1. ORDER MUHAMMAD TASNIM, J---The Applicant is booked in Crime No. 4 of 2010 registered with Police Station ANF, Sukkur, for offence under section 9(c) Control of Narcotic Substances Act, 1997.
2. Brief facts of the case, according to F.I.R. Are that on 27-4-2010 the Police party while on patrolling reached Kot Bullo on the National Highway, they received spy information as to the selling Charas by Yousif Khan at Lakhi Marwat Hotel, Faisal Petrol Pump, and when the Police . Party reached the pointed place, they saw and apprehended a person, who was holding an iron box in his possession, on whose body search thirty pieces of Charas, one CNIC, one mobile phone, cash Rs.5,300 and a key of the box were secured. The box, which he was holding, was also secured, wherein Charas and Cash Rs.75,000 were found, and the total Charas, on weight, was found to be 1100 grams which was sealed and sent for chemical examination.
3. Learned counsel for the applicant submits that it is a border line case and it is yet to be seen either provisions of section 9(b) Control of Narcotic Substances Act, 1997 or 9(c), Control of Narcotic Substances Act, 1997 are attracted. He further says that no private person was associated at the time of raid though spy information was received by Police in advance. He further says that there is delay of one day in sending sample for chemical examination. He further says that accused was never involved or convicted in similar cases in past and, for the first time, he has been booked in this case. His last argument is that it is not clear from the reading of F.I.R. That alleged recovered Charas contained upto what percentage of dust and what was the actual weight of Charas. He says that the applicant is entitled to bail for the aforesaid deficiencies. In support of his contentions, he relied upon Ghulam Murtaza v. The State (PLD 2009 Lahore 362), Dilabaz Khan v.
4. The State (2008 PCr.LJ 1437), Ibrar v. The State (2008 PCr.LJ 1449), Muhammad Munir v. The State (2008 YLR 693) and Noor Ali Khan v. The State (2003 MLD 1637).
5. On the other hand, learned SPP vehemently opposed the grant of bail on the ground that 1100 grams of Charas was recovered from the applicant and so also substantial amount of Rs. 80,300 was recovered, which according to him, is the Sale money of Charas which the applicant was allegedly selling at the Hotel. He further says that as per Prosecution case, private parties were asked to act as Mashir but they refused due to fear of drug paddlers. He also says that there is no delay in sending sample as the raid was conducted at 1650 hours on 27-4-2010, and on the next day in the morning, the sample was forwarded to Laboratory. In support of his contentions, he relied upon Muhammad Ishaque v. The State (2007 YLR 1026), Such a Gul v. The State (2000 PCr.LJ 945), Muhammad Razzaque v. The State (2006 YLR 1833) and Muhammad Ishaque v. The State (2002 PCr.LJ 746).
6. I have heard the learned counsel for parties and have gone through the record as well as the case law cited at the bar.
7. There seems to be substance in the argument of learned counsel for the applicant that there is dispute in the chemical examination report that alleged recovered substance was entirely narcotics or it was Garda Charas or Charas. Similar point has come up for consideration in the case of Muhammad Munir (Supra) before a learned D.B of the Lahore High Court and the Bench, while dealing with the aforesaid point, has held as under:-- "We have heard the learned counsel for the parties and have examined the Police record.
8. Undisputedly petitioner has no criminal history to his credit, as he is not involved in any other alike case. The alleged recovered "Garda Chards" is not Narcotic in its entirety and the Chemical Examiner has not mentioned percentage of Narcotic Substance, therein, which makes the case of the petitioner that of further inquiry. "Garda" is dust and its meagre quantity allegedly recovered from the petitioner would not make him a trafficker/ peddler of contraband. The offence charged is not covered by prohibitory clause of section 497, Cr. P. C . "
9. Other argument of learned counsel for the applicant that there appears a doubt regarding weight of the substance, allegedly recovered from the applicant to come to the conclusion as to whether the provisions of section 9(b), Control of Narcotic Substances Act, 1997 or of 9(c), Control of Narcotic Substances Act, 1997 will be attracted. In such situation where case is of border line case, it is the consistent view of Superior Courts that bail is to be granted to the applicant and to allow the prosecution to lead evidence so that it may be seen as to which provision of the Control of Narcotic Substances Act, 1997 will be attracted in the circumstance of the case. This point was considered by learned Single Judge of Peshawar High Court in the case of Ibrar (Supra), wherein learned Single Judge while dealing with the issue considered number of precedence, has come to the following conclusion:-- "Without discussing deep merits of the case at this stage, prima facie, the case of the accused/petitioner falls within the ambit of farther inquiry entitling him to the concession of bail, as it is yet to be determined at the trial whether the case falls under section 9(b) or 9(c) CNSA being of a border line case and there is no independent witness to the recovery. Reliance in this respect is placed on the cases supported as 2004 YLR 439, 2006 PCr.LJ page 726 and 2005. PCr.LJ 345)."
10. The contention of learned counsel for the applicant that there is delay in sending sample does not carry any substance as the raid was conducted in the evening of 27-4-2010 and on the next day, the substance was referred to the Chemical Examiner. However, there is no material on record to substantiate that present applicant was previously booked, involved or prosecuted in the case of Narcotics, or has been convicted, as submitted by learned counsel for the applicant. He further says that Police has booked the present applicant in the present crime at the instance of some interested person with whom the present applicant has business rivalry. With regard to the contention of learned SPP that a substantial amount of Rs. 80,300 was recovered at the time of raid from the person of applicant, it no way connects the present applicant with the commission of offence as presence of money would not show that this is sale money of Charas. Similarly, the argument of learned SPP that no private person agreed to act as Mashir is yet to be decided after recording evidence of the parties. The Judgments cited by learned SPP are distinguishable on facts and do not apply to the case in hand.
11. Since there is discrepancy in the Chemical Examiner's Report with regard to substantiate as to whether the entire substance was Charas or Garda Charas, I am in respectful agreement with the judgment of learned D.B of Lahore High Court and by following the same, I hold that this is a fit case in which further enquiry in terms of subsection (2) of section 497, Cr.P.C. Is called for.
12. Accordingly, I admit the applicant to bail on his furnishing solvent surety in the sum of Rs.5,00,000 (Rupees Five Lac) and execution of Personal Bond in the like amount to the satisfaction of the trial Court.
13. It has been stated by learned SPP that there are only two witnesses and one month's time would be enough to conclude the trial. I feel that 45 days would be enough to conclude the trial. Learned - counsel for the applicant has assured the Court that he will not seek any adjournment and shall not delay the trial. If the applicant's side takes date or misuses the bail, the Prosecution shall be at liberty to move to the learned trial Court for cancellation of bail.