' MUHAMMAD TASNIM, J.---Present applicant is booked in Crime No,558 of 2010, under section 6/9(c) C.N.S. Act, 1997; Police Station New Karachi and through this bail application, applicant has prayed for grant of bail.
2. Prior to filing of this bail application; applicant approached the trial Court and filed bail application, which was rejected by the learned Trial Court per order dated 8-2-2011 for the reasons mentioned therein. Applicant felt himself aggrieved and filed the present bail application.
3. The facts, as set out in the F.I.R, are that S.H.O/Inspector Kamal Naseem posted at Police Station New Karachi was busy in patrolling of area along with police personnel S.I Mulazim Hussain, PC Haji Khan-14388, PC Maqsood Ahmed-8240, PC Driver Kateel Abbas-8854 on police mobile. S.P-7167, during that special spy informer informed that one person who belongs to District Larkana and he is habitual criminal and Government of Sindh has fixed prize for his arrest, who is selling charas on the back side of the telephone exchange North Karachi. Therefore, on this information, S.H.O/Inspector reached at said place along with co-police personnel at 22-00 p.m. On the pointation of special spy informer arrested the present applicant with the help of co-police personnel, Inayat alias Ano son of Shah Nawaz Abro. Due to eon-availability of private witnesses took his person search in presence of co-police personnel S.-I. Mulazim Hussain and others, recovered 1050 grams charas rounded in black plastic in shape of (chittar) which was in his hand along with selling price of Rs,465 therefore from recovered charas a piece of 3o gram of charas was cut-of and sealed for the test of chemical examiner whereas the remaining 1020 grams charas was kept in separate pack and sealed.
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4. In support of present bail application, learned counsel for applicant has submitted that at the time of arrest of applicant or alleged recovery no private witness was associated by police, though they claim to have spy information earlier in time. He further submitted that only 1050 grams of charas as alleged to have been recovered from the applicant. He urther submitted that maximum punishment for the offence can be inflicted is seven years, which does not fall within prohibitory clause. Learned counsel further submitted that this is a border line case as only 50 grams charas exceeds 1000 .Grams and it is yet to be decided at trial as to whether case falls under sections 6/9(b) or (c) of the C.N.S. Act, 1997. In support of his contentions learned counsel relied upon the following case-law:--
(1) Mst. Fahmida v. The State (19978 SCMR 947);
(2) Asif Ali v. The State (2003 PCr.LJ 540);
(3) Nawaz v. The State (2004 YLR. 1118);
(4) Ayaz v. The State (2011 PCr.LJ 177);
(5) Taj Ali Khan v. The State (2004 YLR 439);
(6) Rayasat Ali v. The State (2005 YLR 1862);
(7) Mahboob Ali v. The State (2007 YLR 2968); and
(8) Gulab Hussain v. The State (2009 YLR 189).
5. Conversely, learned A.P.-G. Has vehemently opposed the grant of bail and has submitted that present applicant is involved in as many as eight criminal cases and he is habitual offender, if bail is granted to him he will misuse the bail and will commit similar type of offence. Learned A.P.-G. Has further submitted that section 25 of C.N.S. Act, 1997 ousts the application of section 103, Cr.P.C. To contend that private witnesses were not required to be associated at the time of arrest or recovery.
However learned A.P.-G. Admits that in none of the cases present applicant has been convicted. In support of his contentions learned P.G. Has placed reliance on Hanook Babar Masih The State (2007 YLR 3105).
6. I have heard the learned counsel for the parties and have perused the record as well as case- law cited at bar.
7. It is admitted position that alleged recovery of 1050 grams of charas is marginally exceeding boundary of 1000 grams, which does not fall within the prohibitory clause. It is yet to be decided at the trial as to whether case of the present applicant attracts the provisions of section 6/9-(b) or
(c) of the C.N.S. Act, 1997.
8. With regard to the contention of learned counsel for applicant that the case of the present applicant is borderline case and it is yet to be decided whether the case falls under clause-b or c of section 9 of the C.N.S. Act, 1997. Following judgments passed by different Courts are relied upon and relevant observations from such judgments are quoted hereunder:-- "In case of Gulab (supra) learned Single Judge, of Peshawar High Court while dealing with the discrepancy in weight of recovered substance observed as under:-- "The charas recovered is 1200 grams which by margin exceed 1000 grams. The Court while seized of the bail application has also to keep in mind the maximum sentence likely to be awarded to the accused. In this case the record does not show that the accused is a previous convict or involved in such like cases Thus, in view of the dictum laid down in the case of Noor Ali Khan v. The State and others reported in 2003 MLD 1637 (Peshawar). The accused/petitioner is entitled to the concession of bail"
Similarly in case of Mehboob Ali (supra) the learned Divisional Bench of this Court has observed as under:-- "The contraband charas weighing 1010 grams has been recovered from the possession of applicant during the raid. The quantity of 1010 grams marginally exceeds the limits of thousand grains, therefore, a borderline case in between clauses (B) and (C) of section 9 of Control of Narcotic Substances Act, 1997 is a point of discussion and further enquiry to determine the guilt of the applicant. The applicant/ accused was arrested on 3-9-2006 and the case has not been fixed for recording the evidence by the trial Court as pointed out by learned counsel for the parties"
' In case of Taj All Khan (supra), the learned Single Judge of Peshawar High Court observed as under:- "Not only because the quantity of 500 grams marginally exceeds the upper limit of 1000 grams, therefore, being, a borderline case between clauses (B) and (C) of section 9 and also because in the given circumstances whether maximum punishment of 14 years provided in the alternative would be awarded or not is also a point of discussion and further enquiry. Also from the record it is established that he is a previous convict or involved in the same and similar offence in the past".
' Lastly, in case of Rayasat Ali (supra), the learned Divisional Bench of this Court while dealing with the discrepancy in the substance shown in the F.I.R. And the substance as per Chemical Examiners report has extended benefit of doubt to the accused in the following words:-- "Mr. Samo contended that according to Mashirnama of recovery and F.I.R., 1100 grams of Charas were recovered from the possession of applicant Rayasat Ali, while according to Chemical Examiner's report, the net weight of entire Charas was 978 grams. There is discrepancy of 122 grants for which there is no explanation. He has further submitted that the applicant is businessman and has been falsely implicated because of enmity with Pak Colony Police. He has further submitted that there is a delay of 17 days in sending the sample to Chemical Examiner. The alleged recovery is dated 13-10-2004 and the sample has been sent on 1-11-2004. The learned counsel has submitted that the applicant is entitled to the benefit of doubt even at the bail stage and consequently, he is entitled to be released on bail as it is a case of further enquiry, as envisaged under subsection (2) of section 497, Cr.P.C. He has further pointed out that even the trial Court has observed that difference in two weights can be resolved after recording of evidence of complainant."
9. With regard to the contention of learned A.P.-G. That applicant is involved in eight criminal cases, on the point the honourable Supreme Court of Pakistan in the case of Mst. Fahmida (supra), their lordships have held as under:-- ....In our view, an accused should not be denied the concession of bail only on the ground that some cases are pending against him. It may be added that in this case out of the 6 cases alleged to have been registered against her, the petitioner has been acquitted in 3 cases and in the other 3 cases she is on bail."
10. Applying the above rule to the present case, it can safely be concluded that a person cannot be denied the concession of bail only for the reason that he is facing trial in some cases. It is also admitted position that present applicant has not been convicted in any of the case. On the contrary, learned counsel for applicant has brought on record release letter dated 10-2-2001 in Sessions Case No,141 of 2010 of learned IV-Assistant Sessions Judge, Larkana, letter dated 16-3-2011 in Sessions Case No,74 of 2008 of learned Ist. Additional Sessions Judge, Larkana and letter dated 28-4-2011 in Case No,416 of 2010 of learned III-Civil Judge and J.M. Larkana, acquitting the present applicant under sections 265-K and ,249-A Cr.P.C. Respectively.
11. With regard to association of private witnesses at the time of arrest and recovery, the learned Division Bench of this court in a case of Nawaz (supra), their lordships while dealing with the point in issue have 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 alleged offence is 7 years which does not fall within the prohibitory clause contained under section 497, Cr.P.C. The accused is behind bars for last four months. Keeping in view the peculiar circumstances of the case we are inclined to grant bail to the applicant."
12. In case of Asif Ali (supra), another learned Division Bench of this Court has granted bail to the applicant on the ground that no private witness was associated at the time of arrest and recovery though police claimed to have spy information earlier given to them. Applying the above rule as laid down by the learned Division Bench of this Court to the facts and circumstances of this case, as no private witness admittedly associated by the police at the time of arrest and recovery, makes the case of prosecution doubtful and entitles the present applicant to be admitted on bail.
13. With regard to the judgment cited by learned A.P.G. i.e, Hanook Babar Masih (supra), the same is distinguishable on facts and does not improve the case of prosecution.
14. From the aforesaid discussion, applicant has made out a case of further enquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly I admit the present applicant to bail on his furnishing solvent surety in the sum of Rs,1,00,000 (Rupees One Lac) and P.R. Bond in the like amount to the satisfaction of learned trial Court.