 123). Learned counsel submits that no doubt law provides maximum punishment of seven years in a case where upto 1000 grams of charas was allegedly recovered, but in view of the Judgment of Full Bench of Lahore High Court in the case of Ghulam Murtaza (supra) as per schedule punishment comes to one year and ten months.
5. Conversely, learned A.P.-G. Has argued that the present applicant is facing trial in two criminal cases and there is no enmity of the applicant with the police officials hence there is no question of implicating the applicant in a false case arise. Learned A.P.-G. Says that applicant may not be enlarged on bail.
6. I have heard the learned counsel for the parties and, perused the record of this case as well as case-laws cited at bar.
7. It is well-settled principle of law that at bail stage deeper appreciation of the record cannot' be gone into but only tentative assessm ent is to be made just to find out as to whether the present A applicant/accused is prima facie connected with the commission of the offence or not. Keeping in view the above settled principle and the judgment of the Hon'ble Supreme Court of Pakistan in the case of HAKIM MUMTAZ AHMED and OTHERS V. THE STATE (PLD 2002 SC 590) in mind, the prosecution must have associated some private person as witness at the time of arrest of applicant.
8. The case, of NAWAZ V. THE STATE (2004 YLR 1118) cited by the learned counsel for applicant/accused a Learned Division Bench of this Court with regard to the citing private witness at the time of recovery has observed as under:,-- "Though private persons are not required to witness the recovery of Narcotics substance as provided under C.N.S. Act yet the place of recovery and the time of recovery has to be kept in view to prevent false implication of innocent people, looking to the general conduct of police. The maximum punishment provided for the offence is 7 years which does not fall within the prohibitory clause contained under section 497, Cr.P.C. The accused is behind bars since last four months.
Keeping in view the peculiar circumstances of the case we are inclined to grant bail to the applicant."
9. Admittedly, present applicant was not arrested on the spot but on the statement of co-accused he was subsequently arrested but at the time of arrest no private person was associated which makes the case of prosecution doubtful. Even otherwise, the maximum punishment for the alleged offence is provided seven years which does not fall within the prohibitory clause.
10. In the case of Hakim Mumtaz Ahmed (supra) the Hon'ble Supreme Court of Pakistan has held as under:-- "Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused. Allegations against accused, thus, needed further enquiry."
11. In this view of the matter, I find that the case of the prosecution requires further enquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, I admit the applicant/accused on bail subject to his furnishing surety in the sum of Rs,100,000 (Rupees One Lac only) with P.R. Bond in the like amount to the satisfaction of the trial Court.
12. The above are the reasons of the short order passed on 13-5-2011.
13. The observations made herein above are tentative in nature and shall not affect the merits of the case triable by the trial Court.