' SALMAN HAMID, J.---Aggrieved and dis-satisfied by an Order dated 6-1-2011 passed by learned Special Judge CNS, Larkana, in Criminal Bail Application No,1446 of 2010, preferred by the present applicant, instant application for bail has cropped up.
2. Per the case of prosecution an F.I,R under section 9(c) of Control of Narcotic Substances Act, 1997 (CNS Act), on 2-11-2010, was registered at P.S. Rehmatpur against the applicant and one absconding accused, Waheed Detho. Per the contents of F.I.R the applicant was' found to be in possession of three kilograms charas (contraband) which was recovered from his possession and one kilogram contraband from the motorcycle by which he was found to be standing. Requisite sample was obtained from the contraband, sealed and sent for chemical examination.
3. Case of the applicant before this court was that though it is alleged in the F.I.R that four kilograms contraband was recovered from the applicant, the sample that was obtained was only from one kilogram contraband stated to have been recovered from the motorcycle by which he was found standing. No sample from three kilograms contraband that was stated to have been recovered from the body of the applicant was obtained. Therefore, it was argued that at best the case under section 9(b) of CNS Act was made out and the offence mentioned there against is bailable. It was also argued that the above argument was supplemental inasmuch as that according to learned counsel for the applicant no, contraband was recovered from the applicant and the same vas foisted on him. In support of his contentions, learned counsel for the applicant, relied upon the cases of Pervaiz Ahmed v. The State (PLD 2008 Karachi 14), and Muhammad Hashim v. The State (PLD 2004 Supreme Court 856).
4. Learned counsel for the prosecution resisted the application. In rebuttal it was argued that the recovery was made from the body of the applicant as well as the motorcycle which in all weighed four kilograms. Therefore, the case that was registered under section 9 (c) CNS Act was justified. It was also argued that the sample was collected properly and was sent for chemical examination.
Result of the chemical examination is positive and does not in any manner affects the case of the prosecution.
5. Arguments heard. Record perused and case-law cited, looked into.
6. The narration of the F.I.R. Shows that at the time of arrest of the applicant he was found to be in possession of three kilograms and one kilogram contraband, respectively recovered from him and the motorcycle by which he was found standing. It was argued that at best one kilogram contraband could be attributed with the applicant inasmuch as that sample was obtained only from one kilogram contraband and was sent for chemical examination, and therefore, he becomes entitled to bail having fallen into the provision of section 9(b) CNS Act.
7. In the case of Pervazi Ahmed (supra). Relied upon by learned counsel for the applicant a decision bench of this court enlarged the accused on bail on the ground of further inquiry inasmuch as that contraband in question was found in shape of five separate slabs/Pettier but only one slab/Petti was sent for chemical analysis and that no expert opinion was available regarding the remaining four slabs/Petties as to whether those contained any narcotic substance or not. Under the circumstances, it was held by a Division Bench of this court that since only one Slab/Petti of contraband was separately sent for chemical analysis report, which weighed only one kilogram, the chemical report would be conclusive only to that extent. The question whether the entire recovered substance was covered by the definition of narcotics was left to be properly determined at the stage of trial when sufficient evidence would be brought in looking at such aspect of the case, the division bench of this court came to the conclusion that prima facie the case of the accused therein had fallen under the provisions of section 9(b) CNS Act, punishable to the extent of seven years and therefore, he was enlarged on bail.
8. Similarly, in the case of Muhammad Hashim (supra), relied upon by the learned counsel for the applicant the Hon'ble Supreme Court of Pakistan reversing the concurrent finding of dismissal of bail to the accused enlarged him on bail-by holding that record and recovery memo showed that four grams of contraband was obtained as sample out of total 228 rods and nothing was available on record to show that the samples for examination were sent from each of the 228 rods. Looking at the stringent sentence having been provided under the CNS Act it was held by. The Hon'ble Supreme Court of Pakistan that the provisions thereof had to be construed strictly and the relevant provisions of law, dealing with the procedure, like the report of the expert were also to be followed strictly in the interest of justice, otherwise in such like cases it would be impossible to hold that the total commodity recovered from the possession of the accused was contraband. Since in the cited case the samples had been obtained only from 1 rod and as for as the remaining rods were concerned in absence of any sample therefrom, the Hon'ble Supreme Court came to the conclusion that it would not be possible to hold that they were rods of the contraband or otherwise.
Taking into consideration all the above aspects, the accused was enlarged on bail.
9. Under section 51(2) of CNS Act if the court is of the opinion that it is a "fit case" for grant of bail and against the security of a substantial amount, the bail could be granted. The applicant has been able to show favourable circumstances to pass the test of a "fit case", and a. Case for bail has been made out. Hence looking at the facts and circumstances of the case in hand and the fact that sample of only one kilogram was sent for chemical examination out of four kilograms contraband stated to have been recovered from the applicant, I am of the opinion that the applicant has been able to pass the test of "fit case", as contemplated under subsection (2) of section 51 of C.N.S. Act, as well as test of subsection (2) of section 497, Cr.P.C. i,e, further inquiry.
Therefore, the applicant is enlarged on bail provided he furnish security in an amount of Rs,300,000 (Three hundred thousands), with P.R. Bond in the like amount to the satisfaction of the trial Court.
10. Outcome of this bail application, being tentative assessment, should not come into the way of the trial court, which would decide the trial of the case on its own merits.